Thursday, August 09, 2012


Ruling ‘chills the speech of potential whistle-blowers in a culture that is already protective of its own’

Federal court ruling in California might not fly in states not under the jurisdiction of the Ninth Circuit.

By Eric Hartley

Los Angeles Daily News
August 7, 2012

In a ruling it said could discourage police officers from blowing the whistle on misconduct, a federal appeals court on Tuesday reluctantly upheld a lower court's dismissal of a First Amendment lawsuit filed by a former Burbank police detective.

The decision turned on a 2009 ruling by another panel of the same court, the U.S. Ninth Circuit Court of Appeals. The earlier case held that disclosure of police misconduct, even done against the orders of superiors, is a professional duty of police officers and thus not protected by the First Amendment.

Burbank Detective Angelo Dahlia accused colleagues of beating suspects during a 2007 robbery investigation. After he spoke to internal and outside investigators about the allegations, he was placed on administrative leave pending discipline, according to his lawsuit.

Dahlia, who left the department in 2010, claimed violations of his First Amendment rights, retaliation and other civil rights violations.

But a judge ruled he could not sue in federal court because of the 2009 ruling in Huppert v. City of Pittsburg, which involved a police officer in a city northeast of Oakland.

On appeal, the three-judge panel said it could not overturn a previous holding by a panel of the same court. But it used unusually strong language in criticizing fellow judges.

"The reasoning in Huppert that professional duties can be determined as a matter of law is wrong, and the result that reports of police misconduct are not protected by the First Amendment is dangerous," Judge Kim McLane Wardlaw wrote for the unanimous panel.

The judges said the result "chills the speech of potential whistle-blowers in a culture that is already protective of its own."

The First Amendment question is key, since the government may not stifle the speech of someone speaking as a private citizen, even if that person also is a government employee.

The appellate judges said a lawsuit like Dahlia's should move forward until it's determined whether the officer was speaking in his official capacity or as a private citizen.

Instead, the court said, the result is "that the act of whistleblowing is itself a professional duty of police officers, thus stripping such speech of the First Amendment's protection."

That logic applies only in the Ninth Circuit, which covers California and seven other western states.

Burbank City Attorney Amy Albano said Tuesday's ruling applies only to a "limited circumstance" and police officers have other protections against being disciplined or fired for reporting misconduct. A lawsuit Dahlia filed in state court is still pending.

"The real facts of the case never came out," Albano said. "This case doesn't tell you why was he placed on administrative leave."

She declined to elaborate.

Since 2009, Burbank has faced state and federal lawsuits by a dozen current or former Police Department employees, including the two by Dahlia. Most stemmed from the same scandal, which led to an outside investigation by the L.A. County Sheriff's Department.

The suits have claimed discrimination, harassment, retaliation and wrongful termination.

The city has prevailed in five cases, either winning at trial or getting them tossed. Plaintiffs won in two, with juries awarding one plaintiff $1.29 million and another $150,000. Other cases are pending.

Through June 30, the city had spent close to $5.9 million on its defense, including outside attorneys.

With new leadership, Albano said, the Police Department has resolved most of the problems that led to the scandal.

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