PAEZ, Circuit Judge:
In this case we address the extent to which a police officer retains First Amendment protection when he discloses his fellow officers' misconduct. Angelo Dahlia, a detective in the Burbank Police Department ("BPD"), brought this 42 U.S.C. § 1983 First Amendment retaliation suit against the City of Burbank, the Chief of Police and several other police officers. The district court granted the defendants' motions to dismiss the § 1983 cause of action for failure to state a claim. Fed. R.Civ.P. 12(b)(6). The court reasoned that, under Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.2009), Dahlia's disclosure to the Los Angeles Sheriff's Department ("LASD") of his fellow officers' misconduct was not subject to First Amendment protection because he had a professional duty, as a matter of California case law, to report misconduct. The district court also held that Dahlia's placement on administrative leave did not constitute an "adverse employment action."
We reverse the district court on both grounds and overrule Huppert. We hold that (1) after Garcetti v. Ceballos, 547 U.S. 410, 424, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), courts must make a "practical" inquiry when determining the scope of a government employee's professional duties and that Huppert erred in concluding that California broadly defines police officers' duties as a matter of law for the purpose of First Amendment retaliation analysis; and (2) placement on administrative leave can constitute an adverse employment action. We further hold that, on remand, Dahlia may renew his request for leave to amend his complaint to allege more explicitly which acts are protected by the First Amendment and which acts constitute adverse employment actions.
Following an armed robbery on December 28, 2007, at Porto's Bakery & Café in Burbank, California, Dahlia was assigned to assist in the robbery investigation, which was supervised by defendant Lieutenant Jon Murphy. The day after the robbery, Dahlia observed defendant Lieutenant Omar Rodriguez grab a suspect by the throat with his left hand, retrieve his handgun from its holster with his right hand, and place the barrel of the gun under the suspect's eye, saying, "How does it feel to have a gun in your face motherfucker." Rodriguez noticed Dahlia looking on in disbelief. Later that same evening, Dahlia heard yelling and the sound of
Dahlia was subsequently excluded from participating in suspect interviews, and high-ranking officers within BPD essentially took control of the investigation. Witnesses and suspects continued to be physically assaulted and beaten in BPD's interview rooms, while officers prevented anyone from walking past the rooms or into the audio room. Dahlia met with Murphy to disclose the abuse that he had witnessed. Dahlia told Murphy that the interviews were getting too physical and that Dahlia was having difficulty maintaining order in the investigation. Murphy responded by telling Dahlia to "stop his sniveling."
The physical beatings continued in BPD interview rooms and in the field, evidenced by the booking photos of various suspects. At one point, Chief of Police Stehr appeared at a briefing and, upon learning that not all of the robbery suspects were in custody, said, "Well then beat another one until they are all in custody."
After witnessing the misconduct and abuse, Dahlia approached Murphy a second time and pleaded that he did not have control over the case. Murphy became upset and told Dahlia that he "didn't want to hear this shit again" and that he was "tired of all the B.S." In January 2008, Dahlia and another detective met with Murphy a third time, telling him that "the beatings have to stop" and "the madness ha[s] to stop." Murphy did nothing to respond to these complaints and the abusive tactics continued.
In April 2008 officers learned that BPD's Internal Affairs ("IA") unit was planning to investigate the unlawful physical abuse and the other illegal procedures relating to the Porto's robbery investigation. Around the same time, Rodriguez began going out of his way to monitor Dahlia and ultimately threatened him not to say anything to IA. As the IA investigation grew nearer, Rodriguez and Penaranda contacted Dahlia on a daily basis, threatening him to keep quiet. Before the IA investigation commenced, Chief Stehr told an IA lieutenant, "I put you in this position to make it go away."
On April 29, 2008, Dahlia was interviewed for the first time by IA. Immediately after the interview, Rodriguez confronted Dahlia and demanded to know what Dahlia had said during the interview. Dahlia's complaint is silent regarding what he actually said during the IA interview, though he told Rodriguez, out of fear, that he did not say anything to IA. When asked by Penaranda if he had disclosed anything to IA, Dahlia, out of fear for his safety, also told Penaranda that he had not.
On May 8, 2008, IA interviewed Dahlia a second time. After the interview, Dahlia received a call from Rodriguez directing him to report to a park. Dahlia went to the park, believing that there was an incident occurring, but encountered only Rodriguez and another officer there. Rodriguez approached him aggressively and asked, "What the fuck did you tell them?" Rodriguez then asked, almost verbatim, the questions posed by IA and attempted to intimidate Dahlia into revealing his answers. Rodriguez, Penaranda and another officer incessantly harassed, intimidated and threatened Dahlia over the following weeks, to the point where his working conditions were "fully consumed" by the intimidation.
On April 2, 2009, Rodriguez called Dahlia into his office, told Dahlia to sit down, and closed the door and the blinds. Rodriguez then retrieved his gun from its holster, looked at Dahlia, and placed the gun in a drawer. At one point during the meeting, Rodriguez placed his hands on the desk and told Dahlia, "I'm not a fucking cheese eating rat" and then commented that he was not afraid of being suspended or fired. Rodriguez also leaned forward and said, "Fuck with me and I will put a case on you, and put you in jail. I put all kinds of people in jail, especially anyone who fucks with me!" Dahlia reported this incident to the Burbank Police Officers' Association president, who reported it to the Burbank City Manager.
On May 11, 2009, LASD interviewed Dahlia about the Porto's robbery investigation. During the interview, Dahlia disclosed the defendants' misconduct, threats, intimidation and harassment. Four days later, Dahlia was placed on administrative leave pending discipline.
Dahlia alleges that he was subjected to adverse employment actions as a result of his protected speech activities and that there was no legitimate justification for the adverse actions. In alleging a § 1983 violation, Dahlia claims that defendants' retaliatory acts included, inter alia, threats, ostracism, denial of employment opportunities, undue scrutiny of work performance, denial of continued employment, and malicious statements calculated to destroy his reputation.
Dahlia filed his § 1983 complaint in November 2009, alleging seven claims: (1) retaliation against a public employee for speech disclosing police misconduct, in violation of the First Amendment; (2) retaliation against a public employee for disclosing information to a government or law enforcement agency, in violation of California Labor Code section 1102.5; (3) retaliation against a public employee for making an oral or written complaint to a governmental agency, in violation of California Labor Code section 6310; (4) retaliation against a public employee for disclosing an abuse of authority or a substantial and specific danger to public health or safety, in violation of California Government Code section 53298; (5) a violation of the Bane Act, California Civil Code section 52.1(b), which prohibits interference with the exercise of constitutional rights; (6) intentional infliction of emotional distress; and (7) negligent infliction of emotional distress. Dahlia sued the City of Burbank, Police Chief Stehr, Lieutenants Murphy and Rodriguez, Sergeants Penaranda and Jose Duran, and Detective Chris Canales.
Police Chief Stehr moved for summary judgment on several grounds, including qualified immunity. The district court denied
The remaining individual defendants moved, primarily relying on Huppert, to dismiss the case for failure to state a claim. Fed.R.Civ.P. 12(b)(6). Granting these motions, the district court determined that Dahlia's § 1983 claim was barred because (1) he spoke pursuant to his official duties and thus was not constitutionally protected, and (2) placement on paid administrative leave is not an adverse employment action. The district court accordingly dismissed Dahlia's § 1983 claim with prejudice, and declined to exercise supplemental jurisdiction over Dahlia's state law claims.
A panel of this court reluctantly affirmed on the ground that it was bound by Huppert v. City of Pittsburg to conclude that Dahlia spoke pursuant to his official duties. Dahlia v. Rodriguez, 689 F.3d 1094 (9th Cir.2012). In no uncertain terms, the panel stated that "[t]he 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." Id. at 1106—07. Contrary to the district court, the panel found that placement on administrative leave and the resulting consequences, "if proven, ... may very well constitute an adverse employment action." Id. at 1107. Upon a majority vote of eligible judges, we granted rehearing en banc.
We have jurisdiction under 28 U.S.C. § 1291 to review the district court's final judgment dismissing with prejudice Dahlia's claims against Murphy, Penaranda, Rodriguez and the City of Burbank.
"It is well settled that the state may not abuse its position as employer to stifle `the First Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of public interest.'" Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009) (alteration in original) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Moreover, the public has a strong interest in hearing from public employees, especially because "[g]overnment employees are often in the best position to know what ails the agencies for which they work." Waters v. Churchill, 511 U.S. 661,
In Pickering, the Supreme Court defined a balancing test for First Amendment retaliation cases involving public employees. The task for us is to seek "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731; see also Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Court has recognized that "the First Amendment interests at stake extend beyond the individual speaker ... [because of] the importance of promoting the public's interest in receiving the well-informed views of government employees engaging in civic discussion." Garcetti, 547 U.S. at 419, 126 S.Ct. 1951. In the classic whistleblower case the state has no legitimate interest in covering up corruption and physical abuse. As an inevitable result of the Court's jurisprudence and sound public policy, the First Amendment generally protects public employee whistleblowers from employer retaliation.
But our inquiry does not end there. In unraveling the case law since Pickering, we have further refined the Court's balancing test into a five-step inquiry. We ask:
Eng, 552 F.3d at 1070.
In this case, we can easily answer the first question. Dahlia's speech—reporting police abuse and the attempts to suppress its disclosure—is quintessentially a matter of public concern. See Connick, 461 U.S. at 148, 103 S.Ct. 1684 (noting that speech warrants protection when it "seek[s] to bring to light actual or potential wrongdoing or breach of public trust"); Thomas v. City of Beaverton, 379 F.3d 802, 809 (9th Cir.2004) (finding that "[u]nlawful conduct by a government employee or illegal activity within a government agency is a matter of public concern"); see also Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir.2011) (noting that "`[e]xposure of official misconduct, especially within the police department, is generally of great consequence to the public'" (quoting Branton v. City of Dallas, 272 F.3d 730,
The district court, however, ruled that Dahlia's § 1983 First Amendment claim was barred because it found that (1) as a matter of law, Dahlia could not establish that he spoke "in the capacity of a private citizen and not a public employee," Eng, 552 F.3d at 1071; and (2) being placed on administrative leave does not constitute an adverse employment action for the purposes of the First Amendment. We disagree with both conclusions and analyze them in turn.
In Garcetti, the Supreme Court narrowed the First Amendment protections for public employees. 547 U.S. 410, 126 S.Ct. 1951. The Court added an additional requirement to the Pickering balancing test, holding that the First Amendment does not protect employee speech when that speech is "pursuant to ... official duties." Id. at 421, 126 S.Ct. 1951. This requirement is captured by the second prong of our test set forth in Eng, 552 F.3d at 1070. Whether Dahlia's speech is protected by the First Amendment is rooted in the Court's analysis in Garcetti.
In Garcetti, plaintiff Ceballos was a deputy district attorney for Los Angeles County assigned as a calendar deputy during the relevant period. 547 U.S. at 413, 126 S.Ct. 1951. A defense attorney contacted Ceballos and asked him to investigate inaccuracies in a critical police affidavit. Id. "According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases." Id. at 414, 126 S.Ct. 1951. After investigating the alleged inaccuracies, "Ceballos determined the affidavit contained serious misrepresentations," which he reported to his supervisor. Id. He "followed up by preparing a disposition memorandum" and an additional memo to his supervisor. Id. After a heated meeting attended by Ceballos, his supervisor and the affiant, the supervisor decided to proceed with the prosecution. Id. Ceballos brought a § 1983 First Amendment retaliation claim challenging the imposition of adverse employment actions in the aftermath of these events. Id. at 415, 126 S.Ct. 1951.
In rejecting Ceballos' claim, the Court held that, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421, 126 S.Ct. 1951. The Court said that "[t]he controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy." Id. Importantly, the Court noted that "the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant
The Court further explained that various easy heuristics are insufficient for determining whether an employee spoke pursuant to his professional duties. The Court said that it was "not dispositive" that "Ceballos expressed his views inside his office, rather than publicly.... Employees in some cases may receive First Amendment protection for expressions made at work." Id. at 420, 126 S.Ct. 1951. It was also "nondispositive" that "[t]he memo concerned the subject matter of Ceballos' employment.... The First Amendment protects some expressions related to the speaker's job." Id. at 421, 126 S.Ct. 1951. Additionally, the Court rejected "the suggestion that employers can restrict employees" rights by creating excessively broad job descriptions. Id. at 424, 126 S.Ct. 1951. The Court concluded:
Id. at 424-25, 126 S.Ct. 1951 (citation omitted).
Three years after Garcetti, a panel of this court decided Huppert v. City of
Although the Huppert majority engaged in the requisite "practical" inquiry in determining that the officers acted pursuant to their official duties as to the first two speech acts, id. at 703-06,
In relying on Christal's sweeping description of a California police officer's professional duties, the Huppert majority failed to heed Garcetti's mandate that "the proper inquiry [to determine the scope of an employee's professional duties] is a practical one." Garcetti, 547 U.S. at 424, 126 S.Ct. 1951. The Court's stated reason for requiring such an inquiry is precisely because "employers [cannot] restrict employees' rights by creating excessively broad job descriptions." Id. Relying on a broad court-created job description applicable to every member of a profession operates to do just that. Moreover, even if Christal's formulation of California police officers' duties remains generally accurate, "the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within
Given the factual similarities here, the three-judge panel in this case, although expressing disagreement with Huppert, concluded that it was bound by it. We overrule Huppert to the extent that it improperly relied on a generic job description and failed to conduct the "practical," fact-specific inquiry required by Garcetti. In so holding, we reject the defendants' argument that California police officers are unique for the purposes of First Amendment retaliation claims. See Kannisto v. City of San Francisco, 541 F.2d 841, 843 (9th Cir.1976) (noting in a § 1983 First Amendment retaliation case that "[t]he Supreme Court has made it clear that `policemen, like teachers and lawyers ... are not relegated to a watered-down version of constitutional rights.' Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967)").
We also reject Judge O'Scannlain's—and the defendants'—argument that Christal and its progeny are controlling here for the additional reason that the authority he cites is inapposite. Although Judge O'Scannlain's concurrence does not mention it, O'Scannlain Concurrence at 1086-88, Christal explicitly limited its holding to whether police officers who were being investigated for criminal activities could assert their Fifth Amendment right against self-incrimination and still remain police officers. 92 P.2d at 418-19 ("We are concerned here only with the result of the exercise of [the Fifth Amendment] privilege, by those holding the positions of police officers, in an investigation by which it was sought to determine whether such officers had been guilty of criminal activities in connection with their duties as police officers."). Even were we to ignore its limited holding, Christal explicitly stated that officers have a "duty to disclose such facts to their superiors." Id. at 419 (emphasis added). Therefore, even over-reading Christal's dicta, and then applying it in clear violation of Garcetti, would not resolve this case.
The thrust of Judge O'Scannlain's argument—like that of the defendants—is that police officers are unique under California law for the purpose of First Amendment retaliation claims. This is true, he argues, because California police officers have a freestanding professional duty to disclose the unlawful conduct of others to their superiors as well as to outside law enforcement agencies. O'Scannlain Concurrence at 1086-88. Yet neither the case law nor the statute on which he relies supports this proposition.
Rather, the California cases cited by defendants—a subset of which Judge O'Scannlain relies on—stand for the unsurprising proposition that a public employee cannot, when ordered, refuse to comply with a lawful investigation and escape discipline for so doing. As the California courts have reiterated even outside the policing context, "`[a] public employee, of course, cannot be forced to give an answer which may tend to incriminate him, but he may be required to choose between disclosing information and losing his employment.'" Hingsbergen v. State Pers. Bd., 50 Cal.Rptr.240 Cal.App.2d 914, 50 Cal.Rptr. 59, 64 (1966) (quoting Steinmetz v. Cal. State Bd. of Educ., 44 Cal.2d 816, 285 P.2d 617, 621-22 (1955) (en banc)). Hingsbergen, for example, was not a police officer, but an employee of the California Department of Motor Vehicles ("DMV"). Id. at 60. He was dismissed for "willful disobedience" because he refused to answer questions when he was ordered to cooperate in an investigation by the state attorney general's office and the local district attorney into malfeasance within the DMV. Id. at 61. Indeed, as Hingsbergen indicates, any
That an officer could be disciplined for failing to comply with an order only begs the question in Dahlia's case. Here, the only allegations in the record are that Dahlia was ordered not to comply with an investigation.
Our case law since Garcetti provides further guidance. In Posey, we analyzed a § 1983 First Amendment retaliation claim brought by a high school security guard against the school district that was dismissed on summary judgment. Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1123 (9th Cir.2008). Considering the divergent views of other circuits, we concluded that "after Garcetti the inquiry into the protected status of speech presents a mixed question of fact and law, and specifically that the question of the scope and content of a plaintiff's job responsibilities is a question of fact." Id. at 1130. Therefore we held that, "when there are genuine and material-disputes as to the scope and content of the plaintiff's job responsibilities, the court must reserve judgment on [whether the plaintiff's speech was pursuant to his official duties]... until after the fact-finding process." Id. at 1131; see also Robinson v. York, 566 F.3d 817, 823-24 (9th Cir.2009) (holding that the "scope of [the plaintiff's] job duties is a question of fact"); Eng, 552 F.3d at 1071 (noting that "the question of
In Posey, we then held that the district court erred in granting summary judgment to the school district. We reasoned that there was a genuine dispute as to whether Posey acted pursuant to his official duties when he expressed his concern about school security in a letter to district administrators. Posey, 546 F.3d at 1124. The parties disputed whether Posey's duties included writing such internal communications about school security. Id. at 1124-25 (noting that the district argued that providing "reports and information about security matters at the high school" was "an inherent part of his duties," while Posey contended that "his role in student discipline did not extend beyond discrete tasks such as ensuring that the parking lot remained orderly at the end of the school day").
In Freitag, defendant prison officials appealed a jury verdict in favor of a correctional officer rendered before Garcetti. Freitag, 468 F.3d at 532, 536. Applying Garcetti to the § 1983 First Amendment retaliation claim, we held that Freitag acted pursuant to her professional duties when she made "internal reports of inmate sexual misconduct and documentation of the prison's failure to respond." Id. at 546. In contrast, we held that she "acted as a citizen" when she complained about the same circumstances in a letter to a state senator and to the state inspector general. Id. at 545. We found it "a closer question" worthy of remand to the district court familiar with the trial, whether Freitag acted pursuant to her official duties when she sent a letter to the director of the state prison system. Id. at 546. We were "unsure whether prison guards are expected to air complaints regarding the conditions in their prisons all the way up to" the director of the state system. Id.
In more than a half-dozen cases since Freitag, we have planted additional guideposts for determining the scope of a plaintiff's
Precisely because of the fact-intensive nature of the inquiry, no single formulation of factors can encompass the full set of inquiries relevant to determining the scope of a plaintiff's job duties. However, we find that existing case law and common sense dictate a few guiding principles relevant to the case before us.
First, particularly in a highly hierarchical employment setting such as law enforcement, whether or not the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties. See Freitag, 468 F.3d at 545-46 (holding that the correctional officer's communications with a state senator and the inspector general were protected speech, but her internal reports were not); see also Karl, 678 F.3d at 1072; Clairmont, 632 F.3d at 1105-06; Alaska, 564 F.3d at 1070-71 (holding that the plaintiff's act of holding a press conference to protest sex discrimination in her office was protected speech because, inter alia, her "official duties didn't require her to ... bring the alleged sexual harassment to the public's attention"). Thus, we agree with the Fifth Circuit that, generally, "when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job," Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.2008), although "it is not dispositive that a public employee's statements are made internally," id. at 313 n. 3. "If however a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen." Id. at 313 (citing Freitag, 468 F.3d 528).
Second, the subject matter of the communication is also of course highly relevant
Third, we conclude that when a public employee speaks in direct contravention to his supervisor's orders, that speech may often fall outside of the speaker's professional duties. Indeed, the fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a "practical" matter, within the employee's job duties notwithstanding any suggestions to the contrary in the employee's formal job description. Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951 ("Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes."). We note that our sister circuits have disagreed with one another on this point. Compare Jackler, 658 F.3d at 241-42 (holding that a police officer was entitled to First Amendment protection when he filed a truthful affidavit pursuant to his job duties and later refused the police chief's pressure to substitute a false affidavit, concluding that the First Amendment protected his refusal to comply with the illegal orders), with Bowie v. Maddox, 653 F.3d 45, 48 (D.C.Cir.) (concluding that Jackler was wrongly decided because, despite the police chief's illegal order, "the illegality of a government employer's order does not necessarily mean the employee has a cause of action under the First Amendment when he contravenes that order"), denying reh'g to 642 F.3d 1122 (D.C.Cir.2011). As in Jackler, we think that it is relevant to the resolution of Dahlia's case that Dahlia disclosed misconduct to LASD in contravention of the numerous threats and admonitions from his superiors not to reveal the misconduct to anyone. Even assuming arguendo that Dahlia might normally be required to disclose misconduct pursuant to his job duties, here he defied, rather than followed, his supervisors' orders. As part of a "practical" inquiry, a trier of fact must consider what Dahlia was actually told to do. See Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951;
These principles serve as a necessary guide to analyzing the fact-intensive inquiry mandated by Garcetti.
We next apply these principles to Dahlia. Although the district court focused exclusively on Dahlia's disclosure to LASD, Dahlia alleged several independent acts that could potentially be subject to First Amendment protection. Because the district court granted a Rule 12(b)(6) motion to dismiss, our task is not to resolve any factual dispute, but merely to determine whether Dahlia's allegations support a reasonable inference that he acted outside of his professional duties in each instance.
Dahlia initially disclosed the misconduct that he had observed to defendant Lieutenant Murphy, the officer in charge of the Porto's robbery investigation, who told him to "stop his sniveling." Dahlia alleged that he met with Murphy two additional times regarding the misconduct, pleading that "the beatings have to stop." Even construing the facts and drawing all inferences in Dahlia's favor, the only reasonable conclusion is that Dahlia acted pursuant to his job duties when he—as a detective investigating the Porto's robbery and prior to receiving any threats or orders to the contrary—reported up the chain of command to the supervising lieutenant overseeing the investigation about abuse related to that same investigation.
Dahlia subsequently met with BPD's Internal Affairs officers three times. He alleged that he was harassed and threatened not to report any misconduct in anticipation of and following each meeting. Conspicuously, Dahlia does not allege that he actually disclosed any misconduct during his interviews with IA.
In meeting with the IA officers, Dahlia does not allege that he acted in contravention of his supervisors' orders. Dahlia does not allege that anyone ever instructed him not to meet with IA, but only that supervisors threatened him not to say anything when interviewed. Because Dahlia appears to have done precisely what his superiors wanted him to do—that is, meet with IA but stay mum—we cannot say that Dahlia acted in contravention of their orders.
Nonetheless, Dahlia may very well have acted outside his chain of command when he met with IA. Although Dahlia did not explicitly allege that he acted outside his professional duties when he met with IA, this is not dispositive because we must draw all reasonable inferences in his favor. It is possible that Dahlia's professional duties required him to meet with IA at IA's insistence, but it is also plausible that Dahlia's act of meeting with IA was outside his job duties for the purpose of the First Amendment. At this stage of the proceedings, where, as here, there is no allegation regarding a BPD officer's duties with respect to meeting and cooperating with IA, we must resolve the ambiguity in Dahlia's favor. Drawing this inference in Dahlia's favor, we conclude that Dahlia has adequately alleged that his meetings with IA are protected by the First Amendment.
After word had spread that the FBI might be investigating BPD, Rodriguez allegedly called Dahlia into his office and threatened to "put a case on" him and put him "in jail." Dahlia alleged that he reported this incident to the Burbank Police Officers' Association president, who in turn reported it to the city manager.
Ultimately, Dahlia disclosed the defendants' misconduct, threats, and harassment to LASD when interviewed about the Porto's robbery investigation.
The district court dismissed Dahlia's suit on the alternative ground that placement on administrative leave is not an adverse employment action. We disagree. We conclude that, under some circumstances, placement on administrative leave can constitute an adverse employment action.
"To constitute an adverse employment action, a government act of retaliation need not be severe and it need not be of a certain kind. Nor does it matter whether an act of retaliation is in the form of the removal of a benefit or the imposition of a burden." Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir.2003). In Coszalter, we said that, in First Amendment retaliation cases, "[t]he goal is to prevent, or redress, actions by a government employer that `chill the exercise of protected' First Amendment rights." Id. at 974-75 (quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 73, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)). Therefore, we held that the proper inquiry is whether the action is "reasonably likely to deter employees from engaging in protected activity." Id. at 976 (internal quotation marks omitted); see also id. (holding that "if the plaintiffs in this case can establish that the actions taken by the defendants were `reasonably likely to deter [them] from engaging in protected activity [under the First Amendment],' they will have established a valid claim under § 1983" (alterations in original)).
We have not previously decided whether placement on administrative leave constitutes an adverse employment action. See Lakeside-Scott v. Multnomah, 556 F.3d 797, 803 n. 7 (9th Cir.2009) (noting that "being placed on administrative leave might qualify as an adverse employment action" but declining to reach the issue because it had not been properly preserved
Dahlia made other allegations of conduct that may also constitute an adverse employment action. "Various kinds of employment actions may have an impermissible chilling effect. Depending on the circumstances, even minor acts of retaliation can infringe on an employee's First Amendment rights." Id. at 975. Dahlia alleged that Rodriguez threatened to "put a case" on him and to put him "in jail." These threats, if true, were made with the specific purpose of chilling Dahlia's speech, and they appear "reasonably likely to deter" employees from speaking about misconduct observed within the BPD. Indeed, if it is true that Dahlia did not disclose what he knew when interviewed by IA, the chilling effect was in fact achieved, albeit for a limited time. The same might be said of Rodriguez's alleged stunt in the park—calling Dahlia to the scene of a purported crime only to confront him with another officer and threaten him to stay silent. With further factual development, the same might also be true of the ongoing harassment and threats that Dahlia suffered from Rodriguez, Penaranda and other officers.
We note that in the Title VII context—from which the Coszalter standard is derived—courts have found that far less serious actions were sufficient to deter a reasonable employee from engaging in protected speech. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70-71, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (concluding that a change in work assignment within the same job description would have deterred a reasonable employee from making a charge of discrimination); Brooks v. City of San Mateo, 229 F.3d 917, 928-29 (9th Cir.2000) (noting that "termination, dissemination of a negative employment reference, issuance of an undeserved negative performance review and refusal to consider for promotion" constitute adverse employment actions, whereas "declining to hold a job open for an employee and badmouthing an employee outside the job reference context" do not). Threats to put someone in jail or that cause an employee to fear for his own safety easily exceed the "reasonably likely to deter" standard. Construing the allegations in the light most favorable to Dahlia, we conclude that he has sufficiently stated that he suffered adverse employment actions.
We overrule Huppert v. City of Pittsburg and hold that Dahlia has sufficiently stated a claim pursuant to 42 U.S.C. § 1983, namely that he was retaliated against for his protected speech. We remand to the district court for further proceedings consistent with this opinion.
PREGERSON, Circuit Judge, specially concurring:
Burbank Police Department Detective Angelo Dahlia witnessed his fellow police officers physically abuse suspects in custody during a high profile robbery investigation.
When Detective Dahlia reported these acts of misconduct to Lieutenant Murphy, his superior officer, Murphy told Dahlia to "stop his sniveling." When Dahlia persisted with his complaints, Murphy told him he "didn't want to hear this shit again." Before and then after Dahlia was interviewed by Internal Affairs, Lieutenant Rodriguez and Sergeant Penaranda, his superior officers, threatened and intimidated him.
After the FBI became involved, Lieutenant Murphy told Detective Dahlia that "[t]he Feds are doing an investigation and heads are going to roll. Don't say anything." Sergeant Penaranda likewise instructed Dahlia, "It's gonna be bad. You can't say anything." Lieutenant Rodriguez admonished Detective Dahlia "not to talk to the feds." He also warned Dahlia, "Fuck with me and I will put a case on you, and put you in jail."
Detective Dahlia reported Lieutenant Rodriguez's threats to the Burbank Police Officers' Association. Dahlia disclosed all of the officers' unlawful misconduct to the Los Angeles County Sheriff's Department. Shortly thereafter, Dahlia was placed on administrative leave.
Dahlia filed a complaint under 42 U.S.C. § 1983 for First Amendment retaliation. I hold to the view that all of Dahlia's speech that reported unlawful acts by his fellow officers is protected under the First Amendment from retaliation by his superior officers at the Burbank Police Department.
I agree with the majority opinion that Detective Dahlia's speech that reported police abuse is without a doubt a matter of public concern. Maj. Op. at 1067. I respectfully disagree with the majority on how Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) applies to this case. The majority opinion tells us that under Garcetti, "[e]ven construing the facts and drawing all inferences in Dahlia's favor, the only reasonable conclusion is that Dahlia acted pursuant to his job duties when he—as a detective investigating the Porto's robbery and prior to receiving any threats or orders to the contrary—reported up the chain of command to the supervising lieutenant overseeing the investigation about abuse related to
In Garcetti, the public employee, Richard Ceballos, was a deputy district attorney who was expected "to advise his supervisor about how best to proceed with a pending case." Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. To fulfill that duty, Ceballos wrote a memo that recommended that a pending criminal case be dismissed. Id. at 414, 421, 126 S.Ct. 1951. In the memo, Ceballos stated his opinion that an affidavit used to obtain a warrant contained misrepresentations. Id. at 414, 126 S.Ct. 1951. Ceballos's supervisors reviewed his memo, discussed it, disagreed with its recommendation, and went forward to prosecute the case. Id. at 414-15, 423, 126 S.Ct. 1951. The Supreme Court held that "the memo was written pursuant to Ceballos's official duties." Id. at 421-24, 126 S.Ct. 1951. Thus, Ceballos could not base a First Amendment retaliation claim on the memo. Id.
Garcetti's restriction on First Amendment protection for public employee's speech pursuant to their official duties does not apply to Dahlia for three reasons: (1) Dahlia's superior officers restricted Dahlia's speech so that they could cover up unlawful conduct; (2) Dahlia's superiors forbade Dahlia from reporting the police abuse; and (3) Dahlia's superiors sought only to silence Dahlia's speech.
First, Garcetti did not give public employers an unlimited right to restrict the speech of their public employees. "Employees in some cases may receive First Amendment protection for expressions made at work." Garcetti, 547 U.S. at 420, 126 S.Ct. 1951. Garcetti held that when public employees speak on matters of public concern, they "must face only those speech restrictions that are necessary for their [public] employers to operate efficiently and effectively." Id. at 419, 126 S.Ct. 1951. To that end, Garcetti explained that speech made pursuant to official duties is speech that public employees express when carrying out routine functions. Id. at 421-23, 126 S.Ct. 1951. The purpose of Garcetti's restriction is to ensure that courts do not supervise a government employer's day-to-day operations. Id. at 420-23, 126 S.Ct. 1951.
In contrast, Dahlia's superior officers restricted Dahlia's speech to cover up blatantly unlawful conduct. Such conduct has no connection to the government's legitimate efforts to run efficient and effective routine operations at issue in Garcetti. Thus, Dahlia's superiors' unlawful efforts are not the type of government operations that Garcetti seeks to insulate from judicial review. Id. at 421-22, 126 S.Ct. 1951; Tenn. Secondary Sch. Athletic Ass'n v. Brentwood Acad., 551 U.S. 291, 300, 127 S.Ct. 2489, 168 L.Ed.2d 166 (2007) (citing Garcetti and holding that an athletic association, like a public employer, can "impose only those conditions on ... speech [concerning matters of public concern] that are necessary to managing an efficient and effective state-sponsored high school athletic league").
Second, Garcetti instructs us that as a "practical" matter, an official duty is a task that the "employee actually is expected to
Third, Garcetti emphasized that public employers must be able to evaluate official communications to ensure that they reflect "substantive consistency and clarity," and are "accurate, demonstrate sound judgment, and promote the [public] employer's mission." Id. at 422-23, 126 S.Ct. 1951. None of this happened here. Dahlia's superior officers made no effort to evaluate Dahlia's speech for consistency, clarity, or conformity with a legitimate employer mission. Nor did Dahlia's superiors raise any concern with the veracity or accuracy of Dahlia's speech. Instead, Dahlia's superiors sought only to silence his speech.
For these reasons, Garcetti's bar on First Amendment protection for speech made pursuant to official duties does not apply to Dahlia's reports of police abuse.
The practical reality is that quite a few police officers are reluctant to report acts of police abuse committed by their fellow officers. The "`officer code of silence'" describes the understanding that "`an officer does not provide adverse information against a fellow officer.'" Cunningham v. Gates, 229 F.3d 1271, 1283 n. 19 (9th Cir. 2000) (quoting Report of the Independent Commission on the Los Angeles Police Department at 168 (1991)). The public's trust is diminished when a law enforcement officer abides by the code of silence to cover up misconduct engaged in by fellow officers.
The majority's chain of command guidelines undermine policies that require law enforcement officers to report police abuse up the chain of command. Under the majority opinion's approach, a police officer who complies with his duty and reports unlawful acts to his superiors, and as a consequence is fired for his speech, has no First Amendment protection. In contrast, a police officer who reports unlawful acts to the news media, and as a consequence is fired for his speech, is shielded by the First Amendment.
I agree with the majority opinion that Detective Dahlia stated a claim under 42 U.S.C. § 1983 for First Amendment retaliation.
O'SCANNLAIN, Circuit Judge, with whom KOZINSKI, Chief Judge, joins, concurring only in the judgment:
Seven years ago, the Supreme Court counseled us that we had "misconceive[d] the theoretical underpinnings" of First Amendment retaliation law. Garcetti v. Ceballos, 547 U.S. 410, 423, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). I respectfully dissent from the majority's analysis because our court makes the same error today by rejecting what California law tells us about the professional duties of that state's police officers. Furthermore, I fear that today's new approach will lead to "judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers." Id. Federal courts have no business managing the daily activities of police departments.
We reheard this case en banc to consider whether Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.2009), should remain good law. That case called on us to apply Garcetti's holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes" to a lawsuit brought by a California police officer. 547 U.S. at 421, 126 S.Ct. 1951. We determined that the duty of California law enforcement officers to report criminal activity meant that the officer's reports of police misconduct internally, as well as to the FBI, did not qualify as
First, Huppert correctly appreciated that the Garcetti-inquiry is no trifle. Id. at 702-03. Like Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), which asks whether a public employee's speech is on a matter of public concern, Garcetti delineates the First Amendment's very scope. Put differently, the speech at issue "must not be expression on-the-job and within the scope of the employee's duties; if it is, there is no First Amendment protection for the speech." Erwin Chemerinsky, Constitutional Law: Principles and Policies 1151 (4th ed.2011). Instead, a would-be plaintiff's remedy usually lies in "the powerful network of legislative enactments" that protect whistleblowers. Garcetti, 547 U.S. at 425, 126 S.Ct. 1951.
Second, Huppert understood that with the "pursuant-to-official-duties" test, the Garcetti Court was charting a clear course that distinguished between citizen-speech and employee-speech. See 574 F.3d at 702.
Garcetti, 547 U.S. at 422, 126 S.Ct. 1951. The consequence of the citizen/employee dichotomy is that protection in the workplace is to be the exception—not at all the rule. See, e.g., id. at 420, 126 S.Ct. 1951 ("Employees in some cases may receive First Amendment protection for expressions made at work") (emphasis added); Morales v. Jones, 494 F.3d 590, 598 (7th Cir.2007) (noting that "the purpose of Garcetti was to allow government employers greater influence over speech that owes it[s] existence to a public employee's professional responsibilities").
With its decision to discard Huppert, and with its newly-minted "guiding principles" for identifying protected speech, the majority opinion reopens doors that Garcetti
I cannot agree that "the Huppert majority failed to heed Garcetti's mandate" about a practical inquiry by taking stock of California courts' "description of a California police officer's professional duties." Maj. Op. at 1070. Here is the entirety of what the Supreme Court said on this issue:
Garcetti, 547 U.S. at 424, 126 S.Ct. 1951. This passage appears near the end of the opinion, after the Court announced its conclusion of law and after it applied that holding to the plaintiff's facts. Id. at 420-22, 126 S.Ct. 1951. It is written as a rejoinder to the principal dissent's worry that "one response to the Court's holding will be moves by government employers to expand stated job descriptions to include more official duties and so exclude even some currently protectable speech from First Amendment purview." Garcetti, 547 U.S. at 431 n. 2, 126 S.Ct. 1951 (Souter, J., dissenting).
Read in context, this practical-inquiry passage simply directs us not to engage in a stilted or excessively formulaic inquiry. On the one hand, the Court is explaining that the sort of gamesmanship Justice Souter feared is not to be tolerated. On the other hand, the Garcetti Court is explaining (as cogently expressed by the Sixth Circuit) that "[s]peech by a public employee made pursuant to ad hoc or de facto duties not appearing in any written job description is nevertheless not protected if it owes its existence to the speaker's professional responsibilities." Fox v. Traverse City Area Pub. Sch. Bd. of Educ., 605 F.3d 345, 348 (6th Cir.2010) (alteration and internal quotation marks omitted). The prototypical examples of protected speech are "writing a letter to a local newspaper, as the teacher-plaintiff did in Pickering" and "discussing politics with a co-worker." Foley v. Randolph, 598 F.3d 1, 6 (1st Cir.2010) (discussing Garcetti, 547 U.S. at 423, 126 S.Ct. 1951). In Garcetti, the plaintiff did not engage in these types of actions; instead he "spoke as a prosecutor." 547 U.S. at 421, 126 S.Ct. 1951. That speech was unprotected because "[w]hen a public employee speaks pursuant to employment responsibilities" there generally is not a "relevant analogue to speech by citizens who are not government employees." Id. at 424, 126 S.Ct. 1951.
In the case before us, we confront what it means to speak as a police officer. I would not interpret the Supreme Court's caution against formalism—the "practical-inquiry" passage from Garcetti—as an obstacle
California courts tell us that, "[u]nlike civilians," that state's police officers are "expected to prevent others from committing crimes, to assist in the investigation of crime, and to use their law enforcement authority to maintain the trust of the public in its criminal justice system." People v. Owens, 59 Cal.App.4th 798, 69 Cal.Rptr.2d 428, 430-31 (1997) (upholding a District Attorney's decision to single out an off-duty police officer for prosecution for engaging in a pyramid scheme because, in contrast to his civilian confederates, he had "failed to discharge" the "special obligations" of his office).
This principle was first articulated in the canonical case of Christal v. Police Commission of City and County of San Francisco, 33 Cal.App.2d 564, 92 P.2d 416 (1939). See also Titus v. Los Angeles Cnty. Civil Serv. Comm'n, 130 Cal.App.3d 357, 181 Cal.Rptr. 699, 703 (1982) (stating that Christal "enunciated the role of a law enforcement officer."). "Among the duties of [California] police officers" is the responsibility to disclose "all information known to them which may lead to the apprehension and punishment of those who have transgressed" their state's laws. Christal, 92 P.2d.at 419. The case further explained that "[w]hen police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors and to testify freely concerning such facts when called upon to do so before any duly constituted court or grand jury." Id. Christal went so far as to say that "[i]t is for the performance of these duties that police officers are commissioned and paid by the community." Id. (emphasis added); compare with Garcetti, 547 U.S. at 422, 126 S.Ct. 1951 (explaining that when the plaintiff "performed the tasks he was paid to perform" he had "acted as a government employee" (emphasis added)). Dahlia has not marshaled any authority undermining Huppert's conclusion that police officers still have these obligations when speaking to external law enforcement agencies, such as the county sheriff or FBI. See 574 F.3d at 707.
The majority also rejects this "court-created job description applicable to every member of [the] profession" by invoking the specter of employer gamesmanship. Maj. Op. at 1070. Given its seventy-plus year lineage, the California police officer description of duty could not possibly be a reaction to the Garcetti opinion. Cf. Garcetti, 547 U.S. at 431 n. 2, 126 S.Ct. 1951 (Souter, J., dissenting) ("I am pessimistic enough to expect that one response to the Court's holding will be moves by government employers to expand stated job descriptions...."). More importantly, however, there are legitimate reasons for California to have imposed admittedly exacting obligations on its police. Just as Caesar's wife must be above reproach, "peace officers have been held to a higher standard than other public employees," because that is essential to "maintain the public's confidence in its police force." Pasadena Police Officers Ass'n v. City of Pasadena, 51 Cal.3d 564, 273 Cal.Rptr. 584, 797 P.2d 608, 611 (1990) ("[T]he public expects peace officers to be above suspicion of violation of the very laws they are sworn to enforce" (internal quotation marks and alterations omitted)).
Recently, the Supreme Court recalled that categorical rules have the virtue of keeping "easy cases easy." Florida v. Jardines, ___ U.S. ___, 133 S.Ct. 1409, 1417, 185 L.Ed.2d 495 (2013). In that spirit, I read Garcetti as fully compatible with a stated obligation of California police officers to report crime—a subset of which is to help expose and to assist in the investigation of crime within their ranks.
When as here, a court is called on to evaluate whether a complaint states a First Amendment retaliation claim, it should evaluate its plausibility against this legal landscape. Cf. Morales, 494 F.3d at 598 ("[T]he Milwaukee Police Department requires officers to report all potential crimes. By informing A.D.A. Chisholm of the allegations against Chief Jones and Deputy Chief Ray, Morales was performing that duty as well. Accordingly, his conversation with A.D.A. Chisholm is not protected under the First Amendment after Garcetti."). In a similar vein, as mentioned above, the Seventh Circuit considered whether a complaint stated a claim for First Amendment retaliation in the context of state-law duties:
Tamayo, 526 F.3d at 1091. That administrator sought to "escape the strictures of Garcetti by including in her complaint the conclusory legal statement that she acted `as a citizen ... outside the duties of her employment.'" Id. at 1092. Appropriately invoking Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the court did not credit these legal conclusions "couched as a factual allegation." Id.
Similarly, it would be up to a California police officer to "plead[] factual content that allows the court to draw the reasonable inference that" his department imposes less stringent crime-reporting duties on its employees than California courts routinely acknowledge. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Assuming an officer's "well-pleaded facts" do suggest that Christal/Huppert are a poor fit for his circumstance, id. at 679, 129 S.Ct. 1937, then the case would proceed to summary judgment. At that stage, evidence showing that his duties are truly limited in the fashion he had alleged would need to be proffered. Discovery generally will have unearthed the relevant materials, and then the court would be free to discern which statements, if any, fell
The Court's mission in Garcetti was to articulate a "screening test a judge should apply" when a government employee tried to invoke the First Amendment. See Garcetti, 547 U.S. at 445-46, 126 S.Ct. 1951 (Breyer, J., dissenting). Concerned that, in practice, not every police department in California expects its officers to live up to the duties spelled out by its judiciary, the majority decides to screen almost nothing. By contrast, as I have explained, the approach faithful to Garcetti would have been to preserve Huppert as the default presumption, while also acknowledging the possibility that on occasion a police officer might be able to avoid its application.
With utmost respect to my colleagues in the majority, I find their "guiding principles" about implementing Garcetti similarly untenable. Maj. Op. at 1074.
First, the majority decides that if "a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen." Maj. Op. at 1074. By contrast, as California courts have made clear,
The majority's third "guiding principle"—an employee is no longer carrying out his professional duties when he does so in the face of a threat or directive by his supervisor to break the law or protocol—follows the Second Circuit's misguided approach. See Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir.2011). Once again, the majority resorts to the "practical-inquiry" passage for substantiation. Maj. Op. 1075. And once again, we "get[] Garcetti backwards." Bowie v. Maddox, 653 F.3d 45, 48 (D.C.Cir.2011).
There are two key problems with the Second Circuit's approach that our court adopts today. First, it conflates the "adverse-action" element of a retaliation claim and the "pursuant-to-official-duties" test. Subtly, the Jackler rule allows concern for what happened to a particular plaintiff to color the threshold question about job duties. See Bowie, 653 F.3d at 48 ("[I]t is not difficult to sympathize with the Second Circuit's dubious interpretation of Garcetti. The police chief's instruction to Jackler and the actions he ordered Jackler to take were clearly illegal. But the illegality of a government employer's order does not
Second, Jackler's holding subverts Garcetti by not applying the Court's categorical rule that the protected-status inquiry hinges on job duties, and job duties alone. Jackler involved a police officer who witnessed his sergeant lose his temper and unjustifiably strike an arrestee. 658 F.3d at 230-31. After the officer reported what had happened in a supplemental report, the sergeant pressured him to substitute his honest report for one "which contained false, incomplete and misleading information." Id. at 231. He refused, and was fired. Id. at 232.
In dismissing his claim under Garcetti, the district court determined that it was "clear on the facts as alleged by Jackler that he refused to withdraw or alter his truthful report in the belief that the proper execution of his duties as a police officer required no less." Id. at 233. The Second Circuit did not disagree that as a "police officer [he certainly] ha[d] a duty not to substitute a falsehood for the truth." Id. at 241. But then, instead of applying "Garcetti's employee-versus-citizen rule," the Second Circuit "created a significant exception to it." Caroline A. Flynn, Note, Policeman, Citizen, or Both? A Civilian Analogue Exception to Garcetti v. Ceballos, 111 Mich. L.Rev. 759, 775 (2013).
Today's en banc court simply borrows Jackler without discussing its rationale; but as the D.C. Circuit has explained, that case is indefensible. The Second Circuit reasoned that Officer "Jackler's refusal to comply with orders to retract his truthful Report and file one that was false has a civilian analogue and that Jackler [thus] was not simply doing his job in refusing to obey those orders from the department's top administrative officers and the chief of police." Jackler, 658 F.3d at 241-42. The problem with this approach is that while Garcetti did state that its abstract ambition was to protect the kinds of speech for which there is a relevant civilian analogue, 547 U.S. at 424, 126 S.Ct. 1951, the Supreme Court unambiguously settled on a categorical rule as opposed to the potentially more calibrated (but also more subjective) proposals floated in the trio of dissenting opinions. See Bowie, 653 F.3d at 48 ("As all of the dissenting justices recognized, Garcetti categorically denies recovery ... to plaintiffs who spoke pursuant to official duties." (internal quotation marks and alteration omitted)). The principal dissent puts this matter as plain as can be, explaining that "when a law enforcement officer expressly balks at a superior's order to violate constitutional rights he is sworn to protect" the majority opinion places this "speaker[] beyond the reach of First Amendment protection against retaliation." Garcetti, 547 U.S. at 433, 126 S.Ct. 1951 (Souter, J., dissenting).
I would therefore adopt neither the majority's "contrary-to-orders" maxim nor its rule about "disclosures outside the chain of command."
Remaining now is the application of the foregoing framework to Dahlia's complaint.
As for Dahlia's report to Internal Affairs ("IA"), the majority states "[i]t is possible that Dahlia's professional duties required him to meet with IA at IA's insistence, but it is also plausible that Dahlia's act of meeting with IA was outside his job duties for the purpose of the First Amendment." Maj. Op. 1077. Under the Supreme Court's Twombly and Iqbal precedents, it is plaintiff's responsibility to show that his speech qualifies for constitutional protection. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (the Rule 8(a) pleading standard "asks for more than a sheer possibility.... [w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief" (internal quotation marks omitted)). The majority incants the term "plausible" without pointing to allegations which make it so.
Dahlia's complaint alleges that IA initiated an investigation and came to interview him three times. Compl. ¶ 36. Dahlia does not say he sought out IA, nor does he claim that he was free either to stay silent when asked about the corruption he had witnessed, or to lie about it. Given the inherent implausibility of that scenario,
Dahlia's allegations about his "speech" to the County Sheriff's Department are similarly threadbare. The majority concludes that the protected status of his speech likely turns on "whether discovery reveals that Dahlia's supervisors instructed him to meet with and disclose information to the [sheriff]." Maj. Op. at 1078. Such construction of "pursuant to official duties" is woefully cramped. See, e.g., Foley, 598 F.3d at 6 ("In analyzing whether Foley spoke as a citizen rather than as the Chief of the Fire Department, we first note that it is not dispositive that Foley was not required to speak to the media."); Brammer-Hoelter, 492 F.3d at 1203 ("[S]peech may be made pursuant to an employee's official duties even if it deals with activities that the employee is not expressly required to perform."); Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir.2007) (per curiam) ("Simply because Williams wrote memoranda, which were not demanded of him, does not mean he was not acting within the course of performing his job.").
Without the majority's errant gloss, Dahlia's allegations fall short. His complaint refers to no facts that suggest, let alone plausibly suggest, that in cooperating with the sheriff's investigation of corruption in the Burbank Police Department he was not "discharging the responsibilities of [his] office, [but instead] appearing as "[John] Q. Public." " Tamayo, 526 F.3d at 1092. And as already detailed, the case law and California Government Code Section 3304 indicate that cooperating with an external law enforcement agency "is a duty he `actually [was] expected to perform.'" Foley, 598 F.3d at 7 (quoting Garcetti, at 424-25, 126 S.Ct. 1951).
In our circuit, though, Dahlia still would have one more chance to pursue his claim. Although the odds are long, Dahlia could conceivably satisfy the pleading standard as to the protected status of his speech by adding particular allegations about the nature of his crime-reporting duty at the Burbank Police Department. In my view, he would be entitled to be granted leave to amend his complaint, and it is on that narrow basis that I would reverse the judgment dismissing his complaint. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (en banc) (explaining that the court must "grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts"). I also agree with the majority to the extent that Dahlia's request for leave to amend to satisfy the adverse action requirement must be honored. Maj. Op. at 1078 nn. 22-23.
The malfeasance by officers of the Burbank Police Department which Dahlia witnessed and the threats and intimidation he endured—if true—are shocking and intolerable. Yet we must stay our collective hand, ever mindful that the "Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem." Plyler v. Doe, 457 U.S. 202, 253, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (Burger, J., dissenting) (citing Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972)). Alongside his First Amendment cause, Dahlia brought claims under provisions of California law that (1) protect public employees from retaliation for disclosing an abuse of authority or a danger to the public safety, California Government Code § 53298, and (2) that shield employees who complain to a government agency, California Labor Code § 6310. These are the kinds of remedies that the Supreme Court has explained whistleblowers should pursue in the absence of a constitutional claim. See Garcetti, 547 U.S. at 425, 126 S.Ct. 1951. However righteous our aims, when we stretch the Constitution to match our sense of justice, we exceed "[t]he judicial power" vested to us in Article III and, by rendering state law nugatory, disserve our federal union.
While I narrowly concur in the judgment, I must respectfully dissent from the court's erroneous analysis of the First Amendment in this case.
Garcetti, 547 U.S. at 421-22, 126 S.Ct. 1951 (paragraph breaks omitted).
As to the second issue, although the dissent disagreed, the majority similarly concluded that, based on the undisputed facts, the plaintiff officers investigated corruption and prepared a report for the police chief and the city manager pursuant to their professional duties. Id. at 706; id. at 720 (W. Fletcher, J., dissenting). In concluding that there was a disputed question of fact as to the scope of the plaintiffs' duties, the dissent pointed out that the police chief had instructed the plaintiffs to cease their investigation whereas the plaintiffs' direct supervisor had instructed the opposite. Id. at 720 (W. Fletcher, J., dissenting). We hold, infra, that in determining the scope of a plaintiff's job duties, a fact-finder should consider the instructions given to a plaintiff by his superiors. To the extent that Huppert can be read to preclude this consideration, we overrule it.
Huppert, 574 F.3d at 707 (quoting Christal, 92 P.2d at 419).
Cal. Gov't Code § 3304. See Riverside Cnty. Sheriff's Dep't v. Zigman, 169 Cal.App.4th 763, 87 Cal.Rptr.3d 358 (2008) (holding that a police officer could not invoke the marital privilege in an administrative investigation into her police officer husband's theft and use of methamphetamine and avoid discipline pursuant to departmental policy); Alhambra Police Officers Ass'n v. City of Alhambra Police Dep't, 113 Cal.App.4th 1413, 7 Cal.Rptr.3d 432, 438 (2003) (holding that California's Public Safety Officers Procedural Bill of Rights Act did not permit a police union representative to "locate and remove documentary evidence pertaining to the misconduct investigation of another officer and then to return the evidence to the officer accused of misconduct—in admitted contravention of department rules and procedures"); Titus v. L.A. Cnty. Civil Serv. Comm'n., 130 Cal.App.3d 357, 181 Cal.Rptr. 699 (1982) (holding that a police officer who also acted as an attorney could not invoke the attorney-client privilege and impede an investigation by his police department into his client's illegal activity and simultaneously avoid being sanctioned for doing so).
Moreover, even several of the circuits that classify the inquiry into the scope of professional duties as a "question of law" nevertheless undertake a tailored, fact-specific assessment of a plaintiff's professional circumstances. See, e.g., Charles v. Grief, 522 F.3d 508, 512-14 (5th Cir.2008) (analyzing plaintiff's particular professional role and duties, even though the ultimate question of whether speech is entitled to protection is considered a legal question); Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1204-05 (10th Cir.2007) (analyzing the contents of teachers' contracts and parsing aspects of their speech to classify comments on, e.g., their school's "expectations regarding student behavior" as unprotected speech and comments on, e.g., "staffing levels" at the school as protected speech); Wilburn v. Robinson, 480 F.3d 1140, 1150-51 (D.C.Cir.2007) (conducting factual inquiry into nature of plaintiff's particular professional responsibilities).
Since Posey, the Fourth Circuit reversed the dismissal under Rule 12(b)(6) of a police officer's § 1983 First Amendment retaliation claim because "the question whether the [plaintiff's internal memorandum that he released to the press] ... was written as part of his official duties was a disputed issue of material fact." Andrew v. Clark, 561 F.3d 261, 267 (4th Cir.2009).
