In Dahlia v. Rodriguez, published August 21, 2013, the Ninth Circuit -- sitting en banc -- overruled its 2009 decision Huppert v. City of Pittsburg, which held that a California police officer who reports suspected wrongdoing of his fellow officers to an outside agency is acting within his official duties (and therefore his speech is not protected from retaliation by the 1st Amendment, per the U.S. Supreme Court case of Garcetti v. Ceballos) as a matter of law. Instead, the court held that district courts must apply a practical analysis of a particular police officer plaintiff's official duties, and the communications he alleges resulted in retaliation, to determine whether the communications are within his official duties. The analysis is fact-intensive.
General considerations on whether an officer's report of his fellow officers' alleged wrongdoing is within his official duties is whether the communication was made within the chain of command (which will often be within official duties), whether the officer is making an official or routine report (generally within the scope of duties) as opposed to raising broad concerns of corruption or systemic abuse (generally outside the scope), and whether the officer is communicating at the command of his superiors (generally within the scope of duties) or against orders (generally outside).
The court also ruled that administrative leave may be considered an adverse employment action for purposes of a 1st Amendment retaliation claim, as can threats by superiors.
The court applied these tests to the allegations of the plaintiff officer, and determined that some of the communications alleged in his complaint were protected, and others fell within his official duties and were not protected.
A concurring judge opined that all of the officer's communications were protected. Two other judges disagreed with the majority's analysis, and would affirm dismissal of the complaint, albeit with leave to amend.
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