In Perez v. City of Roseville, published February 9, 2018, the 9th Circuit reversed in part summary judgment in favor of a former probationary police officer's supervisors in a 42 U.S.C. section 1983 suit challenging her termination. An internal affairs investigation determined that the plaintiff was involved in an extramarital affair with another officer. The investigation was initiated because of a complaint that the officers were engaging in sexual relations on duty. That portion of the allegation was not corroborated. The department terminated the officer based on a number of reasons purportedly unrelated to the affair. The officer alleged that the termination violated her constitutional rights to privacy and intimate association. She also alleged that the termination violated her due process right to a liberty interest hearing before termination. She further alleged sex discrimination.
The 9th Circuit, disagreeing with other circuits, held that the defendants violated the plaintiff's rights to intimate association and privacy if they terminated her based on disapproval of her off-duty sexual activity and the activity did not affect her job performance or violate a narrowly-tailored regulation. Further, 9th Circuit precedent had clearly established that rule, so the defendants were not entitled to qualified immunity. Issues of fact on whether the termination was impermissibly based on those factors prevented summary judgment. The defendants were, however, entitled to summary judgment to the due process claims. Any due process rights a probationary officer had under the circumstances were not clearly established at the time. Summary judgment on the sexual discrimination claim was also upheld; any discrimination was based on the plaintiff's activities, not her gender.
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