Court: California Police Protected When Whistle Blowing

Police officers in California who put their careers on the line to report misconduct or corruption within their departments are to be shielded under the 1st Amendment, per a new ruling by the U.S. 9th Circuit Court of Appeals.
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The decision in Dahlia v. Rodriguez handed down Aug. 21 by an 11-judge panel overrides the precedent set by lower courts in earlier rulings on the same issue.

Our Santa Ana employment lawyers know this is a major victory, not only for this individual officer, but for all police in the state who felt powerless to act in the face of corruption. It should also be seen as a victory for the public, whose right to know about such issues was also upheld in the ruling.

Specifically at issue was whether officers who go outside their chain of command in order to report corruption should be protected and whether any retaliation or punishment they endure as a result should be grounds for a compensation in civil litigation.

Previous court rulings have said that the 1st Amendment cannot be used as grounds for a lawsuit based upon retaliation. The federal appellate court has now decided the opposite.

The case in question involves Angelo Dahlia, an officer who at one time worked at the Burbank Police Department. Dahlia reportedly witnessed other fellow officers physically abusing suspects who were detained in the course of a high-profile robbery investigation launched in 2007. In one instance, a lieutenant reportedly grabbed a suspect by the throat, put a gun to his eye and threatened to kill him.

In the course of this same investigation, a sergeant was reportedly heard yelling, hitting and slapping a suspect he was interviewing.

Dahlia took this information to his superior, a lieutenant. That individual advised him to stop “sniveling.” The lieutenant reportedly further ordered Dahlia not to go to the agency’s internal affairs division about these incidents.

Dahlia’s accounts of the beatings were backed up by the images of suspects, bloodied and bruised, taken at the time of their booking.

Eventually, Dahlia reported what he had seen to the Los Angeles Sheriff’s Department. In turn, his own agency placed him on paid administrative leave.

The resulting investigation ended with many officers disciplined and at least two were fired.

Dahlia in turn filed a lawsuit alleging that his being placed on leave was a form of retaliation. However, the lower court ruled that because he was paid, his administrative leave could not be considered a form of punishment.

The new appeals court decision says that paid leave can in fact be retributive, though it depends on the individual facts of the case.

Dahlia was ultimately fired after he reportedly gave accounts that were conflicting to LAPD versus Burbank’s internal affairs office.

In 2006, the U.S. Supreme Court ruled that public employers can’t be targeted for civil litigation alleging free speech retaliation if that communication was simply part of the worker’s job or duty. Then in 2009, the 9th Circuit appellate court ruled that police officers who report misconduct or corruption are simply doing their jobs, which means they can’t sue for retaliation under the 1st Amendment.

Now overturning its earlier ruling, the court said that it erred in failing to require a fact-specific examination of the full scope of an individual officer’s responsibilities. Just because an officer has to report misconduct as part of his duty doesn’t mean that whistle-blowing activity is never protected under the 1st Amendment. In fact, it’s more likely to be protected if it was made regarding actions within his own conduct, outside his or her chain of command and in violation of the order of a superior.

Orange County employment attorney Houman Fakhimi can be reached at (888) 529-2188.

Additional Resources:
Court ruling favors police officers who report on-the-job misconduct, Aug. 21, 2013, By Maura Dolan, Los Angeles Times
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