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Aug. 21, 2013

Federal Appeals Court Reinstates First Amendment Claim of Whistleblower Police Officer

Burbank, Calif., Officer Was Placed on Administrative Leave After Disclosing Officer Abuse of Suspects

SAN FRANCISCO – Reversing its prior decision, the U.S. Court of Appeals for the Ninth Circuit ruled today that Burbank, Calif., police officer Angelo Dahlia was engaging in speech protected by the First Amendment when he disclosed the abuse of suspects by his fellow officers. Therefore, the court held, Dahlia may sue the city of Burbank for retaliating against him for the disclosures.

“We are pleased that the court has reinstated this important case to allow Mr. Dahlia to vindicate his free speech rights and the rights of police officers throughout California,” said attorney Michael A. Morguess of Lackie, Dammeier, McGill & Ethir of Upland, Calif., who argued the case.

Today’s ruling, issued by a panel of 11 judges, overruled the previous decision of a smaller panel of judges last August, which had held that the case could not proceed because Dahlia’s speech was not protected by the First Amendment. Today’s decision also overruled another prior Ninth Circuit opinion that had sharply restricted California police officers’ ability to assert employment retaliation claims based on the First Amendment.

“This ruling is a significant victory not only for California police officers but also for the First Amendment and the public at large, who need to know when public officials are engaging in misconduct,” said Scott Michelman, an attorney with Public Citizen who wrote the successful petition seeking rehearing of the court’s original decision. “Courageous police officers like Angelo Dahlia are in many circumstances the public’s best or even only available source of information about police corruption and abuse.”

According to the Dahlia’s complaint, beginning in 2007, he witnessed fellow Burbank Police Department officers beating, threatening and choking suspects. After Dahlia complained within his department, officers threatened Dahlia himself. Dahlia ultimately disclosed to another law enforcement agency and to his union the abuses he witnessed. In response, Dahlia was placed on administrative leave and lost pay and a promotional opportunity.

Dahlia sued, claiming that his First Amendment rights had been violated, but the trial court dismissed the case. The Ninth Circuit, in initially upholding that decision, ruled that Dahlia was not protected by the First Amendment because reporting misconduct is part of his job as a police officer.

In the petition asking for the case to be reheard, Public Citizen and Lackie, Dammeier, McGill & Ethir argued that the scope of a police officer’s job duties and what speech is protected should be determined on a case-by-case basis. Additionally, Dahlia’s attorneys argued, if the panel’s decision was allowed to stand, police officers would be deterred from speaking out about misconduct by fellow officers and the public would lose an important source of information about the activities of government.

In today’s decision, the court agreed with both propositions, applying the “practical, fact-specific inquiry” to find that Dahlia’s speech was protected by the First Amendment and explaining that “often ... unless public employees are willing to blow the whistle, government corruption and abuse would persist undetected and undeterred.”

As a result of today’s decision, Dahlia’s case will return to the trial court.

To read the decision, please visit http://www.citizen.org/documents/Dahlia-v-Rodriguez-En-Banc-Opinion.pdf.

More information on the case, Dahlia v. Rodriguez, is available at http://www.citizen.org/litigation/forms/cases/getlinkforcase.cfm?cID=773.

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Public Citizen is a national, nonprofit consumer advocacy organization that has worked to protect health, safety and democracy since 1971.

The law firm of Lackie, Dammeier, McGill & Ethir specializes in the representation of police officers and their associations throughout California.

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