The U.S. 9th Circuit Court of Appeals on Wednesday ruled a former Burbank police detective can sue the city for allegedly placing him on administrative leave for disclosing abuse against suspects by fellow officers.
The court’s 11-judge panel also ruled that Angelo Dahlia was protected by the First Amendment when he reported alleged misconduct by officers in the aftermath of a 2007 robbery at Porto’s Bakery in Burbank. Days after disclosing the abuse to Los Angeles County Sheriff's Department investigators, Dahlia was placed on administrative leave.
Attorney Scott Michelman of the nonprofit group Public Citizen, which worked on Dahlia’s case, said the decision is “a vindication of the First Amendment and the role of whistleblowers in serving as a check on official misconduct.”
Michelman added that Dahlia was “very pleased” with the decision. Dahlia’s case will now return to the district court, where he can potentially have a trial, he said.
But the City Council must still decide whether it wants to appeal the decision to the U.S. Supreme Court, said Burbank City Atty. Amy Albano. The decision was “disappointing,” she added.
“This is only the very beginning in the sense of this case,” she said.
A federal three-judge panel dismissed Dahlia’s case against the city and fellow officers in August 2012, ruling that he was not protected by the First Amendment because reporting police misconduct was his duty as an officer. The decision was based on the 2009 ruling, which the 11-judge panel overruled.
Judge Richard Paez wrote the appeals panel concluded “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,” he wrote.
Judge Diarmuid O’Scannlain and Chief Judge Alex Kozinski concluded that Dahlia’s “allegations fall short” for a First Amendment retaliation claim, but agreed to allow Dahlia to amend his whistleblower lawsuit.
Still, O’Scannlain wrote, “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.”
Dahlia reportedly witnessed fellow officers beat, choke and threaten a suspect with a gun in connection with the robbery.
He claims he was harassed, intimidated and threatened by some colleagues after reporting wrongdoing.
Dahlia and another detective repeatedly met with a lieutenant and told him “the beatings have to stop” and “the madness has to stop,” according to the decision.