F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A N G E L O D A H L I A , Plaintiff-Appellant

,

v

.

O M A R R O D R

I G U E Z , individually

and as a L ieutenant of the B u rbank Police Department; E D G A R P E N A R A N D A , individually

and as a Serg eant of the B urbank Police Department; C I T Y O F B U R B A N K , a municipal corporation; J O H N M U R P H Y , individually

and as a L ieutenant of the B urbank Police Department, Defendants-Appellees

,

and

T I M S T E H R , individually

, Defendant

. N o. 10-55978

D.C. No. 2:09-cv-08453- MMM-J EM

OPI NI ON

A ppeal from the United States District Court for the Central District of California Marg a ret M. Morrow, District J udg e, Presiding

Arg ued and Submitted En B anc March 20, 2013—San F rancisco, CaliforniaD A H L I A V

. R O D R I G U E Z 2

F iled Aug ust 21, 2013

B e fore: Alex Koz inski, Chief J udg e , and Harry Preg erson, Stephen Reinhardt, Diarm uid F . O’Scannlain, Susan P. Graber, Richard A. Paez , Marsha S. B erz on, J ohnnie B

. Rawlinson, Consuelo M. Callahan, Carlos T. B e a, and Milan D. Smith, J r., Circuit J udg es.

Opinion by

J u d g e Paez ; Concurrence by

J udg e Preg erson; Concurrence by

J udg e O’Scannlain

SUMMARY *

Civil Rights

Th e e n banc court r eversed the district court’s F e d. R. Civ. P. 1 2(b)(6) dismissal and r emanded in an action broug ht by a City of B u rbank police officer u nder 42 U.S.C. § 1983,

w h o a l leg ed that he was p laced o n administrative leave i n retaliation for disclosing his fellow officers’ misconduct.

The court overruled H up pert v. City of Pittsburg

, 574 F .3d 696 ( 9th Cir. 2009 )

. T h e court held that (1) a fter Garcetti v. Ceballos

, 547 U.S. 410 (2006), courts must make

a “practical” inquiry when determining the s cope of a g overnment e mploy ee’s p rofessional duties and that Huppert erred in concluding that California broadly d e f i nes police of f i c e r s ’ d uties as a matter of law f or the purpose of F irst

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D A H L I A V

. R O D R I G U E Z 3

Amendment retaliation a naly sis; and (2) placement on administrative leave c a n constitute an adverse employ ment action. The court further held that, on r emand, plaintiff could renew his request for leave to amend his complaint to alleg e

mor e ex p licitly which acts were protected by the F irst Amendment and which acts constituted adverse employ ment actions.

Specially concurring

, J udg e Pr eg erson stated that plaintiff’s speech that reported unlawful acts by his fellow officers was protected under the F irst Amendment from retaliation by his superior o fficers at the B u r b ank Police Department r eg ardless o f whether he reported the police abuse up t h e chain of c o mmand or o utside the c hain o f command.

C oncurring only in the judg ment, J udg e O’Scannla i n , joined by Chief J udg e Koz inski, stated t h a t he ag reed that plaintiff was entitled to be g ranted leave t o amend his

c omplaint a

nd it was on that n arrow basis that h e w o u l d

reverse the d istrict court’s judg ment. J udg e O’Scannlain dissented from the majority ’s ana l y s i s , stating that with its decision to d iscard H

u p pert , and with its newly -minted “g uiding principles” for identify i n g protected speech, the majority opinion reopened doors tha t the Supreme Court slammed shut in Garcetti v. Ceba l l o s , 5 47 U.S. 410 (2006).D A H L I A V

. R O D R I G U E Z 4

COUNSEL

Michael A. Morg uess (arg ued), Michael A. Mc G i l l, a nd R u ssell M. Perry of L ackie, Dammeier & McGill, Upl an d

, California; Scott Michelman and Scott L

. Nelson, Public Citiz en L itig ation Group, W ashing ton, D.C., for Plai n t i ffAppellant Ang elo Dahlia.

Steven J

. Renick (arg

ued) and Eug ene P

. Ramirez o f Ma n n ing & Kass, Ellrod, Ramirez

, Trester, L L P, L os Ang eles, California, for Defendant-Appellee J on Murphy

.

Ken Yuwiler and Michael Simidjian of Silver, Hadden, Silver, W ex l e r & L evine, Santa Monica, California, for Defendant-Appellee Omar Rodrig uez

.

Michael L o g an Rains, Harry S. Ste r n , and L ara CullinaneSmith o f Rains, L ucia, Stern, PC, Pleasant Hill, Cal i f o rn ia, for Defendant-Appellee Edg ar Penaranda.

Richard R. T erz ian of B urke, W illiams & Sorensen, L L P, L os Ang eles, California, for Defenda n t

- A p p e l l e e C i t

y of B urbank.

Michael P. Stone and Muna B usailah of River s i d e S heriffs’ Association L e g al Defense T r u st, P asadena, California, for Amicus Curiae Riverside Sheriffs’ Association and Riverside Sheriffs’ Association L eg al Defense Trust.D A H L I A V

. R O D R I G U E Z 5

OP INION

PAEZ , Circuit J udg e:

I n this case we address the ex tent to which a police officer

r e t a ins F irst Amendment p rotection when he discloses his fellow officers’ misconduct. Ang elo Dahlia, a detective in the B urbank Police Department (“BP D”), broug ht this 42 U.S.C. § 1983 F irst Amendment retaliation suit a g ainst the City of B urbank, the Chief of Police and several other police officers. The district court g ranted the d efenda nts’ motions
to dismiss the § 1983 cause o f action for f ailure to state a

c l a i m

. F ed. R. Civ. P. 12(b)(6). The court reasoned that, under Huppert v. City of P ittsburg

, 574 F .3d 6 9 6 (9th Cir. 2009), Dahlia’s disclo s u r e to the L os Ang e les Sheriff’s Department (“L ASD”) o f his fellow officers’ misconduct was not subject to F irst Amendment protection because he had a professional duty

, as a matter of California case law, to report misconduct. The d istrict court also held t h a t D ahlia’s placement on administrative leave did not const i t u t e an “adverse employ

ment action.”

W e reverse the district court on both g rounds and o verrule Huppert

. W e h o ld that (1) a f t e r G a rcetti v. Ceballos

, 5 4 7 U .S. 410, 424 (2006), c ourts must make a “practical” inquiry when d etermining the scope of a g o v ernment employ ee ’ s p rofessional duties and that Huppert erred in concluding that C alifornia broadly defines police officers’ duties as a matter of law for the purpose of F irst A mendment retaliation a

nal y s i s ; a n d (2) placement on administrative leave

can constitute an a d v erse employ ment action. W e f

urther hold that, on r emand, Dahlia may r enew his r equest for leave
to amend his complaint to alleg e more ex plicitly which actsD A H L I A V

. R O D R I G U E Z 6

are protected by the F irst A mendment and whi c h a c ts constitute adverse employ ment actions.

I. F ACTUAL AND P ROCEDURAL BACK G ROUND

A. 1

F ollowing an armed robbery on Dec e m ber 28, 2007, at Porto’s Bakery & Café in B urbank, California, Dahlia was assig ned to assist in the robbery investig ation, w hich was

su p e r v i sed by defendant L ieutenant J on Murphy

. The day after t h e robbery

, Dahlia observed defendant L ieutenant Omar Rodrig uez g rab a suspect by t h e throat with his left hand, retrieve his handg un from its holster w i t h h is rig ht hand, and p lace the barrel of the g un under the suspect’s ey e , say ing

, “How does it feel to h a v e a g un in y our face motherfucker.” Rodrig uez noticed D a h l ia looking on in disbelief. L ater that same evening , Dahlia heard y elling and the sound of someone being hit and slap p e d f r o m inside a

room where defendant S erg eant Edg ar Penaranda was interviewing another suspect. 2

Dahlia was subsequent l y e x cluded from participating in suspect interviews, a

nd hig h-ranking officers within BPD essentially took control o f the investig ation. W itnesses a nd suspects continued to be phy sically assaulted and b eaten in

1 T h e f o llo w in g f

actu al b ack g ro u n d is d raw n f ro m th e alleg atio n s of Dah lia’ s co m

p lai n t

. B ecau se Dah lia’ s co m plain t w as d ism issed u n der Fed eral R u l e o f Civ il P ro ced u re 1 2 (b )(6 ), w e tak e h is f actu al alleg atio n s

as tru e f o r th e p u rp o s es o f o u r rev iew

. Two Rivers v. Lewis
, 1 7 4 F.3 d 9 8 7
, 9 9 1 (9 t h Cir. 1 9 9 9 ).

2 Mu rp h y , Ro d rig u ez an d P en aran d a w ere all h ig h

- ran k in g su p erv iso rs

w h o o u t ran k ed Dah l ia.D A H L I A V

. R O D R I G U E Z 7

B PD’s interview rooms, while o fficers prevented any o ne from walking p ast the r ooms or into the audio room. Dahlia
met w ith Murphy to disclose the abuse that he h ad witnessed. Dahlia told Murphy tha t t h e interviews were g etting too phy sical and that Dahlia was h aving difficulty maintaining order in the investig a tion. Murp h y responded by telling Dahlia to “stop his sniveling .”

The phy sical beating s c ontinued in B PD interview rooms and in the field, evidenced by the booking photos of various suspects. At o ne point, Ch i e f o f Police Stehr appeared a t a briefin g an d, upon learning that n ot all of the robbery

s u s p ects w ere in custody

, said, “W e ll then beat another o ne until they are all in custody .”

Af t er witnessing the misconduct and abuse, Dahlia approached Murphy a second time and pleaded that he did not have control over the case. Murphy became u pset and told Dahlia that h e “didn’t want to hear this shit ag ain” and that he

was “tired of all the B .S.” I n J anuary 2008, Dahlia a nd another d etective met with Murphy a t h i rd time, telling him that “the beating s have to stop” and “the madness ha[ s] to stop.” Murphy did nothing to respond to t h e s e c o mplaints and the abusive tactics continued.

I n A pril 2 008 officers learned that B PD’s I nternal Affairs (“I A”) unit was planning to investig ate the unlawful phy sical abuse and the other illeg al procedures relating to the Porto’s robbery investig ation. Around the same time, Rodrig uez beg an g oing out of his way to monitor Dahlia a nd ultimately threatened h im not to say a ny thing to I A. As the I A investig ation g r ew nearer, Rodri g u e z a nd Penaranda contacted Dahlia on a dai ly b a sis, threatening him to keep quiet. B efore the I A investig ation commenced, Chief StehrD A H L I A V

. R O D R I G U E Z 8

told an I A lieutenant, “I p ut y ou in this position to make it g o away .”

On April 29, 2008, Dah l i a w a s interviewed for the first time by I A. I mmediately a ft er t h e interview, Rodrig uez confronted D a hlia and demanded to k now what Dahlia h ad sai d d uring the interview. Dahlia’s complaint is silent
reg ard i n g what he a ctually said during the I A interview, thoug h he told Rodrig u ez , out of fear, that he di d n o t say any thing to I A. W hen asked b y Penaranda if h e had disclosed
any thing to I A
, Dahlia, out of fear for his safet y , a l s o told Penaranda that he had not.

On May 8
, 2 0 08, I A interviewed Dahlia a second time. After the interview, D ahlia received a call from Rodrig uez di r e c ting him to report to a park. Dahlia went to the park, believing that there was a n incident occurring

, but encountered only Rodrig uez and a nother officer there. Rodrig uez approached him ag g ressively a n d a s k e d

, “W hat the fuck did y ou tell them? ” Rodrig uez then asked, almost verbatim, the questions posed by I A a n d attempted to intimidate D ahlia into revealing his answ e r s

. Rodrig uez , Penaranda and another of f i cer incessantly harassed, intimidated and threatened Dahlia over the following weeks,
to t h e p oint where his working conditions were “fully consumed” by

the intimidation.

On May 2 1
, 2 008, I A interviewed Dahlia a third time. I mmediately a fter the interview, Rodr i gu e z appeared a nd
ag g r essively sta r e d d irectly at Dahlia. The threats a nd intimidation continued during the subsequent months.D A H L I A V

. R O D R I G U E Z 9

Toward the end of 2008, Penaranda and Murphy told Dahlia that a federal investig ation into the Porto’s robbery mig h t be forthcoming and warned D a hlia not to disclose any thing to f ederal investig ators. I n J anuary 2009, rumors c ircul a t e d

more widely t h a t the F B I had been contacted about commencing an investig a tion. At some point, Murphy told Dahlia, “I t’s on. The F eds are doing an investig at i o n a nd heads are g oing to roll. Don’t say a ny thing .” Penaranda told Dahlia, “I t’s g on n a b e b ad. You can’t say any thing

. ” Rodrig uez a lso approached D ahlia and told him “n o t t o t alk
to the feds.” The complaint a l l e g es neither that the F B I actually commenced an investig ation nor that Dahlia ever spoke to the F B I

.

On April 2, 2009, Rodrig uez c a lled Dahlia into his o ffice,
to l d Da h l i a to sit down, and closed the door and the b linds. Rodrig uez then r etrieved his g un f rom its holster, looked at Dahlia, and placed the g un in a drawer. At one point during the meeting

, Rodrig uez placed his hands on the desk and told D a h l i a, “I ’m not a fucking cheese eating rat” a nd then
comment ed that he was n ot a fraid of being suspended o r fired. Rodrig uez also leaned forwar d a n d said, “F uck with me and I will put a case on y ou, and put y ou in jail. I put all kinds of people in jail, especially any one w h o fucks with me!” Dahlia reported this incident to the Burbank Police Officers’ Association p r e s ident, who reported it to the B urbank City

Manag er.

On May 1 1, 2009, L ASD interviewed Dah l ia about the Porto’s robbery investig ation. During the interview

, Dahlia disclo s e d the defendants’ misconduct, threats, intimidation and harassment. F o ur day s lat e r , D a h lia was p laced on administrative leave pending discipline.D A H L I A V

. R O D R I G U E Z 10

Dahlia alleg es that he was subjected to a d v er se employ ment actions as a r esult of hi s p rotected speech activities and that there was no leg itimate justification f or the adverse actions. I n alleg ing a § 1983 violation, Dahlia c laims that defendan t s ’ retaliatory a cts included, inter alia

, threats, ostracism, d enial of e mp loy ment opportunities, undue scrutiny of work p erformance, denial o f conti n u e d employ ment, and malicious statem ents calculated to destroy his reputation.

B.

D ahlia filed his § 1983 complaint in November 2 0 0 9
, alleg ing seven cl a i m s : ( 1) retaliation ag ainst a public employ e e f

or speech disclosing police misconduct, in violation of the F irst A mendment; (2) retaliation a ga i n s t a public employ ee for disclosing information to a g overnment

or law enforcement ag e n c y , in violation of Ca l i f o r nia L abor Code section 1102.5; (3) retaliation ag ainst a public employ ee for making an oral or written complaint t o a g overnmental
ag ency , in violation of California L abor Code section 6310; (4) retaliation ag ainst a public em p l o y ee for disclosing an abuse of authority or a substantial a n d specific dang e r to public health or safety

, in violation of California Government Code section 53298; (5) a v iolation of the B ane Act, California Civil Code section 52.1(b), which prohibits interfe r e n c e w ith the ex ercise of constitutional rig hts; (6) intentional infliction of emotional distress; and (7) n eg lig ent infliction of emotional distr e s s

. Dahlia sued the City o f B urbank, Poli ce Chief Stehr, L ieutenants Murphy a nd Rodrig uez , Serg ea n ts Penaranda and J ose Duran, a nd Detective Chris Canales.D A H L I A V

. R O D R I G U E Z 11

Police Chief Steh r m oved for summary judg ment on several g rou n d s , including qualified immunity

. The district
court denied without prejudice, as premature, Stehr’s
summary judg ment motion because Dahlia had not y e t had an adequate opportunity to conduct discovery

. Stehr pursued an i nterlocutory appeal of the district court’s denial o f h i s motion for summar y judg ment. The orig inal three-judg e panel in this case reversed the denial of qualified immunity for Stehr in a

n u n p u b lished memorandum disposition. Dahlia v. Stehr , 491 F . App’x 799 (9th Cir. 2012).

The remaining individual defendants mo v ed, p rimarily rely ing on Huppert
, to dismiss the case for failure to s tate a claim. F ed. R. Civ. P. 1 2(b)(6). Granting these motions, the district court determined t hat D ahlia’s § 1983 c laim was barred because (1) he spoke pursuant to his o fficial duties a nd thus was not constitutionally protected, and (2) placement on paid a dministrative leave is not an adve r s e e mploy ment action. The district court according ly d i s m issed Dahlia’s § 1983 c la i m with prejudice, a nd declined to ex ercise supplemental jurisdiction over Dahlia’s state law claims.

A p anel o f this court reluctantly affirmed on the gr o u n d that it was bound by Huppert v. City of Pittsburg to conclude that Dahlia s p o ke pursuant to his official duties. Dahlia v

. Rodriguez

, 689 F .3d 1094 ( 9th Cir. 2012). I n no uncertain
t e r m s , the panel stated that “[ t] he reasoning in Huppert th at professional du t i e s can b e determined a s a matter of law is
wrong , and the result that reports of police misconduct are not protected by the F irst Amendment is dang er o u s.” Id

. at 1106–07. Contrary

to the district court, the panel f ound that placement on administrative leave and t he resulting

c o n s e q uences, “if proven,

. . . may very well constitute anD A H L I A V

. R O D R I G U E Z 12

a d v e r s e e mploy

ment action.” Id

. a t 1107. Upon a majorit y vote of elig ible judg es, we g ranted rehearing en banc.

II. JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction under 28 U.S.C. § 1291 to r eview the district cou r t ’ s final judg ment dismissing with prejudice Dahlia ’s claims ag a inst Murphy

, Penaranda, Rodrig u ez a nd the City o f B urbank. 3 W e review de novo the district court’s dismissal of D ahlia’s complaint fo r f ailure to state a claim under F ederal Rule of Civil Procedure 12(b)(6). Balistreri v

. Pacifica Police D ep’t
, 901 F .2d 696, 699 (9th Cir. 1990). I n

u n d ertaking this review, “ w e must accept a ll fact u al alleg ations o f the complaint as true and draw all reasonable inferences in favor o f the n o n m o v ing party .” TwoRivers
, 174 F .3d at 991. Dismissal under Rule 12( b)(6) is inappropriate unless Dahlia’s complaint fails to “state a claim
t o r e l i e f that is plausible on its face.” Bell Atl. Corp. v

. Twombly

, 550 U.S. 544, 570 (2007).

III. ANALYSIS

“I t is w ell settled that the state may n ot abuse its position

as e mploy er to stifle ‘ the Fi r s t Amendment rig hts [ its employ e es] w ould otherwise enjoy as citiz ens to comment on matters of p u b l ic interest.’” Eng v. Cooley

, 552 F .3d 1062, 1070 (9th Cir. 2 009) (alteration in orig inal) (qu oting Pickering v. Bd. o

f Educ.

, 3 9 1 U.S. 563, 568 (1968)). Moreover, the public has a st r o n g interest in hearing from
pu b lic employ ees, e specially because “[ g ] overnment employ e es are often in the best position to know what ails the

3 P rio r to en ban c o ral arg u m en t, D ah l ia dism issed h is ap peal ag ain st th e

o th er n am ed d ef

en d an ts, Can ales an d Du ran

.D A H L I A V

. R O D R I G U E Z 13

ag encies for which they w ork.” W aters v. Churchill

, 511 U .S. 661, 674 (19 9 4 )

. I t may often be the case that, unless public employ ees are willing to blow the w h i s tle,
g overnment corruption and abuse would persist u nde t ected and undeterred.

I n Pickering

, the Supreme Court defined a balancing test for F irst Amendment reta l i a t ion cases involving public employ e es. The task for us is to seek “a balance between the interests of the [ e mploy ee]
, as a citiz en, in commenting upon matters o f p u b l ic concern a nd the interest of the State, as an employ e r, in p romoting t h e efficiency of the public services i t performs throug h its employ ees.” Pickering

, 391 U.S. at 568; see also Connick v. Myers
, 4 6 1 U

. S

. 138, 142 (1983). The Court h as recog niz ed that “the F irst Amendment interests
at stake ex tend bey ond the individual speaker

. . . [ because of] the importance of promoting the public’s interest in r eceiving the well-informed views of g overnment employ ees eng a g ing in c ivic discussion.” Garcetti
, 547 U.S. at 419. I n the classic whistleblower case the state has no le gitimate interest in covering up corruption and p hy sical abuse. As an inevitable result of the Court’s jurisprude nce and sound public policy

, the F irst Amendment g e n erally protects p u blic employ ee whistleblowers from employ er retaliation.

B u t our inquiry does not e nd there. I n unraveling the case law sin c e Pi c kering

, w e have further refined the Court’s balancingtest into a five-step inquiry . W e ask:

(1) w hether the plaintiff spoke on a matter o f public concern; (2) whether the plaintiff spoke

as a private citiz en o r public employ ee; (3) whether the plaintiff’s protected speech w a s a substantial or motivating factor in the adverseD A H L I A V

. R O D R I G U E Z 14

employ

ment a c tion; (4) w hether the state h ad

an adequate justification for treati n g the employ ee differently from o t her members o f the g eneral publi c; a nd (5) whether the state would have taken the a dvers e employ ment action even absent the protected speech.

Eng , 552 F

. 3d at 1070. 4

I n this case, we can easily a nswer the f

irst question. Dahlia’s speech—reporting police a buse and the attempts to
suppress its disclosure—is quintessentially a matter of public

concern. See Connick

, 461 U.S. a t 148 (notin g t h a t speech
warrants protection when it “seek[ s] to bring to lig ht actual o r potential wrong doing or breach of public trust”); Thom a s v

. City of Beaverton
, 379 F .3d 8 02, 809 (9th Cir. 2004) (finding that “[ u] nlawful conduct by a g overnment employ ee or illeg al activity within a g overnment ag ency i s a m a t ter of public concern”); see also Jackler v. Byrne
, 6 58 F. 3d 225, 236 (2d Cir. 2011) (noting that “‘[ e] x p osure of of f i cial misconduct, especially w ithin the police department, is g enerally of g reat

4 W e h av e s o m etim es d escrib ed th e En g step s as “ seq u en t ial.” S ee, e.g

. , Jo h n s o n , 6 5 8 F

. 3 d at 9 6 1; Ro b in so n , 5 6 6 F.3 d at 8 2 2; En g , 5 5 2 F .3 d at 1 0 7 0

. W e n o w clarif

y th at, b y “ seq u en tial

, ” w e m ean o n ly th at all th e f acto rs are n ecessary , in th e sen se th at f ailu re to m eet an y

o n e o f th em is f atal t o t h e p l ain tif

f ’ s case. S

ee, e.g

. , Desro ch ers v. City o f S a n Bern a d in o , 5 7 2 F.3 d 7 0 3
, 7 0 9

– 1 9 (9 t h Cir. 2 0 0 9 ) (h o ld in g th at plain tif f s

co u ld n o t sh o w t

h eir sp eech co v ered a m atter o f p u b lic co n c e rn , an d th eref o re co u ld n o t state a First A m en d m en t retaliatio n claim

, w ith o u t ad d ressin g th e o th er En g

step s). T h at all f

i v e f acto rs are n ecessary d oes

n o t m ean th at co u rts m

u st alw ay s g o th ro u g h th e step s in th e sam e o rd er th at th ey are listed i n En g

. T o th e co n t rary , p rec i s e ly b ecau s e all f iv e f acto rs are in dep en den tly n ecessary , it m ay b e m o re ef f icien t i n so m e in stan ces to an s w er a p o ten tially d isp o sitiv e q u estio n f u rth er d o w

n th e En g list f irst.D A H L I A V

. R O D R I G U E Z 15

consequence to the public’” (quoting Branton v. City of Dallas

, 272 F .3d 730, 740 (5th Cir. 2001))), cert. denie d

, 132 S. Ct. 1634 ( 2012); M arable v. Nitchman

, 511 F

. 3d 924, 932 (9th Cir. 2007) (find ing it “worth noting that an employ e e’s charg e of h ig h level corruption in a g over n m ent ag ency has all of the hallmarks that we normally associate with constitutionally protected speech

. . . a n d c r i t i cisms o f the g o v e r n m ent lie at or near the core of what the F irst Amendment aims to protect”). 5

Th e d istrict court, however, ruled that Dahlia’s § 1983 F irst Amendment claim was barred because it found that (1)

as a matter of la w , Dahlia could not establish that he spoke “in the capacity of a private citiz en and not a public employ e e,” E

ng , 552 F .3d at 1 071; a n d ( 2 ) being placed on administrative leave does not const i t u te an adverse employ ment a ction for the p urposes o f the F irst Amendment. W e disag ree with both conclusions and a naly z e them in turn.

A. Speech as a P r ivate Citizen

1.

I n G arcetti
, the Supreme Court narrowed t h e F irst Amendment protections for public employ ees. 547 U.S. 410. The Court added an a dditional re q u i r e m ent to the Pickering

5 In ad d ressin g th e “ p u

b l ic co n cern ” p ro n g o f En g , w e clarif ied th at “ [i]t is n o t d et e r m i n ativ e th at [a p lain tif f ] d id n o t air h is co n cern s p u b licly .” An th o in e v. N. C

en t. Cn tys. Co n so rtiu m , 6 0 5 F.3 d 7 4 0
, 7 4 9 (9 th Cir. 2 0 1 0 ); s ee a l

s o G i v h a n v. W

. Lin e C o n so l. S ch

. Dist.
, 4 3 9 U.S. 4 1 0
, 4 1 5

– 1 6 (1 9 7 9) (n o tin g th at “ [n ]eith er th e [First] A m en d m en t itself n or ou r d ecisio n s in d i cate th at th is f reed o m is lo st to th e p u

b lic em p lo y ee w h o

arran g es to co m

m u n icate priv ately w ith h is em p lo y er rath er th an to sp read h is v iew s b ef

o re th e p u b lic”).D A H L I A V

. R O D R I G U E Z 16

balancing test, hold i n g that the F irst Amendment d oes not protect e mploy ee speech when that speech is “pursuant to

. . . official duties.” Id . at 421. This requirement is captured b y t h e s e c o nd prong of o u r test set forth in Eng
, 552 F

. 3 d at 1 070. W hether Dahlia’s speech is protected by the F i r s t Amendment is rooted in the Court’s analy sis in Garcetti

.

I n Garce tti
, plaintiff Ceballos was a deputy district attorney f

or L os Ang e les County a ssig ned as a calendar d e p uty during the relevant period. 547 U.S. a t 413. A defense a ttorney contacted Ceballos and asked him to investig ate inaccuracies in a critical pol i ce affidavit. Id

. “Acco r d i n g to Ceballos, it w as not unusual for defense attorney s to a sk calendar deputies to investig ate aspects o f pending cases.” Id

. a t 414. After investig a ting the alleg ed inaccuracies, “Ceballos determined the aff i davit contained serious misrepresentations,” which h e reported to his supervisor. I

d

. He “followed up b y p reparing a d is p o s ition memorandum” and an additional memo to his supervisor. Id

. After a heated meeting attended by Ceba l l o s , his supervisor and the affiant, the supervisor d eci d e d to proceed with the prosecution. Id

. Ceballos b roug ht a § 1 983 F irst A mendment retalia t i o n claim challeng ing the imposition o f adverse employ ment actions in the aftermath of these events. I d

. at 415.

I n reje c ting Ceballos’ c laim, the Court held that, “when public employ ee s m a k e statements p ursuant to their official duties, the employ ees are not speaking as citiz ens for F i r st Amendment purposes, a

n d the Constitution does not insulate their communications from employ er discipline.” Id

. at 421. The Court said that “[ t] he controlling factor in Ceballos’ case is that his ex pressions were made p ursuant to his duties as a calendar deputy .” Id

. I mportantly

, the Court noted that “theD A H L I A V

. R O D R I G U E Z 17

parties in this case do not dispute t h a t C e b a llos wrote his disposition m e m o p ursuant to his employ ment duties. W e thus have no occasi o n to articulate a comprehensive framework for defining the scope o f an e mploy ee’s duties in cases where there is room for serious debate.” Id

. at 424. 6

The C ourt further e x plained that various easy h euristics

are insufficient for determining whether an employ e e spoke pursuant to his professional duties. The Court said that it was “not dispo s i t i v e” that “Ceballos ex p ressed his views inside his o f f ice, rather than publicly

. . . . Employ ees in some cases

m ay r eceive F irst Amendment protection for ex pressio n s

6 Al t h o u g h it w as n o t essen tial to f in d in g th at Ceb allo s acted p u rsu an t to h is p ro f

essio n al d u ties in p rep arin g th e m em o ran d u m to h is su perv iso r, th e Co u rt o f

f ered f u rth er ex p l an atio n :

[T ]h e f act th at Ceb allo s sp o k e as a pro s ecu to r f u lf illin g

a resp o n sib ility to ad v ise h is su p erv i so r ab o u t h o w best
t o p r oceed w ith a p en d in g case [] d istin g u ish e s Ceb allo s’ case f

ro m t h o se i n w

h ich th e First A m en d m en t p ro v id es p ro tectio n ag ain st d iscip lin e.

. . . Ceb allo s w

ro te h i s d isp ositio n m em o b ecau se th at is
p art o f w h at h e, as a calen d ar dep u t y , w as em p l o y ed to d o . . . . Ceb allo s d id n o t act as a citizen w h en h e w en t ab ou t co n d u ctin g h is d aily p ro f essio n al activ ities, su ch

as su p er v isin g atto rn ey s, in v estig atin g ch arg es, an d
p rep arin g f

ilin g s. In th e s am e w ay

h e d id n o t sp eak

as

a citize n b y w

ritin g a m em o th at ad dressed th e p ro per d isp o sitio n

o f a p en d in g crim in al case. W h en h e w en t to w o rk an d p erf

o rm ed t h e t a s k s h e w as p aid to p erf o r m , Ceb allo s acted as a g o v ern m en t em p lo y ee. T h e f act th at h is d u ties so m etim es req u ired h im to

s p e a k o r w

rite d o es n o t m ean h is su p erv iso rs w ere p ro h ib ited f

ro m ev alu atin g h is p erf

o rm an ce.

Ga rcetti , 5 4 7 U.S. at 4 21

– 22 (p arag rap h b reak s o m itted ).D A H L I A V

. R O D R I G U E Z 18

made at work.” Id

. at 4 20. I t was also “nondispositive” that “[ t] he m e mo concerned the subject matter o f Ceballos’ employ ment.

. . . The F irst A mendment prot e c ts some

ex p ressions related to t he speaker’s job.” Id

. at 421. Additionally

, the Court r ejected “t h e sug g estion that employ e rs can restrict e m p loy ees’ rig hts by creating

ex c e ssively broad j ob descriptions. Id

. at 424. The Court concluded:

The proper inquiry is a practical one. F ormal job d escriptions often b ear little resemblanc e to the duties a

n employ ee actually is ex pected
t o perform, and the listing of a g iven task i n

an employ ee’ s w ritten job description is

n e i t h e r n e c e s s a r y n o r s u f f i c i e n t t o demonstrate that conducting the task is within the scope of the employ ee’s professio nal duties for F irst Amendment purposes.

Id . at 424–25 (citation omitted). 7

7 J u d g e O’ Scan n lain ’ s co n cu rren ce su g g ests th at th ere sh o u l d b e a

“ brig h t lin e” b etw een citizen

- sp eech an d em p lo y ee- sp eech

. O’ Scan n lain Co n c ur r e n c e at 49

– 5 0
, id

. at 4 9 n .2 (n o tin g th at “ [t]h e d issen t ers in Ga rcetti
, as w ell as t

h e acad em ic literatu re sin ce, reco g n ize th e b rig h t- lin e

n atu re o f t

h e in qu iry ”). W e d o n o t tak e issu e w ith th e straig h t

- f o rw ard
p ro p ositio n th at Ga rcetti altered th e Pickerin g b alan cin g ap p ro ach b y

reco g n izin g th at o n ce a p lain tif f ’ s s p eech is classif

ied as h av i n g b een

m ad e pu rsu an t to an em p l o y ee’ s of

f icial d u ties, th en su ch s p eech is categ o rically d en ied Firs t A m en d m en t p ro tectio n

. S ee O’ Scan n lain Co n cu rren ce at 4 9 n .2 an d citatio n s th erein

. Ho w ev er, th is b rig h t- lin e ru le

o n ly b eg s th e q u estio n o f w h eth er a p lain tif

f actu ally sp o k e p u

rsu an t to h is

o f f icial d u ties. It is t

h at in q u i ry th at is b ef

o re u s h ere, an d Ga rcetti

ex p licitly s aid t h a t th ere i s n o b rig h t lin e ru le f o r m ak i n g th at d eterm in atio n

. A s J u d g e O ’ Scan n lain q u o tes: “ ‘ Em p lo y ees in so me ca ses

m ay receiv e First A m en d m en t p ro tectio n f o r ex p ressio n s m ad e at w ork .’ ”D A H L I A V

. R O D R I G U E Z 19

Three y ears after Ga r c e t t i
, a panel of this court decided Huppert v. City of Pittsburg

, an o t h e r § 1983 F irst Amendment retaliation case. The Huppert majority affirmed the g rant of summary judg ment to the d efendant, holding that California p olice officer s acted pursuant to their official duties when they investig ated a nd r eported on corruption within the police d epartment by (1) assisting the D i s t r i ct Attorney a s ordered, (2) d efy ing the police chief’s orders a nd continuing an investig a tion a t the behest of an immediate supervisor, (3) cooperating with t h e F B I
, and (4) testify ing before a g rand jury . 574 F .3d at 698–700, 703, 706–08.

Altho u gh the Huppert majority eng ag ed in the requisite “practical” inquiry in determining that the officers acted pursuant to their official duties as to the f irst two speech acts, i d

. at 7 03–06, 8 it relied on a 1939 California court of appe al

O ’ Scan n lain Co n cu rren ce at 5 0 (q u o tin g Ga rcetti
, 5 4 7 U.S. at 4 2 0 (em p h asis in O’ Scan n lain Co n cu rren ce)). In d eed

, i n th e o n ly po rtio n of th e o p i n i o n d ealin g w ith h ow to d ef in e t h e sco p e o f an em

p lo y ee’ s j o b d u ties, th e Ga rcetti Co u rt ex clu siv ely p o in t ed to n o n

- d isp o sitiv e f acto rs. 5 4 7 U.S. at 4 2 4 –2 5

.

8 As to t h e f irst issu e in H

u p p ert , th e m aj o rity co n sid ered th e fa c t u a l

reco rd an d d eterm in ed th at th e u n disp u ted f

acts (in clu d in g an ad m issio n b y th e p lain tif

f

, H u p p ert) en ab l ed it to co n clu d e as a m atter o f law th at Hu pp ert assisted th e District A tto rn ey p u rsu an t to h is p ro f essio n al du ties. 5 7 4 F.3 d at 7 03

– 0 6

.

A s t o th e s eco n d issu e, alth o u g h th e d issen t d isag reed

, th e m a j o r i ty sim ilarly co n clu d ed th at, b ase d o n th e u n d isp u ted f acts, th e p lain tif

f

o f f icers in v estig ated co rru p t io n an d p rep ared a rep o rt f o r th e po lice ch i ef

an d th e city m an ag er p u rsu an t to th eir p ro f essio n al d u ties. Id

. at 7 0 6 ; id

. at 7 2 0 (W

. Fletch er, J., d issen tin g )

. I n c o n clu d in g th at th ere wa s a d i s p u ted q u estio n o f f

act as to th e sco p e o f th e p lain tif f s’ d u ties, t h e d issen t p o in ted o u t th at th e po lice ch ief h ad in stru cted t h e p lain tif

f s to

cease t h eir in v estig atio n w

h ereas th e p lai n t if

f s’ d irect su

p erv iso r h adD A H L I A V

. R O D R I G U E Z 20

decision to conclude, a s a matter of law, that an officer acted pursuant to his official d

uties in cooperating with the F B I a nd testify ing before a g r and jury

, id

. at 706–10 (rely ing on Christal v. P olice Comm’n of City of San Francisco
, 92 P.2d 416 (Cal. Dist. Ct. App. 1939)). 9

in stru cted th e o p p o site. Id

. at 7 2 0 (W

. F letch er, J
., d issen tin g ). W e h o ld

, in fra

, th at in d eterm i n in g th e sco pe o f a p lain tif f ’ s j o b d u ties, a f act- f in der sh o u ld co n sid er th e in stru ctio n s g iv en to a plain tif f b y h is su

p erio rs. T o th e e x t en t th at H

u p p ert can b e read to p reclu d e th is co n sid eratio n , w e

o v erru l e it.

9 T h e f u ll passag e f

ro m Ch r ista l relied u

p o n b y t h e Hu

p p ert m aj o rity read s lik e a civ ics tex t

b o o k :

“ T h e d u t ies o f p o l ice o f

f icers are m an y an d v aried

. Su ch o f f icers ar e th e g u ard ian s o f th e p eace an d

secu rity o f th e co m

m u n it y , a n d th e ef

f icien cy o f ou r

w h o l e sy stem , d esig n ed f

or th e p u rp o se o f m ain tain in g law an d o r d e r , d ep en d s u p o n th e ex t en t to w

h ich su ch

o f f icers perf o rm th eir d u

ties an d are f

aith f u l to th e tru st rep osed in th em

. Am o n g th e d u ties o f p o lice o f

f i cers

are th o se o f p r ev en t in g th e co m m issio n o f crim e, of assistin g i n its d etect i o n , an d o f d isclo sin g all in f o rm at io n k

n o w n to th em w

h ich m ay lead to th e ap preh en sio n an d p u n ish m en t o f th o se w h o h av e t r a n sg ressed o u r law s. W h en po lice o f f icers acq u ir e k n o w l ed g e o f f

acts w h ich w ill ten d to i n crim in ate an y p erso n , it is th eir d u

ty to d isclo se su ch f

acts to th eir

su perio rs an d to testif

y f reely co n cern in g su ch f

acts

w h en called u

p o n t o d o so b ef

o re an y d u ly co n stitu

ted

co u rt o r g ran d j u ry

. It is f

o r th e p erf

o rm an ce o f th ese d u ties t h a t p o lice o f

f icers are co m

m issio n ed an d paid b y th e co m m u n ity .”

Hu p p ert , 5 7 4 F.3 d at 7 0 7 (q u otin g Ch rista l , 9 2 P .2 d at 4 1 9 ).D A H L I A V

. R O D R I G U E Z 21

I n rely ing on Chr istal ’s sweeping description of a California p o l ice officer’s professional duties, the Huppert majority f

ailed to h eed Garcett i ’ s mandate that “ the proper inquiry [ to determine the scope of a n employ ee’s professional duties] is a practical one.” G arcetti
, 5 47 U.S. at 424. The Court’s stated reason for requiring such a n inquiry is precisely because “employ e r s [cannot] restrict e mploy ees’ rig hts by creating ex cessively broad job d es criptions.” Id

. Rely ing on a b r o a d court-created job description applicable
to every member of a professi o n operates to do just that. Moreover, even if Christal ’s f ormulation of California police of f icers’ duties remains g enerally accurate, “the listing of a g iven task in a

n employ ee’s written job description is neither
necessary nor sufficient to demonstrate that conducting t he task is within the scope of the employ ee’s professional duties for F irst Amendment purposes.” Id. at 425.

Given the factual similarities here, the three-judg e panel in this c ase, althoug h ex pressing disag r eement with Huppert
, concluded that it was bound by it. W e overrule Huppert to the e x tent that it improperly relied on a g eneric job description and failed to conduct the “practical,” fact-specific inquiry required by Garcetti

. I n s o h olding

, we reject the d e f endants’ a

rg ument that California police o fficers a r e unique for the purposes of F irst Am e n d m e nt retaliation claims. See Kannisto v. City of San Francisco
, 541 F .2d 841, 843 (9th Cir. 1976) (noting i n a § 1983 F irst A mendment

re t a l i a t ion case that “[ t] h e Supreme Court h a s made it clear that ‘policem e n , like teachers and lawy ers

. . . are not releg ated to a watered-down v ersion of constitutional rig hts.’ Garrity v. New Jersey , 385 U.S. 493, 500 (1967)”).D A H L I A V

. R O D R I G U E Z 22

2.

W e also reject J u dge O’Scannlain’s—and the defendants’—arg

ument that Christal and its p rog eny a re controlling here for the additional reason that the authority he cites is inapposite. Althoug h J udg e O’Sca n n l ain’s

concurrence does not mention it, O’Scannlain Concurrence at 53–56, Christal ex plicitly limited its holding to whether police o f f i c e r s who were b eing investig ated f or criminal activities c o uld assert their F ifth Amendment rig ht ag ainst self-incrimination and still remain police officers. 92 P.2d at 418–19 (“W e are c o ncerned here only with the r esult o f the

ex e r cise of [ the F ifth Amendment] privileg e, by those holding the positions of police officers, in an investig ation by which it was soug ht to determine whether such officers had been
g uilty o f criminal activities in connection with their duties a s police officers.”). Even were we to ig nore its limited holding

, Christal ex p licitly stated that officers have a “duty to d isclose such facts to their superiors

. ” Id

. at 4 19 (emphasis a d d ed). Therefore, even o ver-reading Christal ’s dicta, a n d then apply ing it in clear violation of Garcet t i
, would n ot resolve this case.

The thrust of J udg e O’Scannlain’s arg ument—like that o f the defendants—is t h at police officers are unique under California law for the purpose of F irst A mendment retaliation claims. This is t r u e , he arg ues, because California police officers have a freestanding p rofessional duty to disclose the unlawful con d u c t o f others to their superiors as well a s to outside law enforcement ag encies. O’Scannlain Concurrence
at 53–56. Y et n either the case law nor the statute on which he relies supports this proposition.D A H L I A V

. R O D R I G U E Z 23

Rather, the California cases cited by d efendants—a subset of which J udg e O’Scannlain relies on—stand for the unsurprising proposition that a public employ ee cannot, when ordered, refuse to comp l y with a lawful investig ation a nd
escape discipline for so doing

. As the California courts have reiterated even outside the policing contex t, “‘[ a] p u blic employ e e, of course, cannot be forced t o g ive an answer which may tend to incrimina t e him, but he may be r equired
to choose between d isclosing information and lo s ing his employ ment.’” Hingsbergen v. S tate P ers. Bd.

, 50 Cal. Rptr. 59, 64 (Cal. Dist. Ct. App. 1 9 6 6 ) (quoting Steinmetz v. Cal. State Bd. of E

duc.

, 2 8 5 P .2d 617, 621–22 (Cal. 1955) (en banc)). Hing sber ge n , for ex ample, was not a police officer, but an em p l oy ee o f the California Department of Motor Vehicles (“DMV”). Id

. a t 6 0. He w as dismissed f or “willful disobedience” because he r efused to answer questions when he was ordered to cooperate in an investig ation by the st a te attorney ge n e r a l’s o ffice and the local d istrict attorney into malfeasance w ithin the DMV. Id. a t 61. I ndeed, a s Hingsbergen indicates, any public em p l o y ee may face discipline for stonewalling

, ag ainst orders to c omply

, a properly conducted investig ation into misconduct within his department. The California cases and statute cited by J udg eD A H L I A V

. R O D R I G U E Z 24

O’Scannlain stand for nothing further

. 1 0 See O’Scannlain Concurrence at 53–53, 65.

That an officer could be disciplined for failing to comply with an order only beg s the question in Dahlia’s case. Here, the only alleg ations in the record are that Dahlia was ordered not to comply with an investig ation. 1 1

10 Calif o rn ia Go v ern m en t Co d e sectio n 3 3 0 4 (a) p ro v id es in

p art:

No th in g i n th is s ectio n sh all p reclu d e a h ead o f an ag en cy f ro m o rd erin g a p u

b l i c s a f ety o f f icer to

co op erate w ith o th er ag en cies in v o lv ed in cri m i n a l in v estig atio n s

. If an o f

f icer f ails to co m

p l y w ith su ch

an o rd er, th e a ge n c y m ay o f f icially ch arg e h im o r h er

w ith in su b o rd in atio n

.

Cal. Go v ’ t Co d e § 3 3 0 4

. S ee Riversid e Cn ty. S

h eriff’s Dep ’t v. Zig ma n , 8 7 C a l

. R p t r. 3 d 3 5 8 (Cal. Ct. A

p p

. 2 0 0 8 ) (h o ld in g th at a p olice o f f icer

co u ld n o t in v ok e th e m arital p riv ileg e in an ad m in is t r a t iv e in v estig atio n i n t o h er p o lice o f

f icer h u sb an d ’ s th ef

t an d u se o f m eth am

p h etam in e an d

av o id d i scip lin e p u rsu a n t to d ep artm en tal p o licy ); Alh a mb ra Po l i ce Officers Ass’n v. City o

f Alh a mb r a Po lice Dep ’t
, 7 Cal. Rp tr. 3 d 4 3 2
, 4 3 8 (Cal. C t

. A

p p

. 2 0 0 3 ) (h o ld in g th at Calif o rn i a’ s P u

b lic Saf ety O f f icers P ro ced u ral B ill o f Rig h ts A ct d id n o t p erm it a po lice u n io n rep resen tativ e to “ lo cate an d rem o v e d o cu m en tary ev id en ce p ertain in g to t h e m isco n d u ct in v estig atio n o f an o th er o ffi c e r an d th en to retu rn th e ev i d en ce to th e

o f f icer accu sed of m isco n d u ct—in ad m itted co n trav en tio n o f dep artm en t

ru les an d p ro ced u

res”); Titu s v. L .A. Cn ty. Civil S erv. Co mm’n

. , 1 8 1 Cal. Rp tr. 6 9 9 (Cal. Ct. Ap p

. 1 98 2 ) (h o l d in g th at a p o lice o f f icer w h o also acted as an atto rn ey co u ld n o t in v o k e th e atto rn ey

- cli e n t priv ileg e an d im p ed e an i n v estig atio n b y h is p o l ice d ep art m en t in to h is clien t’ s illeg al activ ity an d sim u ltan eo u sly

av o id b ein g san ctio n ed f or d o in g so ).

11 T h e o t h e r C a l i fo rn ia cases cited b y J u d g e O’ Scan n lain an d th e d ef en d an t s, as in Ch rista l

, in v ariab ly in v o l v e a p o l i c e o ff icer try in g to

a v o id in crim in atin g h i mself

. T h at a p o lice o f

f icer can n o t h id e f

ro m t h e law an d sim

u ltan eo u sly k eep h is b ad g e d o es n o t im p ly th at an o f

f icer h as a f reestan din g p ro f

essio n al d u ty to rep o rt th e u n law f u l activ ity o

f o th ers

.D A H L I A V

. R O D R I G U E Z 25

3.

Our case law since Garcetti provides further g uidance. I n Posey
, we analy

z e d a § 1 9 8 3 F irst A mendment retaliation claim broug ht by a hig h s c h o ol security g uard ag ainst the school district that was dismiss e d on summary judg ment. Posey v. Lake P end Oreille Sch. Dist. No. 84
, 546 F .3d 1121, 1123 (9th Cir. 2008). Cons i dering the diverg ent views o f
ot her circuits, we c oncluded that “ a fter Garcetti the inquiry into the protected status of speech presents a mix ed question of fact and law, and specifically that the q uestion of the scope and content of a p laintiff’s job responsibilities is a question o f fact.” Id

. at 1130. Therefore we h el d that, “when there a re g enuine and material disputes as to the scope and content of the pla intiff’s job responsibilities, the court must reserve judg ment on [ whether the plaintiff’s speech was p ursuant to hi s official d

uties]

. . . until after the fact-finding process.” Id

. at 1 131; see also R obinson v. Y o rk

, 566 F .3d 8 17, 823–24 (9th Cir. 2009) (holding that the “scope of [ the plaintiff’s] job duties is a question of fact”); Eng
, 552 F .3d a t 1071 (noting that “ the question of the scope and content of a plaintiff’s job responsibilities is a question of fact” (internal quotation marks omitted)); Freitag v. Ayers
, 468 F .3d 528, 5 46 (9th Cir.

S ee S zma cia r z v. Ca l. S t

a te Pers. Bd

. , 1 4 5 Cal. Rp tr. 3 9 6 (Cal. Dist. Ct. A p p. 1 9 78 ) (h o ld in g th a t a c o rrectio n al of f icer w as p ro perly d iscip lin ed

w h en h e ref

u sed to an sw er q u estio n s o r s u bm it to a p oly g rap h d u rin g an in v estig atio n in to h is u se an d tran sp o rt o f m arij u a n a i nt o a p riso n ); Fich era v. Ca l. S t a t e P e rs. Bd

. , 3 2 Cal. Rp tr. 1 5 9 (Cal. Dist. Ct. A p p

. 1 9 6 3 ) (h old in g th at a state p o l ice o ffi c er w as p ro p erly term i n ated f or

r e f u sin g to tak e a p o ly g rap h test in th e in v estig atio n o f an acc u s a t i o n ag ain st h im ); Fra zee v. Civil S erv. Bd . o f City o f Oa kla n d , 3 3 8 P .2 d 9 4 3 (Cal. Dist. Ct. A p p . 1 9 5 9 ) (sam e as to a lo cal p olice o f f i cer).D A H L I A V

. R O D R I G U E Z 26

2006) (holding that d e t e rmining the scope of professional duties requires “factual determinations”). 1 2

I n Posey
, we then held t h a t t h e d istrict court e rred in
g ranting summary judg ment to the s c h o ol district. W e reasoned that there was a g enuine dispute as to whether Posey acted pursuant to h i s o f

ficial d uties when he ex pressed his

concern a b o u t school security in a letter to district

12 A s w e reco g n ized in Po sey , o u r v i e w th at “ th e sco p e an d co n ten t of

a p lain tif f ’ s j ob resp o n sib ilities is a q u estio n o f f act” is co n sisten t w i t h h o ld in g s o f th e T h ird

, Sev en th

, an d Eig h th Ci r cu its, b u t n o t w ith th at of
t h e Fif th

, T en th

, an d D.C. Circu its. 5 4 6 F.3 d at 1 1 2 8

– 3 0

. W e co n ti nu e to ad h ere to o u r v iew an d n o te th at w h en an in q u iry “ is a m i x ed q u estio n

o f law an d f

act,

. . . it o f

ten w ill b e in ap p ro p riate to tak e th e q u estio n f ro m th e j u ry .” Ha rb o r Tu g & Ba rg e Co

. v. Pa p a i
, 5 20 U.S. 54 8
, 5 5 4 (1 9 9 7 ).

Mo reo v er, ev en sev eral o f th e circu its th at classif y th e i n q u iry in to th e

sco p e o f p ro f

essio n al d u ties as a “ q u estio n o f law ” n ev erth eless u n d ertak e

a t a ilo red

, f

act- sp ecif ic assessm en t o f a p lain tif f ’ s p ro f essio n a l circu m s tan ces. S

ee, e.g

. , C h a rles v. G rief

, 5 2 2 F.3 d 5 0 8
, 5 1 2

– 1 4 (5 th Cir. 2 0 0 8 ) ( an aly zin g p lain tif f ’ s particu lar p ro f

essio n al ro le an d du ties, ev en th o u g h th e u l tim ate q u estio n o f w h eth er sp eech is en t itled t o pro tectio n is

co n sid ered a l eg al q u estio n ); Bra m mer-Ho elter v. Twin Pea ks C h a rter Aca d

. , 4 9 2 F.3 d 11 9 2
, 1 20 4

– 0 5 (1 0 th Cir. 2 0 07 ) (an aly zin g th e co n ten ts

o f teach ers’ co n t r a c t s an d p arsin g asp ects o f th eir sp eech to classif y

co m m en ts on , e.g ., th eir sch o o l’ s “ ex p ectatio n s reg ard in g stu d en t b eh av io r” as u n

p ro tected sp eech an d co m m en ts o n , e.g ., “ staf

f in g lev els” at th e sch o o l as p ro tected sp eech ); W ilb u rn v. Ro b in so n , 4 8 0 F.3 d 1 1 4 0
, 1 1 5 0

– 5 1 (D.C. Cir. 2 0 0 7 ) (co n d uctin g f actu al in q u i ry in to n atu re of
p lain tif f ’ s p articu lar p ro f

essio n al resp on sib ilities).

Sin ce Po sey , th e Fo u rth Circu it rev ersed th e d ism issal u n d e r Ru le 1 2 (b )(6 ) of a p o lice o f

f icer’ s § 19 8 3 First A m en d m en t retaliatio n claim b ecau se “ t

h e q u estio n

w h eth er th e [p lain t if

f ’ s in tern al m em o ran d u m

th at h e released to th e p ress] . . . w as w ritten as p art o f h is o f

f icial d u ties w as

a d isp u ted i ssu e o f m aterial f act.” An d

rew v. Cla rk

, 5 6 1 F.3 d 2 6 1
, 2 6 7 (4 th Cir. 2 00 9 ).D A H L I A V

. R O D R I G U E Z 27

administrators. Posey
, 546 F. 3 d at 1124. The parties disputed whether Posey ’s duties included writing such internal c ommunications about school securi t y

. Id

. at 1124–25 ( noting that t h e d istrict arg ued that providing “reports and information ab o u t security matters at the hig h school” was “an inherent p art o f his duties,” while Posey contended that “ h is role in student d iscipline did not ex tend bey ond discrete t asks such as ensuring that the p arking lot remained orderly

at the end of the school day ”).

I n Freitag
, d efendant prison officials appeal e d a jury verdict in favor of a correctional officer ren d e r e d before Garcetti

. Freitag
, 468 F .3d at 532, 5 36. Apply ing Garcetti
to the § 1983 F irst Amendment retaliation claim, we held that F reitag acted pursuant to h er p rofessional d u t ies when she made “ internal reports of i n m a t e sex ual misconduct a nd documentation of the prison’s f ailure to respond.” Id

. at 546. I n contrast, w e held that she “acted as a cit i z en” when she complained about the same circumstances in a letter to a state senator and to the state inspector g eneral. Id

. at 545. W e found it “a closer question” w orthy of r e mand to the district
court f amiliar w ith the trial, whether F r eitag acted pursuant to her official duties when she sent a letter to the director of the
state prison sy stem. Id

. at 546. W e w e r e “unsure whether prison g uards are ex pected to air c o m plaints reg a rding the

c o nditions in their prisons all the way up to” the director of the state sy stem. Id

.

I n more t h a n a half-doz en cases since Freitag
, we have planted a dditional g uideposts for determining the scope of a plaintiff’s professional duties for the purposes of the F irst Amendment. See, e.g. , Ellins v. City of Sierra Madre

, 710 F .3d 1049 (9th Cir. 2013); Karl v. City of Mountlake Terrace , 678 F .3d 1062 (9th Cir. 2012); Clairmont v. SoundD A H L I A V

. R O D R I G U E Z 28

Mental Health

, 632 F .3d 1091 (9th Cir. 2011); Anthoine

, 605 F .3 d 740; Robinson

, 566 F .3d 817; Alaska v. EEOC
, 564 F .3d 1062 (9th Cir. 2009) (en banc); Eng
, 552 F .3d 1062; Marable , 511 F .3d 924.

4.

Precisel y b e c a

u se of the fact-intensive nature o f the inquiry

, n o s i n g le formulation of factors can encompass the full set of inquiries relevant to determining the scope of a plaintiff’s job duties. However, we find that ex isting case law and c ommon sense dictate a few g uiding princip l e s relevant to the case before us. 1 3

F irst, particularly in a hig hly hierarchical employ ment setting such as law enforcement, whether or not the employ ee confined h is communications to hi s c hain of command is a

13 Oth er circu its h av e s et f o rth illu strativ e list s o f f

acto rs to co n s id er

w h en d eterm in in g w

h eth er a g iv en in stan ce o f sp eech f alls w i t h in th e

sco p e o f a plain tif

f ’ s j o b d u t ies. See, e.g

. , Ha n d y-Cla y v. C ity o f Memp h is
, 6 9 5 F.3 d 5 3 1
, 5 4 0

– 4 1 (6 th Cir. 20 1 2 ) (id en t if y in g as f acto rs: “ th e i m

p etu s f o r h er sp eech

, th e set t i n g o f h er s p eech

, th e sp eech ’ s au d i en ce, an d its
g en eral su b j ect m atter”; “ w

h eth er th e statem en ts w ere m ad e to in d iv id u als

u p th e ch ain of co m

m an d ”; “ w

h eth er th e co n ten t o f th e sp eech is n o th in g

m o re th an th e q u in tessen tial em p lo y ee b eef

: m an ag em en t h as acted in co m p eten tly ”; “ w

h eth er th e sp eech w as m ad e in sid e o r o u t s i d e of th e

w o rk p lace an d w

h eth er i t c o n c e rn ed th e su b j ect- m atter o f th e sp eak er’ s

e m plo y m en t” (in tern al qu o tatio n m ark s om itted )); Deco tiis v. W h ittemo re , 6 3 5 F .3 d 2 2
, 3 2 (1 st Cir. 20 1 1) (listin g as “ in stru ctiv e” b u t n o t d isp o sitiv e f acto rs: “ w h eth er th e sp eech w as m ad e u p th e ch ain o f co m

m an d; w h eth er th e em p lo y ee sp o k e at h er p lace o f em p lo y m en t; w h eth er th e sp eech g av e

o b j ectiv e o b serv ers th e im p ressio n th at th e em

p lo y ee rep resen ted th e

em p l o y er w h en sh e sp o k e (len d in g it ‘ o f f icial sig n if

ican ce’ ); w

h eth er th e

em p l o y ee’ s sp eech deriv ed f ro m sp ecial k

n o w led g e o b t ain ed d u rin g t h e

co u rse o f h er em

p lo y m en t ; an d w

h eth er th ere is a so

- called citizen

an alo g u e to th e sp eech ” (citatio n s o m itted )).D A H L I A V

. R O D R I G U E Z 29

relevant, if not necessarily dispositive, factor in determining whether he spoke purs u an t t o his official d uties. W hen a public employ ee commun icates with individuals or entities

o utside of his chain of command, it is unlikely that h e i s

s p e aking pursuant to his d uties. See F

reitag
, 468 F

. 3 d at 5 4 5

– 4 6 ( h o l d i n g t h a t t h e c o r r e c t i o n a l o f f i c e r ’ s communications with a state senator and the inspector g eneral

were protected speech, but her internal reports were not); see also Karl

, 678 F .3d at 1072; Clairmont

, 632 F .3d at 1105–06; Alaska , 564 F .3d at 1 070–71 (holding that the plaintiff’s act of holding a press conference to p rotest sex discrimination in her office was pro t e c t e d speech because, inter alia

, her “official duties didn’t require h e r to

. . . bring the a lleg ed

sex ual harassment to the public’s attention”). Thus, we ag r ee with the F ifth Circ u i t that, g enerally

, “when a public employ e e raises complaints o r c o ncerns up the chain o f command at his workplace about his job du t i e s , that speech is u ndertaken in the course of performing his job,” Da vis v

. McKinney
, 518 F .3d 304, 313 ( 5th Cir. 2008), althoug h “it is
not dispositive that a public employ e e’s statements are made internally ,” id

. at 313 n.3. “ I f ho w e v er a public employ ee takes his job concerns to p ersons o u t s i d e the work place in additio n t o r a i sing them up the chain of command at his workplace, then those e xt e r n a l communications are ordinarily
not made as an employ ee, but as a citiz en.” Id

. at 313 (citing Freitag , 468 F .3d 528). 1 4

14 In i ts am icu s b rief

, th e Riv ersid e Sh erif

f s’ A sso ciatio n an d Riv ersid e Sh erif f s ’ A sso ciatio n L eg al Def

en se T ru st su

p po rt th is ch ain

- of

- co m m an d d istin ctio n

. S

ee A m icu s B r. at 2 (arg u i n g th at “ a p o l ice o f f icer’ s sp eech

o n a m atter o f im

p o rtan t p u

b lic co n c e r n [] sh o u ld o n ly f all o u tsid e th e

s c o p e o f First A m en d m en t pro tectio n if it is m ad e p u rsu an t t o h is o r h e r

ro u tin e o r co re d u

ties, with in h is o r h er ch a in o f co mma n d

, an d i n p u rsu i t

o f h is o r h er du ty to rep o rt m i sco n d u ct t o a s u p erio r ” (em

p h ases ad d ed )).D A H L I A V

. R O D R I G U E Z 30

Second, the subject matter of the c o mmunication is also of course hi ghly relevant to the ultimate determination whether the speech is protected by the F irst Amendment. See Handy-Clay

, 695 F .3d at 540 (identify ing as a relevant factor the speech’s “g eneral su bject matter” (internal quotation marks o mitted)). W h en an employ ee prepares a routine report, pursuant to normal departmental procedure, a b o u t a particular incident or occurrence, the employ ee’s preparation of that report is ty

pically within h is job d

uties. S ee Garcetti
, 547 U.S. at 4 21 (holding that a deputy district a t t o rney ’s preparation of a memorandum reg ardi ng the merits of a particular case was not F irst A mendment protected speech because preparation of such memoranda was a routine p art o f what he “was empl o y e d to do”); Freitag
, 468 F .3d at 546 (holding that a correctional officer’s “ internal repor t s o f inmate sex ual misconduct” were not constitutionally protected speech). B y contrast, if a public employ e e raises within the d epartment broad concerns a b o ut corruption o r sy stemic abuse, it is unlikely that such c o m plaints can reasonably be classified as being w ithin the jo b d u ties of an

a v erag e p ublic employ ee, ex cept when the employ e e ’s
reg ular job duties involve investig ating such conduct, e.g ., when the employ ee works f or I nternal Affairs or another such watchdogunit.

Third, we conclude that when a public employ ee speaks in direct contravention to his supervisor’s orders, that speech

ma y o f t e n f all outside of the speaker’s professional duties. I ndeed, the fact that an employ ee is threatened or harassed b y his superiors for e ng a g ing in a particular ty pe o f s p e ech provides strong evidence that the act of speech was not, as a “practical” matter, within the employ ee’s job duti e s notwithstanding any sug g estions to th e contrary in the employ e e’s formal job d escription. Garcetti
, 5 47 U.S

. atD A H L I A V

. R O D R I G U E Z 31

424–25 (“F ormal job descriptions often bear little resemblance to the duties an e mploy ee actually is ex pected to perform, and the listing of a g iven task in an e mploy ee’s written job d e s c ription is n either n ecessary n or sufficient to demonstrate that conducti n g the task is within the scope o f the employ e e’s professional duties for F irst A mendment purposes.”). W e n o t e that our sister circuits have disag reed with one another on this point. Compare Jackler

, 658 F .3d at 241–42 ( holdi ng that a police officer was entitled to F irst A mendment protection when he filed a truthful affida v i t pursuant to h is job duties and later refused the police c hief’s
pressure to substitute a false affidavit, concluding that the F irst Amendment prote cted his refusal to comply w ith the illeg al orders), with Bowie v. Maddox

, 653 F .3d 45, 4 8 (D.C. Cir.) (concluding that Jackler was wrong ly decided because, despite the police chief’s illeg al order, “the illeg ality of a g overnment employ er’s order does not necessarily mean the employ e e h as a cause of action under t h e F i rst Amendment when he contravenes that order”), denying reh’g to 642 F .3d 1122 (D.C. Cir. 2011). As in Jackler

, w e t h i n k that it is

r e l e vant to the resolution of Dahlia’s case that Dah l i a disclosed misconduct to L ASD in contraventio n o f the

numerous threats and admonitions f ro m his superiors n ot to

r e v eal the misconduct to a ny one. Even assuming arguen d o that Dahlia mig ht normally be required to d isclose misco n d uct pursuant to h is job duties, here he d e fied, rather than followed, his supervisors’ orders. As part of a “practical” inquiry

, a trier of fact must consider what Dahlia

was actually told to do. See Garcetti
, 547 U.S. at 424–25; see also Robinson

, 566 F .3d at 820–21, 823–24 (finding that we lacked jurisdiction where the d i s t r i ct court f ound that there

were g enuine factual issues “reg a r ding whether the scope o f Ro b inson’s duties included reporting police misconduct” when Robinson, a police o fficer, filed multiple misconductD A H L I A V

. R O D R I G U E Z 32

reports and testified to the same effect despite his superiors’
sug g estions that he not do so). 1 5

These p rinciples serve as a necessary g uide to ana l y z i ng the fact-intensive inquiry mandated by Garcetti

.

5.

W e nex t apply these principles to Dahlia. Althoug h the district court focused ex clusive l y on Dahlia’s disclosure to L ASD, Dahlia alleg e d several independent acts that could potentially be subject to F irst Amendment pr o t ec tion. B ecause the distr i c t c ourt g ranted a Rule 12(b)(6) motion to dismiss, our t a s k is not to r esolve any factual dispute, but merely to determine whether Dahlia’s alleg a t i o ns support a reasonable inference that he a cted outside of his professional duties in each instance. 1 6 At the motion to dismiss stag e, we take Dahlia’s well-pleaded factual alleg ation s a s true. On remand, the parties will have an opportunity to conduct discovery as to Dahlia’s professional duties. Nonetheless, it is within our wheelhouse to reject, as implausible, alleg ations that are to o s p eculative to warrant further f actual development. Twombly , 550 U.S. at 570. 1 7

15 W e d eclin e to ad o p t as b in d in g law a p assin g ref eren ce m ad e b y so m e

o f th e Ga rcetti d issen ters. O’ Scan n lain Co n cu rren ce at 6 2 (q u o tin g Ga rcetti , 5 4 7 U.S. at 4 33 (So u ter, J ., d issen tin g )).

16 A s d iscu s sed su

p ra , w e f in d it ev id en t th at Dah lia’ s sp eech ad dressed

, in each in stan ce, a m atter o f p u blic co n cern

.

1 7 W ere th is case at t

h e su m m ary j u d g m en t stag e an d th e u n d i s p u t e d f acts en ab led u s to c o n clu d e w h eth er Dah lia s p o k e p u rsu an t to h is j o b d u ties, th en w e co u ld p erf o rm t h e “ screen in g ” ro le th at J u d g e O’ Scan n lainD A H L I A V

. R O D R I G U E Z 33

a.

Dahlia initially d isclosed the misconduct that he h ad observed to defendant L i e u t enant Murphy

, the officer in charg e of the Porto’s robbery investig ation, who told him to “stop his sniveling .” D ahlia alleg ed that he met with Murphy
two additional times reg arding the misconduct, pleading that “the beating s have to stop.” Even construing the facts a nd drawing all inferences in Dahlia’s favor, the only reasonable conclusion is that Dahlia acted pursuant to his j o b d u t ies when he—as a detective investig ating the Porto’s robbery a nd
p r i o r t o r eceiving a

ny threats o r o rde r s t o t h e contr a ry

— r eported up the chain o f command to the supervising lieutenant overseeing the investig ation about abuse related to that same investig ation. 1 8 T hat Murphy
appears to h ave ig nored Dahlia ’ s i nitial report does not convert into protected speech Dahlia’s later rep o r t s t o the same supervisor. S

ee Freitag
, 468 F .3d at 545–46. 1 9

ex h o rts u s to p lay

. O’ Scan n lain Co n cu rren ce at 5 9

. A t th e p lead in g stag e,

o u r ro le is m o re lim i ted

.

18 B y rep o rtin g to Mu rp h

y , a lieu ten an t, an d n o t th e serg ean t lead i n g th e in v estig atio n , Pen aran d a, Dah lia lik ely sk ip p ed o n e lev el i n th e ch ain of

c o m m an d

. T h is am

b ig u i ty is n o t su f

f icien t to cast do u

b t o n o ur

co n clu sio n h ere, w

h ere Dah lia sp ecif

ically alleg ed th at Mu rp h y “ o v ersaw th e en tire Po rto ’ s ro bb ery in v estig atio n ,” an d P en aran d a—Dah lia’ s d i rect

su p erv iso r—w as th e su

b j ect o f Dah l ia’ s rep o rt.

19 J u d g e P reg erso n a r g u e s l u cid ly w h y t h e First A m en d m en t sh ou ld
p ro tect a po lice w

h istleb lo w er w

h o def ies h is su

p e r i o r s’ attem

p t s to silen ce h im

. S e e g en era lly P reg erso n Co n cu rren ce. A s w e co n clu d e,

su p ra in III.A .4 ., w h en

a p u b lic em p lo y ee s p eak s in d irect co n t rav en tio n to h is su p erv iso r’ s o rd ers, th at sp eech m ay of ten f all o u tsid e o f t h e sp eak er’ s p ro f

essio n al d u t ies. Here, ho w ev er, Dah lia rep o rted th e

m isco n d u ct to Mu rp h y p rio r t o b ein g su b j ec t e d t o h is su

p erio rs’ th reatsD A H L I A V

. R O D R I G U E Z 34

b.

Dahlia subsequently m e t with B PD’s I nternal Affairs

o f ficers three times. He alleg ed that h e was harassed a n d threatened not to report any misconduct in anticipation of a nd following each meeting

. Conspic u o usly

, Dahlia does not alleg e that he actu a l l y d isclosed any misconduct during his interviews with I A.

I n meeting with the I A officers, D ahlia does not all e ge that he a cted in contravention of h is superviso r s ’ orders. Dahlia does not alleg e that any one ever instructed him not to
meet with I A, but only that supervisors threatened him not to
say any thing when interviewed. Be c a u s e Dahlia appears to have d one precisely w h a t his superiors wanted him to do—that is, meet with I A but stay mum—we cannot say that Dahlia acted in contravention of their orders.

Nonetheless, Dahlia may very well have acted outside his

c h a i n o f command when h e met w ith I A. Althoug h Dahlia did not ex plicitly alleg e that h e acted outside his professional duties w hen he met with I A, this is not dispositive because we must draw all reasonable inferences in his favor. I t i s possible that Dahlia’s professiona l d uties required him to meet with I A at I A’s insistence, b ut it is also plausible that Dahlia’s act of meeting with I A w as outside his job duties for the purpose of the F irst Amendment. At this s t a ge of the proceeding s, where, a s here, there is no alleg ation reg arding

a B PD officer’s duties w ith respect t o m e e t ing a nd

c ooperating w ith I A, we must resolve the ambig u i t y i n Dahlia’s favor. Drawing this inference in Dahlia’s f avor, we

an d in tim id atio n an d th eref o re co u ld n o t h av e been actin g in co n t rav en tio n

o f th em

.D A H L I A V

. R O D R I G U E Z 35

conclude that Dahlia has adequately alleg ed that h is meeting s with I A are protected by

the F irst Amendment.

c.

After word had spread that the F B I mig ht be investig ating B PD, Rodrig uez alleg edly c alled Dahlia into h is off i ce a nd threatened to “put a case on” him and put him “in jail.” Dahlia alleg e d that h e reported this incident to the B urbank Police Officers’ Association pre s i dent, who in turn r eported i t t o the city manag er. 2 0 As with his o ther acts, Dahlia doe s not specifically alleg e that h e acted outside his job duties when he reported the incident, n or that the retaliation he faced

w a s directly caused by this act of reporting

. Nonetheles s , g uided by the principles articulated above an d d r awing all reasonable inferences in Dahlia’s f avor, we conclude that Dahlia’s report to his police union c o n stituted protected speech. A t this stag e in the proceeding s, it is reasonable to infer that D a h l ia did not h ave a duty to report threats to his union, which constitutes a separate entity from B PD.

d.

Ultimately

, Dahlia d isclosed the defendants’ misconduct, threats, and harassment to L ASD when interviewed about the P o r t o’s robbery investig a tion. 2 1 I n doing so, Dahlia c lea r l y

2 0 T h is is n o t m erely an “ em p lo y ee b eef

: m an ag em en t h as a c t e d in co m p eten tly ,” Ha n d

y-Cla y , 6 9 5 F

. 3 d at 54 0 ; rath er, th e alleg ed th reat

an d attem p t t o stif le an in v estig atio n in to po lice m i sco n du ct is clearly a

m atter o f g reat p u b l ic co n cern , see Th o ma s , 3 7 9 F.3 d at 8 09

.

2 1 In h is brief

s o n ap p eal, Dah lia also ref eren ced d isclo sin g in f

o rm atio n to th e FB I, b u t th ere are n o alleg atio n s in th e co m p lain t t h at Dah lia ev er sp o k e w ith , let alo n e d isclo sed an y th in g to , f ed eral ag en ts.D A H L I A V

. R O D R I G U E Z 36

s p o k e outside the chain of c ommand and, indeed, to a n outside ag ency altog ether. W h ethe r D ahlia ultimately acted pursuant to h is job duties when he d isclosed misconduct t o L A SD may w ell turn on whether discovery r eveals that Dahlia’s supervisors instructed him to meet with and d isclose information to L ASD or in fact D a h l i a d id so o f his o wn volition. Construing the complaint in Dahlia’s fav or, his disclosure to L ASD is protected by the F irst Amendment.

B. Adverse Em ploym ent Action

The district court dismissed Dah lia’s suit o n the alternative g roun d t h a t placement on administrative leave is
not an a d v e rs e employ

ment action. W e disag ree. W e conclude that, und e r some circumstances, placement on administrative leave can constitute a n adverse employ ment action. 2 2 Moreover, we c onclude that Dahlia s ufficiently

22 T h e d istrict co u rt also f

o u n d t h at Dah lia f

ailed to alleg e th at an y of th e in d iv i d u al d ef

en d an ts, o th er th an Ch ief Steh r, cau sed h im to b e p laced on ad m i n istrativ e leav e o r t o su f f er an y o th er ad v erse em p lo y m en t

co n seq u en ce. T o th e ex ten t th at th e p articu lar th reats an d h arassm en t b y P en aran d a an d Ro d rig u ez can co n s titu te ad v erse em p lo y m en t actio n s, w e d isag ree. Dah lia h as alleg ed as clearly as p o ssib le, p oin tin g to sp ecif ic in stan ces, th at b o th d ef

en d an ts t h reaten ed an d h arassed h im in an attem p t to silen ce h im

. W i th resp ect t o Dah l ia’ s p l acem en t o n ad m in istrativ e leav e, o n rem an d Dah lia m ay seek leav e to am en d h is co m p lain t to clarif

y h is alleg atio n s. W e n ote th at “ ‘ p e r s o n al p articip atio n is n o t th e o n ly
p red icate f

o r s ectio n 1 9 8 3 liab ility

. A n y o n e w h o “ cau ses” an y citizen t o b e su b j ected to a co n stitu

tio n al d ep riv atio n is a l s o liab le.’ ” Gilb ro ok v. City o f W estmin ster , 1 7 7 F.3 d 8 3 9
, 85 4 (9 th Cir. 1 9 9 9 ) (q u o tin g Jo h nso n

v. Du ffy

, 5 8 8 F.2 d 7 4 0, 7 4 3 (9 th Cir. 1 9 7 8 )). T h e “‘r e q u i s i te cau sal

co n n ectio n c an b e estab lish ed n o t o n ly b y so m e k in d o f d irect p erso n al
p articip atio n in th e d ep riv atio n , b u t also b y settin g in m o t io n a s erie s of
acts b y o th ers w

h ich th e acto r k

n o w s or reaso n ab ly sh o u ld k n ow w o u ld

cau se o th ers t o in f

lict th e c o n stitu

tio n al i n j u ry .’ ” Id

. (q u o tin g Jo h n so n , 5 8 8 F.2 d at 7 43

– 4 4 ).D A H L I A V

. R O D R I G U E Z 37

a l leg e d additional acts that c ould also constitute advers e employ ment actions. 2 3

“To constitute an adverse employ ment action, a go v e r nment act of r etaliation n eed not b e severe and it n e e d
not be of a certain kind. Nor does it matter w hether an act o f retaliation is i n t h e fo rm of the removal of a benefit o r the imposition o f a burden.” Coszalter v. City of Salem

, 320 F .3d 968, 975 (9th Cir. 2003). I n Coszalter , we said that, in F irst Amendment retaliation cases, “[ t] he g o al is to p r e v e nt, o r redress, actions by a g overnment employ er that ‘chill the

ex e r cis e of protected’ F irst Amendment rig hts.” Id. at 974–75 ( quoting Rutan v. Republican Party of Ill.

, 497 U.S. 62, 73 (1990)). Therefore, we held that the proper inquiry is

w h ether the action is “reasonably likely to d eter empl o y e e s from eng ag ing in protected activity .” Id

. at 976 (internal quotation marks omitted); see also id

. (holding that “if t he plaintiffs in this cas e c an e s tablish that the actions taken b y the defendants were ‘reasonably likely to d e ter [ them] from
eng ag ing in protected activity [under the F irst Amendment] ,’ they wi l l h a ve established a v alid claim under § 1983” (alterations in orig inal)).

W e have not previously decided whethe r p lacement on administrative leave constitutes an a dverse employ ment action. See Lakeside–Scott v. Multnomah Coun t y , 5 56 F .3d 797, 803 n.7 (9th Cir. 2009) ( noting that “being placed on

23 In h is o p p o s itio n to d ef en d an ts’ m o tio n s to d ism iss, Dah l i a req u ested leav e to am en d h is co m p lain t. In l ig h t o f its ru li n g t h a t H u p pert

co n tro lled

, th e d istrict co u rt n ev er ad d r essed Dah lia’ s req u ests f o r leav e to am en d

, ap p aren tly b ecau se an y am en dm en t w ou ld h av e b een f u t ile. On

rem an d

, in th e ev en t th at D a h l i a r e n ew s h is req u est to am en d h is

co m plain t, th e d istrict co u rt s h o u ld g ran t h im leav e to clarif y h is alleg atio n s.D A H L I A V

. R O D R I G U E Z 38

administrative leave mig ht qualify as an adverse employ ment action” but declining to reach the i s s ue because it had not b e e n p r o p e r l y p r e s e r v e d f o r a p p e a l )

. D a h l i a ’ s assertions—that admini strative leave prevented him from taking the serg e ant’s ex am, required him to forfeit on-call a nd holiday p ay , and prevented him from furthe r i ng his investig ative ex perience—if proved, w o uld constitute an adverse e mploy

ment action. T h e i n a b ility to take a promotional ex am, loss of pay and opportunitie s f o r investig ative ex perience, as well as the g eneral sti g ma resulting from placement on administrative leave appear “reasonably likely to deter employ ees from eng ag ing i n protected activity .” Coszalter

, 320 F .3d at 976.

Dahlia made other a l l e g ations of conduct that may also constitute an a dverse employ ment action. “Various kinds o f employ ment actions may have an imper m i ssible chilling effect. Depending on the circumstances, even minor acts o f retaliation can infring e on an employ e e ’ s F irst A mendment rig hts.” I d

. at 975. Dahlia alleg e d that Rodrig uez threatened
to “ p ut a case” on him and to put him “in jail.” These threats, if true, were made with the specific purpose of ch i lling Dahlia’s speech, and they a ppear “reasonably likely to deter” employ e es from speaking about misconduct observed within the B PD. I ndeed, if it is true that Dahlia did not d isclose what he knew when interviewed by I A, the chilling effect was in fact achieved, albeit for a limited time. The same mig ht be said of Rodrig u ez ’s alleg ed stunt in the p ark—calling Dahlia
to the scene o f a purported crime only to confront him with another officer and threat e n h im to stay silent. W ith f urther factual development, the same mig ht also be tru e o f t h e ong oing harassment and t h r e ats that Dahlia suffered from Rodrig uez , Penaranda and other officers.D A H L I A V

. R O D R I G U E Z 39

W e note that in the T i t l e VI I contex t—from which the Coszalter standard is derived—courts h ave found that far less serious actions were sufficient to deter a reasonable employ ee from eng ag ing in protected speech. See Burlington N. & Santa Fe Ry. Co. v. W hite

, 548 U.S. 53, 70–71 (2006) (concluding that a chang e in wor k a ssig nment w ithin the

s a m e job description would have deterred a reasonabl e employ ee f

r om making a c harg e of discrimination); Brooks

v. City of S

an Mateo
, 229 F .3d 917, 9 2 8–29 (9th C i r

. 2 0 00) (noting that “termination, disseminati o n of a neg ative employ ment refe r e n c e, issuance of an u ndeserved neg ative performance review and refusal to consider for promotion” constitute adverse employ ment ac tions, whereas “declining
to hold a j o b o p en for an employ ee and badmouthing an employ e e outside the job reference contex t” do not). Threats
to p u t someone in jail or that cause an employ ee to fear for his own safety

easily ex ceed the “reasonably likely to deter” standard. Construing the alleg ations i n the lig ht most favorable to Dahlia, we conclude that h e h a s sufficiently stated that he suffered adverse employ ment actions. 2 4

24 T h i s step o f th e En g

test h as a su

b

- elem en t th at is n ot at issu e in th is
ap p eal: w h eth er th e p lain tif

f ’ s sp eech w as a su

b stan tial o r m otiv atin g f acto r in th e ad v erse em

p lo y m en t actio n

. T h at issu e w as n o t raised in th e b rief s, an d w e d o n o t reach i t. S ee Bu tler v. Cu r

ry , 5 2 8 F.3 d 6 2 4
, 6 42 (9 th C i r

. 2 0 0 8 ). W e n o t e o n ly th at alth o u g h m u ch o f th e alleg ed h arassm e n t p reced ed Dah l ia’ s u ltim ate d isclo su re to L A SD, s u ch ch ro n o lo g y d o es n o t

n ecessarily w eig h ag ain st a f i n d in g th at th e h ara s s m e n t w as an ad v erse

em p l o y m e n t actio n m ean t to d isco u rag e Dah lia f ro m rep ortin g th e

m isco n d u ct t o o th ers. I n o t h er w o rd s, in so f

ar as th e h arassm en t w as in ten d e d to ch ill Dah lia’ s p ro tected s p eech

, it m ay q u alif y as an ad v erse

em p l o y m en t actio n

. S

ee, e.g

. , Allen v. S crib n er , 8 1 2 F.2 d 4 2 6
, 4 3 4 n .1 7 (9 th Cir.) (n o tin g in a First A m en d m en t § 1 9 83 retaliatio n case th at a v alid claim ca n b e stated “ [w ]h ere co m m en ts o f a g o v ern m en t o f f icial can

reaso n ab ly

b e in terp reted as in tim atin g th at so m e f o rm o f p u n ish m en t o r ad v erse

. . . actio n w ill f

o llo w th e f

ailu re to acced e to th e o f

f icial’ s req u estD A H L I A V

. R O D R I G U E Z 40

IV. CONCLUSION

W e o verrule Huppert v. City of Pittsburg an d h o l d that Da h l i a has sufficiently stated a claim pursuant to 42 U .S.C. § 1983, namely that he was retaliated ag ainst for his protected speech. W e remand to th e d istrict court for f urther proceeding s consistent with this opin ion.

REVERSED AND REMANDED.

PREGERSON, Circuit J udg e , specially concurring :

B u rbank Police Department Detective Ang elo Dahlia witnessed his fellow p olice officers phy sically abuse suspects i n custody during a hig h profile r obbery investig a tion. 1 Among other act s o f misconduct, Detective Dahlia saw L ieutenant Rodri g uez g rab a suspect by the throat a nd threate n h im by placing a g u n u nder his e y e. Detective D a hlia also witnessed Serg eant Penaranda repeatedly pun c h a suspect.

W h en D etective D ahlia reported these acts of misconduct
to L ieutenant Murphy

, his superi or officer, Murphy told Dahlia to “stop his sniveling .” W he n Dahlia persisted with

[th at th e em

p lo y ee cu rtail h is f irst am en d m en t rig h ts]” (seco n d alteratio n

o m itted in o rig in al) (in tern al q u o tatio n m ark s o m i t ted )), a men d ed

, 8 2 8 F.2 d 1 4 4 5 (9 th

Cir. 1 9 8 7 ).

1 B ecau se Dah lia’ s case w as d ism i ssed o n a m o tio n to d ism iss, w e t reat Dah lia’ s alleg atio n s in h is co m p lain t as tru e in rev iew in g h is claim

. S ee Two Rivers v. Lewis , 1 74 F.3 d 9 8 7, 9 91 (9 th Cir. 1 9 9 9 ).D A H L I A V

. R O D R I G U E Z 41

his c omplaints, Murphy told him he “didn’t want to hear this shit ag ain.” B efore and then after Dahlia was interviewed b y I nternal Affairs, L i e utenant Rodrig uez and Serg eant Pe n a r anda, his superior officers, threatened and intimidated him.

A ft e r the F B I became involved, L ieutenant Murphy tol d Detective Dahlia that “[ t] he F eds are d oin g a n investig ation and heads are g oing to roll. Don’t s a y a n y thing .” Serg eant Penaranda likewise instructed Da h l ia, “I t’s g onna be bad. You can’t say any

thing

. ” L ieutenant Rodrig uez admonished Dete ct i v e Dahlia “not to talk to the feds.” H e also warned D a h l i a , “ Fuck with me and I will put a case on y ou, a nd put
y ou in jail.”

Detective D ahlia reported L ieutenant Rodrig uez ’s threats
to the B urbank Police Officers’ Associati o n. Dahlia disclosed all of the officers’ unlawful misconduct to the L os Ang eles County Sheriff’s Department. S h o r tly thereafter, Dahlia was placed on administrative leave.

Dahlia filed a complaint u nder 42 U.S.C. § 1983 for F irst Amendment retaliation. I hold to the view that a ll of Dahlia’s speech that reported unlawful a cts b y his fellow officers is protected under the F irst Amendment f rom retaliation by his superior officers at the B urbank Police Department.

I. Ga r c e t

ti ’ s Lim itation on Speech Made P ursuant t o Of f icial Duties D oes Not Apply to Dahlia’s R eports of P olice Abuse.

I ag r ee with the majority

opinion that Detective Dahlia’s speech that reported police abuse is without a doubt a matter of public concern. Maj. Op. at 1 4

. I respectfully disag r eeD A H L I A V

. R O D R I G U E Z 42

with the majority on h ow Garcetti v. Ceballos

, 547 U.S. 410 (2006) applies to this case. The majority opinion tells us that under G arcetti
, “[ e] ven construing the facts and drawing all in f erences in Dahlia’s favor, the only r easonable conclusion is that Dahlia acted pursuant to h is job d uties when h e —as a d e t e ctive investig ating the Porto’s robbery and prior to receiving any threa t s o r o rders to the contrary —reported up the chain o f c ommand t o t h e supervising lieutenant overseeing the investig ation about abuse related to that same investig ation.” Maj. Op. at 3 3. Thus, Dahlia’s speech that reported up the c h a i n of command is not protected by the F irst A mendment ag ainst public em p l oy er retaliation. B ut according to t h e majority opinion, Dahlia’s speech that reported p o l i c e abuse outside the chain of command to I nternal Affairs, the B u rbank Police Officers’ Associa t i o n, and the L os Ang eles Sheriff’s Department, was not within his official duties and is protected under th e F irst A mendment
ag ainst public employ e r retaliation. Maj. Op. at 34

– 3 6. I n my v iew, th e m a

jority opinion misapplies Garcetti to Dahlia’s speech reported up the chain of command.

I n Garcetti
, the p u

blic employ ee, Richard Ceballos, was

a deputy district attorney w ho w as e x pected “to advise his supervisor about how b est to p roce ed with a pending case.” Garcetti
, 547 U.S. at 421. T o fulfill that duty

, Ceballos wrote

a memo that recommende d t h a t a pending c riminal c ase be dismissed. Id. at 414, 421. I n the memo, Ceballos stated his
op i n i on that an affidavit used to o btain a warrant contained misrepresenta t ions. Id. at 414. Ceballos’s supervisors reviewed his memo, discussed it, disag reed with its recommendation, and w ent f orward to prosecute the case. Id.
at 414–15, 423. The Supreme Court held that “ the memo was written pursuant to Ceballos’s o fficial duties.” Id. at 421–24.D A H L I A V

. R O D R I G U E Z 43

Thus, Ceballos could not base a F irst Amendment retaliation claim on the memo. Id.

Garcetti ’s restriction on F irst Amendment protection for public e mploy ee’s speech pursuant to their o fficial d u t ies does not apply to Dahlia for three reasons: (1) Dahlia’s superior officers restricted Dahlia’s speech so that they could

cover u p unlawful conduct; (2 ) Dahlia’s superiors forbade Dahlia fr o m reporting the police abuse; and (3) Dahlia’s superiors soug ht only

to silence Dahlia’s speech.

F irst, Garcetti did not g ive public employ ers a n unlimited rig ht to res t r ict the speech of their public employ ees. “Employ e e s in some cases may receive F irst A mendment protection for e x p ressions made a t work.” Garcetti
, 547 U.S.
at 420. Garcetti held that when pub l ic employ ees speak on matters of public concern, they “must face only those speech restrictions that are necessary f or their [ public] employ ers to operate efficiently

and effectively .” Id. at 419. T o that end, Garcetti ex plained that speech made pursua n t to official duties is speech that public employ ees ex press when carry ing
out routine f

u n ctions. Id. a t 421–23. The purpose o f Garcetti ’s restriction is to ensure that courts do not supervise

a g overnment employ er’s day

- t o-day operations. Id. at 420–23.

I n contrast, Dahlia’s superior officers restricted Dahlia’s speech to cover up blatantly unlawful conduct. Such conduct has no conne c t i on to the g overnment’s leg itimate efforts to

run e fficient a

nd effective r outine operations a t issue in Garcetti

. Thus, Dahlia’s superiors’ unlawful efforts are not the ty pe o f g overnment o p e rations that Garcetti seeks to insulate from judicial review. Id

. at 421–22; Tenn. S econdary Sch. Athletic Ass’n v. Brentwood A c ad.

, 551 U.S. 2 91, 3 00D A H L I A V

. R O D R I G U E Z 44

(2007) ( citing Garcet ti and holding that an a thletic association, like a public employ e r , c an “impose only those conditions on

. . . speech [ concerning matters o f public concern] that are necessary to manag ing an efficie n t a nd effective state-sponsored hig h school athletic leag

ue”).

Second, Garcetti instructs us that as a “practical” matter,

an official duty is a task that the “employ ee actually is

ex p ected t o p erform.” Garcetti
, 547 U.S. at 424–25. I t makes no sense to permit the B urbank Police Department to: (1) for b i d Dahlia from reporting police abuse; a nd then (2) clai m t hat the forbidden reporting was part of h is official d u t i e s, a nd thus, not subject to F irst Amendment protection
ag ainst retaliation.

Third, Garcetti emphasiz ed that p u b l i c e mploy ers must be able to e valuate official communications to ensure that t h ey reflect “substantive consistency and cla r i ty ,” and a re “accurate, demonstrate sound judg ment, and prom o te the [ public] employ er’s mission.” Id

. at 4 2 2

– 2 3

. None of this happened here. Dahlia’s superior off i c ers made no effort to evaluate D ahlia’s speech for c onsistency

, clarity

, o r conformity with a leg itimate employ er mission. Nor did Dahlia’s superiors r aise any concern with t h e v e r acity o r accuracy o f D ahlia’s speech. I nstead, Dahli a ’ s superiors
soug h t only

to silence his speech

.

F or th ese reasons, Garcetti ’s bar on F irst A mendment protection f

o r speech made p ursuant to official duties does
not apply to Dahlia’s reports of police abuse. 2 T h e r e f o r e

2 Co n t rary to th e m aj o rity o p i n io n ’ s su g g estio n , m y an aly sis d o es n o t h in g e o n w

h eth er Detectiv e Dah lia d ef i ed h is su p erio r of f icers’ o rd ers, i t is b ased so lely o n th e u n law f u l co n d u ct o f h is s u

perio r o f f icers. Maj

. Op

.D A H L I A V

. R O D R I G U E Z 45

Dahlia’s reports, a matter of p ublic concern, are protected b y the F ir s t A mendment f rom public employ er retaliation. G a rcetti
, 547 U.S. at 420, 424; Connick v. Myers
, 4 61 U

. S

. 138, 149 (19 8 3 ) ( f

inding that an assistant district attorney ’s inquiry to coworkers mad e a t work, that “touch[ e d] upon a matter of public concern,” constituted protected speech).

II. The Majority’s Chain o f Com m and G uidelines Lead to a Vexing Result in the Context of P o lice Abuse.

The practical reality is that quite a few police officers a re relu c t ant to report acts of police abuse committed by their fellow officers. T he “‘officer c ode of silence’” describes the understanding that “ ‘an o fficer d oes n ot provide adverse information a g ainst a fellow o fficer.’” Cunningham v. Gates
, 229 F .3d 1271, 1283 n.19 (9th Cir. 2000) (quoting Report o f the I ndependent Commission on the L os Ange l e s Police Department a t 168 ( 1991)). The public’s trust is d iminished when a law enforcement officer abides by the code of silence
to cover up misconduct eng ag ed in by fellow o f ficers. 3 T o

a t 3 3 n .1 9

. A cco rd in g ly

, Ga r cetti ’ s restrictio n sh o u ld n o t ap p ly to Detectiv e Dah lia’ s rep orts o f p o lice ab u se m a d e t o L ieu ten an t Mu rp h y

. Fro m th e o u tset, (1 ) L i eu ten an t Mu rp h y restricted Dah lia’ s sp eech so th at h e co u ld co v er u

p u n law f u l co n d u ct; (2 ) L ieu ten an t Mu rp h y f o rb a d e Dah lia f ro m rep ortin g t

h e p o lice ab u se; an d (3 ) L i eu ten an t Mu rp h y s o u g h t

o n ly to silen ce Dah lia’ s sp eech

.

3 S ee, e.g

. , Bra n d

o n v. Ho lt

, 4 6 9 U.S. 4 6 4
, 4 6 7 ( 1 9 8 5 ) (n o tin g d istrict

co u rt’ s f in d in g th at “ [d ]u e to a co d e o f silen ce in d u ced b y p e e r p ressu re

. . . , f ew —if an y —f o rm al co m

p l ain ts w ere ev er f

iled b y p o l ice p erso n n el” (in t ern al qu o ta tio n s m ark s o m itted )); Bla ir v. City o f Po mo n a , 2 2 3 F.3 d 1 0 7 4
, 10 8 0 (9 th Cir. Cal. 20 0 0) (h o l d i n g “ ev id en ce, if b eliev ed b y th e j u ry , w ou ld be su f

f icien t t o estab lish th at th e [P o lice] D ep artm en t h ad th e

cu sto m o f ch astisin g w

h istleb l o w ers” an d th at o f f icials i n th e Po l i ce Dep artm en t “ w ere aw are o f th e p o lice co de o f silen ce”); Matt P earce, Ju r yD A H L I A V

. R O D R I G U E Z 46

streng then the public’s c onfidence in t h e integ rity of its law enforcement officers, it is essential that a n o f f i cer be
encourag ed or required to report misconduct com mitted b y fellow officers.

The majority ’s c h ain of command g uidelines undermine policies that require law enforcement officers to report police abuse up the chain of co m mand. Under the majority opinion’s approach, a police officer who complies w ith his duty and reports unlawful act s t o h is superiors, and as a consequence is fired for his speech, has no F irst A mendment protection. I n contrast, a police officer who reports unlawful acts to the news media, and as a consequence is fired for his speech, is shielded by the F irst Amendment. 4 Police officers are trapped in a Catch 22: violate their duty to report up the chain o f command or ex pose the m s e l v e s to retaliation. A police officer who witnesses police abuse m a y turn a blind
ey e to avoid either consequence. This o u tcome “chills the

Ru les Ch ica g o Po lice ‘ C o d e o f S ilen ce’ Pro tected Felo n Co p , L OS A NG E L E S T I ME S , No v

. 1 4
, 2 0 1 2 (“ A p erv asiv e c u l t u r e o f silen ce in th e Ch icag o P o lice Dep artm en t led o f f icers to try to co v er u

p th e b ru tal 2 0 0 7 b ar b eatin g of a 11 5

- p o u n d b arten d er b y a 2 2 5

- po u n d o f

f

- d u ty o f f icer, a f ed eral j u ry h as decid ed .”); J o h n Hag ed o rn et al., Crime, Co rru p tio n a n d Co ver-u p s in th e Ch ica g o Po lice Dep a r tmen t , 2 0 1 3 U NI V

. OF I L L

. A T C HI

. D E P ’ T OF P O L I T I CA L S CI E NCE , A NTI -C O RRUPT I ON R E PORT N O

. 7, at 1 (“ T h e ‘ b lu e co d e o f s ilen ce,’ w h i le d i f f icu lt to p ro v e, is an in teg ral p art of th e d ep artm en t’ s cu l tu re an d it ex acerb ates th e co rru p tio n p ro b lem s.”).

4 A s w e h a v e reco g n ized

, “ [i]n th e co n tex t o f ‘ g o o d f aith

w h istleb lo w in g ’ in v o lv in g rep o rts w ith in a g o v ern m en t dep artm en t rath er th an to t h e p u b lic, ‘ th e brea d t h o f o n e’ s au d ien ce is irrelev an t’ b ecau s e

‘ [i]t w o u ld b e ab su

rd to ex ten d First A m en d m en t p ro tectio n on ly t o th ose

w h istleb lo w ers w

h o im m ed iately ap p ear o n th e lo cal n ew s.’ ” Ro bin so n v. Yo rk , 5 6 6 F.3 d 8 1 7
, 8 2 4 (9 th Cir. 2 0 0 9 ) (q u o tin g Hu ffo rd v. McEn a n ey , 2 4 9 F.3 d 1 1 4 2 , 1 1 5 0 (9 th Cir. 2 0 0 1 )).D A H L I A V

. R O D R I G U E Z 47

speech o f p otential w histleblowers in a culture that is already protective of its own.” Dahlia v. R odriguez , 689 F .3d 1094, 1104 ( 9th Cir. 2012). Garcetti does not require this untenable result.

III. Conclusion.

I ag ree with the majority o pinion that D et ective Dahlia stated a claim under 42 U.S. C. § 1983 for F irst A mendment retaliation. 5 B ut for the f oreg oing reasons, I believe that Dahlia’s claim may be b ased on a ll of his speech that r eported police abuse, whether r eported up the c hain of command o r outside the chain of command.

O’SCANNL AI

N, Circ u it J u dg e, with whom KOZ I NSKI
, Chief J udg e, joins, concurring only in the judg ment:

Seven y ears ag o, the Supreme Court counseled us that we had “misconceive[ d] the theoretical underpinning s” o f F irst Amendment retaliation law. Garcetti v. Ceballos

, 5 4 7 U .S. 410, 423 (2006). I r espectfully dissent f r o m the majority ’s analy sis beca u s e our c ourt makes the same e rror today b y rejecting what California l a w t ells us about the professional duties o f that state’s police officers. F urthermore, I fear that today ’s new a

pproach will lead to “judicial intervention in the conduct of g overnmental operations to a deg ree inconsistent with s o u n d principles of federalism and the separation o f

5 I ag ree w ith th e m aj o rity ’ s an a l y si s a n d c o n clu s io n th at Dah l ia

su f f icien tly stated an ad v er se em plo y m en t actio n

. T h e rem ain in g req u irem en ts of En g v. Co o ley are n o t at issu e in th is ap p eal. S ee 5 5 2 F.3 d 1 0 6 2 , 1 0 7 0 (9 th

Cir. 2 0 0 9).D A H L I A V

. R O D R I G U E Z 48

powers.” I

d. F ederal courts have no business manag ing the daily activities of police departments.

I

W e reheard this case en banc to consider whether Huppert

v

. City of Pittsburg

, 574 F .3d 696 (9th Cir. 2009), s h o u l d remain g ood law. That case called on us to apply Garcetti ’s holding that “when p ublic employ ees make state ments pursuant to their official duties, the employ ees are not sp e a k i n g as citiz ens for F irst A mendment purposes” to a lawsuit broug ht by a C alifornia police officer. 547 U.S. at 421. W e determined that the d uty of California law enforcement officers to report criminal activity meant that the officer’s reports o f police misconduct internally

, as w ell as to the F B I
, did not qualify a s protected “citiz en-speech.” Althoug h I mig ht not p reserve every line of that o p inion, at its
core, Huppert g ot Garcetti r ig ht. Two k ey insig hts emerg e from that case that h elp illustrate how the majority in this case has g one off track.

F i r s t, Huppert correctly appreciated that the Garcetti

inquiry is n o trifle. Id. a t 7 02–03. L ike Connick v

. Myers
, 461 U.S. 138 (1983), which asks whether a public e mploy ee’s speech is on a ma t t e r of public concern, Garcetti delineates the F irst Amendment’s v e r y scope. Put differently

, the speech at issue “must not be ex pression on-the-job and within the scope of the employ e e ’s duties; if i t is, there is no F irst Amendment protection for the speech.” Erwin Chemerinsky

, Constitutional Law: Principles and Policies 1 151 ( 4 t h ed. 2011). I nstead, a would-be plaintiff’s remedy usually lies inD A H L I A V

. R O D R I G U E Z 49

“the powerful n etwork of leg islative enactments” that protect whistleblowers. Garcetti , 574 F .3d at 425. 1

Second, Huppert understood that w ith the “pursuant

- t o

off i c i a l

- duties” test, the Garcetti Court was charting a clear

course that disting uished b etween citiz en-speech a nd employ e e-speech. See 5 74 F .3d at 702. 2 There, the Supreme Court ex plained that

[ the plaintiff] did not act as a citiz en when he
went about conducting h is d a i l y professional activities, such as supervising attorney s, investig ating charg es, and preparing filing s. I n the same way he did not speak as a citiz en

1 T h e lack o f a co n stitu

tio n al actio n m ay so m etim es b e f o r t h e b est, as t h i s “c o m p l icated em

p lo y m en t law i ssu e

. . . is m

u ch better su i ted f

o r a l e g i s l a t iv e s o l u

tio n .” J o h n Q. Mu llig an , N o te, Hu p pert, Reily

, a n d t h e In crea sin g Fu tility o

f Relyin g o n th e First Amen d men t to Pro t ect Emp lo yee S p eech

, 1 9 W m

. & Mary . B ill Rts. J . 4 4 9
, 4 5 6 (2 01 0 ). Man y q u e s t io n s arise, su ch as “ w h at ty p es o f co m

p lain ts sh o u ld b e p ro tected

, w h eth er in tern al o r ex tern al w h istleb lo w in g sh o u ld b e p ro tected

, an d w h at ty p es o f em p lo y er resp o n s es sh o u ld b e p u n i sh ed .” Id

. at 4 6 8.

2 T h e dissen ters in Ga rcetti
, a s w e l l t h e acad em ic literatu re sin ce,

reco g n ize th e b rig h t- lin e n atu re o f th e in q u i ry

. S ee, e.g

. , G a r cetti
, 5 4 7 U.S. at 4 3 2 (So u ter, J
., d i ssen tin g ) (m aj o r i t y “ categ o rically sep arat[es] th e citizen ’ s in t erest fr o m t h e em p lo y ee’ s i n terest”); i d

. at 4 2 7 (Stev en s, J
., d issen tin g ) (sim ilar); id

. at 4 4 6 (B rey er, J
., d i ssen tin g ) (m aj o rit y ap p ro ach d escrib ed as “ ab so l u te”); Ch em erin sk y , su p ra , at 1 1 4 7 (d escrib in g Ga rcetti as “ a categ o rical ex cep tio n f ro m co n stitu

tio n al
p ro tectio n f

o r sp eech w

h i ch is o n th e j ob in th e sco p e of th e em p lo y e e’ s d u ties”); Caro lin e A

. Fly n n , No te, 1 1 1 Mich

. L

. Rev

. 7 5 9
, 7 61 (2 0 1 3) ( Ga rcetti “ rep laced th e b alan cin g f r a m e w ork w ith a b rig h t

- lin e ru l e”); Mo n iq u e A lex an d ra B air, Ga r cetti v. Ceb a llo s : S wa pp in g Th e First Amen d men t Rig hts o

f Pu blic Emp lo

yees fo r G rea ter Go vern men t Co n tro l

, 3 7 Ru tg ers L . Rec. 4 4 , 5 2– 5 5 (2 0 1 0 ) (sam e).D A H L I A V

. R O D R I G U E Z 50

by writing a memo that a ddressed the proper disposition of a pending c riminal case. W h en he went to work and perfo r m ed the tasks he

was paid to perform, [ he] a c t ed as a g overnment employ ee.

Garcett i
, 547 U.S. at 422. The consequence o f the citiz en/employ ee d ichotomy is that protection i n t he workplace is t o b e the ex ception—not at all the rule. See,
e.g. , id. at 420 (“Employ ees in some cases may receive F irst Amendment protection f or e x pressions made at work”) (emphasis added); Morales v. Jones

, 494 F .3d 590, 598 (7th Cir. 2007) (noting that “the p urpose of Garcetti was to allow
g overnment employ e r s g reater influence over speech that

owes it[ s] ex istence to a p ublic employ ee’s professional responsibilities”).

W ith its decision to discard H uppert , and with its newly

minted “ g uiding principles” for identify ing protected speech, the majority opinion reopens doors that Ga rcetti slammed shut. See Maj. Op. at 21, 28–32.

I I

A

I cannot ag ree that “the Huppert majority failed to heed Garcetti ’s mandate” a

bout a practical inquiry by taking stock of California courts’ “description o f a California police officer’s professional d

uties.” Maj. O p

. at 21. Here is the entirety of what the Supreme Court said on this issue:

Two final points warrant mentioning

. F irst, a s indicated above, the parties in this case do notD A H L I A V

. R O D R I G U E Z 51

dispute that Ceballos wrote his disposition

memo pursuant to his employ ment duties. W e thus hav e n o occasion to articulate a comprehensive framewor k for defining the
scope o f an employ ee’s duties in cases where there is room for seri o u s d ebate. W e reject, however, the sug g estion t hat employ ers can rest r i c t e m p l o y e e s ’ r i gh t s b y creating

ex c essively broad job d escriptions. See post , at 1965, n

. 2 (S O UT E R
, J

. , dissenting ). The
p r o p e r inquiry is a practical one. F ormal jo b descriptions o ften bear little resemb lance to the duties an employ ee actually is ex pected to perform, and the listi n g o f a g iven task in an employ ee’s written job d e scription is neither
necessary nor sufficient to demonstrate that conducting the task is within the scope of the employ ee’s professional duties f or F irst Amendment purposes. 3

Garcetti
, 547 U.S. at 424. T h is passag e appears near the e nd of the opinion, after the Court a nnounced its conclusion o f law and after it applied that h o l d i n g to the plaintiff’s facts. Id. at 420–22. I t is written as a rejoinder to the principal dissent’s worry that “ one response to the Court’s holding will be moves by government employ ers to ex pand stated job descriptions to in c l u d e more official duties and so ex clude

even some currently protectable speech from F irst Amendment purview.” Garcetti
, 547 U.S. at 431 n.2 (Souter, J ., dissenting ).

3 T h e seco n d p o in t th e Co u rt m ad e is th at th e Ga rcetti an aly sis sh ou ld

n o t u n critically b e ap p lied w h e n acad em ic f reed o m is in v o lv ed

. S

ee 5 4 7 U.S. at 4 2 5

.D A H L I A V

. R O D R I G U E Z 52

Read in contex t, this practic a l -inquiry passag e simply directs u s n ot to eng ag e in a s t ilted o r ex cessively formulaic inquiry

. On the one hand, the Court is ex plaining that the sort of g a mesmanship J ustice Souter feared is not to be tolerated. On the other hand, the Garc e t ti Court is ex plaining (as
cog ently e x pressed by the Six th Circuit) that “[ s] pe e c h b y a public employ ee made pursuant to ad hoc or de facto d u t i e s not appearing in any written job descripti o n i s nevertheless
not protected if it owes its ex istence to the s p e a k er’s professional responsibilities.” Fox v. Traverse C ity Area Pub. Sch. Bd. of Educ.

, 605 F .3d 345, 348 (6th Cir. 2 010) (altera tion and internal quotation marks omitted). The prototy pical ex amples o f protected speech are “ writing a letter to a l o c a l newspaper, as the teacher-plaintiff d id in Pickering ” and “discussing politics with a co-worker.” Foley

v. Randolph

, 598 F .3d 1, 6 (1st Cir. 2010) (discussing Garcetti
, 547 U.S. at 423). I n G a r c e t t i
, the plaintiff did not eng ag e in these ty

pes of actions; in s t ead he “ spoke a s a prosecutor.” 547 U.S. at 421. That speech was unprotected because “[ w ] hen a publ i c e mploy ee speaks pursuant to employ ment responsi b i l ities” there g enerally is not a “relevant analog ue to speech by citiz ens who a re n ot g overnment employ ees.” I d. at 424.

I n the case before us, we confront what it means to speak

as a police officer. I would not interpret the Supreme Court’s caution ag a inst formalism—the “practical-inquiry ” passag e from Garce t t i

— as an obstacle to our evaluating a publicemploy e e pla i n t i f

f ’s case ag ainst the backdrop o f leg a l a nd professional nor m s

. See, e.g. , Tamayo v. Blagojevich

, 526 F .3d 1074 (7th Cir. 2008) (taking notice, in reviewing a motion to dismiss, of the o v ersig ht responsibilities of a state leg islative committee and o f the duties of the administrator o f the g aming board); F

o ley

, 598 F .3d at 4 (consideringD A H L I A V

. R O D R I G U E Z 53

Massachusetts General L aws ch. 48 § 42, which spells out a fire department c hief’s “ powers an d duties,” as well as the specific contract that g overned the chief’s employ ment).

B

1

California courts tell us that, “[ u] nlike civilia n s,” that state’s police o fficers are “ex p e c t e d to prevent others from committing crimes, to assist in the investig ation of crime, a nd
to u se their law enforcement authority to maintain the trust o f the public in its c riminal justice s y s tem.” People v. Owens
, 69 Cal. Rptr. 2d 428, 430–31 (Ct. A pp. 1997) (upholding a District Attorney ’s d ec i s ion to sing le out an off-duty police officer for prosecution for en ga g ing in a py ramid scheme because, in contrast to his civilian c o n federates, he h ad “failed to discharg e” the “special o blig ations” of his office).

This principle was first articulated i n the canonical case of Christal v. Police Commission of City and County of San Francisco
, 9 2 P.2d 416 (Cal. Ct. App. 1 9 39). See also Titus

v. Los Angeles Cnty. Civil S erv. Comm’n
, 181 Cal. Rptr. 699, 703 (Ct. App. 1982) ( stating that C h ristal “enunciated the role of a law enforcemen t o f f i cer.”). “Among the duties o f [ California] police officers” is the responsibility to discl ose “all information known to them which may lead t o t h e ap p r ehension and punishment of those who have
t r a n sg ressed” their state’s laws. Christal

, 9 2 P.2d.at 4 1 9

. The case further ex plained that “[ w ] hen po l i ce officers acquire knowledg e of facts which will tend to incriminate any person, it is their duty to d isclose such facts to their superiors and to testify freely c oncerning such facts when called upon to d o so before any duly constituted court or g rand jury

. ” Id.D A H L I A V

. R O D R I G U E Z 54

Christal went so far as to say that “[ i] t is for the performance of these duties that police officers a re c ommissioned and paid by the community .” Id. (emphasis added); co m p a r e with Garcetti , 547 U.S. at 422 ( ex plaining that when the plaintiff “performed the tasks he was paid to perform ” he had “acted

a s a g overnment employ ee” (emphasis added)). Dahlia h as not marshaled any authority undermining Huppe r t ’s conclusion that police officers still h ave these o blig ations when speaking to ex ternal law enforcement ag encies, such a s the county

sheriff or F B I

. See 574 F .3d at 707. 4

My coll e a gu e s deride these duties as either relics of a by g one era or jud i c i a l musing too n a ive to credit. See Maj. Op. at 20 n.9 (the “passag e from Christal relied upon by the

4 Calif o rn i a law

, in f

act, su g g ests j u st t he o p p o s ite. In o n e case, an A lh am bra P o l i c e Dep artm en t Of f icer w h o h ad sex u ally h arassed a

m o to rist w en t to h is u n io n rep resen tativ e f o r h elp in d ealin g w ith th e L o s A n g eles Sh erif

f ’ s Dep artm en t in v estig atio n in to h is m isco n d u ct. Alh a mb ra Po lice Officers Ass’n v. City o f Alh a mb ra Po lice Dep ’t
, 7 Cal. Rp tr

. 3 d 4 3 2
, 4 34

– 3 5 (Ct. A p p

. 2 00 3 ). In th at m eetin g , th e o f f icer d isclo sed in crim in atin g d etails; th e u n io n rep rese n t a t i v e f ailed to p ass alo n g ev id en ce to h is su

p erio rs an d h elp ed th e o f

f icer retriev e a d ocu m en t

w i t h th e d riv er’ s telep h o n e n u m b er o n i t—a v io latio n o f s ev er a l d ep artm en t po licies. Id

. T h e Calif o rn ia Co u rt o f Ap p e a l f

o u n d t h at th e

u n io n rep resen tativ e h ad an o blig ati o n to assist in b rin g in g th e o f f icer’ s

m isco n d u ct t o l i g h t, b ased o n Ch rista l an d its p ro g en y

. Ob v i ou sly th is b ro ad d u ty i s p art o f th e sp ecial resp o n sib ility of p o lice an d n o t so m eth in g ch aracteristic to m o st o th er f o rm s o f p u

b l ic em p l o y m en t. S ee, e.g

. , Da vis

v

. McKin n ey , 5 18 F.3 d 3 0 4
, 3 1 6 (5 th Cir. 2 00 8 ) (ex p lain in g it w as n o t

w ith in a p u

blic u n iv ersity ’ s “ au d ito r’ s j o b f u n ctio n to co m m u n icate w i th

o u tsid e p o lice au th o rities [su ch as th e F B I] o r o th er ag en cies [su ch as th e Eq u al Em

p l o y m en t O p p o rtu n ity Co m

m issio n ] i n an in v estig atio n ”); Freita g v. Ayers
, 4 6 8 F.3 d 5 28 (9 th Cir. 2 0 0 6 ) ( d ecid in g th at it w as n o t p art o f a co rrectio n al o f

f icer’ s “ o f f i cial task s to co m

p l ain to [a] Sen ato r or th e [In sp ecto r Ge n e r a l ] a b o u t th e state’ s f ailu re to p erf

o rm its d u ties
p ro p erly ”).D A H L I A V

. R O D R I G U E Z 55

Huppert majority r ea d s l i ke a civics tex tbook”). Yet the California Government Code in force today states that public safety officers m a y be ordered “ to cooperate with other

a gencies involved in c riminal investig ations [ and] [i] f a n

o f f i cer fails to comply with such an order, the ag enc y m a y officially charg e him or her with insubordination.” Cal. Gov’t Code § 3304. And, numerous Cal i f o r n i a cases have cited the C

h r i s t al principle over the decades to ex p ress “the all-important c o n c e pt of the peculiar and d elicate position police o f ficers hold in society .” Frazee v. Ci v i l Serv. Bd. of Oakland

, 170 Cal. App. 2d 333, 3 35 (Ct. App. 1959). As the City o f B urbank h as arg ued to us, in a wide variety o f setting s the u nique charg e of those tasked with enforcing the criminal laws has overridden other important r ig hts. S e e , e.g. , Titus
, 181 Cal. Rptr. at 363–65 (demanding that officers forsake attorney -client privileg e in o r d e r “ to cooperate in a criminal investig ation”); R iverside Cnty. Sheriff’s Dept. v. Zigman
, 87 Cal. Rptr. 3d 358, 361–62 (Ct. App. 2 008) (describing “a law enforcement officer’s duty to report criminal acti v i t y to his or her employ er,” and ex p laining that the “statutory privileg e at issue in this case, must y ield when [ its] ex ercise is inconsistent with the performance of the officer’s duties”).

The majority also rejects this “court-cr e a t ed job description applicable t o every member of [ the] profession” by invoking the specte r of employ e r g amesmanship. Maj. Op. at 21. Given its seventy -plus y ear lineag e, the California police officer description of d uty could not possibly be a reaction to the Garcetti opinion. Cf. Garcetti
, 547 U .S. at 431 n.2 (Souter, J
., dissenting ) (“I a m p essimistic e n o u gh to

ex p ect that o ne response to the Court’s holding will b e moves b y g o v e r n m e n t e m p l o y e r s t o e x p a n d s t a t e d j o b descriptions.

. . .”). More importan t l y , h owever, there a re leg itimate r easons for California to have imposed admittedlyD A H L I A V

. R O D R I G U E Z 56

ex a c ting oblig a tions on its police. J ust as Caesar’s wife must be above reproach, “peace officers have been held to a hig her standard than other p ublic employ e es,” beca u s e that is

es s e n t i al to “maintain the public’s confidence in its police force.” Pasadena Police Officers Ass’n v. City o f Pasadena

, 797 P.2d 608, 611 (Cal. 1 990) (“[ T ]he public ex pects p e ace officers to b e above suspicion of violation of t h e v e ry laws they a r e s w orn to enforce” (internal quotation marks a nd alterations omitted)).

2

R e c ently

, the Supreme Court recalled that categ orical rules h ave t h e v i r t ue of keeping “easy c ases easy .” Florida

v. Jardines

, 133 S. C t

. 1 4 09, 1417 (2013). I n that spirit, I read Garcetti as f

u lly compatible w ith a stated oblig ation o f California police officers to report crime—a subset of which i s t o h e l p ex pose and to assist in the investig a tion of crime within their ranks. 5 A California-police-officer plaintiff must eng ag e wit h “California’s jurisprudence defining such duties.” Huppert
, 574 F .3d at 707. After al l

, “the p laintiff bears the burden of showing [his] sp e e ch was spoken in the capacity of a private c itiz en and not a pu b lic employ ee.” Eng , 552 F

. 3d at 1071.

W h en a s h ere, a c ourt is called on to evaluate whether a complai n t s t a tes a F irst A mendment retaliation claim, it should e valuate its plausibility ag ainst thi s leg al landscape. Cf. Morales

, 4 94 F

. 3d at 598 (“[ T] he M i l waukee Police Department requires officers to report all potential crimes.

5 S ee Da h lia v

. R o d

r i q u ez , 6 8 9 F.3 d 1 09 4
, 1 1 0 5 (9 th C ir. 20 1 2) (ch aracterizin g Hu

p p ert ’ s ru le as o n e u n d er w h ich “ w h i stleb lo w in g on f ello w o f f icers is p art o f

a p o l ice o f

f i cer’ s o f f icial d u ties”).D A H L I A V

. R O D R I G U E Z 57

B y info rming A.D.A. Chisholm o f the alleg ations ag ainst Chief J ones and D eputy Chief Ray
, Morales was p erforming that d uty as well. According ly

, his conversation with A.D.A. Chisholm is not protect e d under the F irst Amendment a fter Garcetti .”). I n a similar vein, as mentioned above, the Seventh Circuit considered wheth e r a complaint stated a claim for F irst Amendment retaliation in the contex t of statelaw duties:

Ms. Tamay o’s testimony was g i ven to the House Gaming Committee, a leg islative committee responsible f or o verseeing the activities of the [ I llinois Gaming B oard]

, and h e r t e s t i m o n y i n v o l v e d t h e a l l e g e d
wrong do i n g of public officials in their
at t empts to encroach on the ag e ncy ’s independence. As the Administrator of the
ag ency , she had a duty to see that the law was administered properly

. This responsibility encompassed a duty to bring a l leg ed
wrong doing within her ag ency to the attention of the relevant p u b lic authorities—here, the House Gaming Committee.

Tamayo
, 526 F .3d a t 1 0 9 1

. That administrator soug h t to “escape the strictures of Garcetti by incl u d i ng in her complaint the c onclusory leg al statement that she acted ‘as a

c i tiz en

. . . outside the d uties of her employ

ment.’ ” Id

. at 1092. Appropriat ely invoking Bell Atlantic Corp. v

. Twombly

, 550 U.S. 544 ( 2007), the court did not credit these leg al conclusions “couched as a factual alleg ation.” Id.

Similarly

, it would be up to a California police officer to “plead[ ] factual content that a llows the court to draw theD A H L I A V

. R O D R I G U E Z 58

reasonable inference that” his d epartment imposes less string ent crime-reporting duties on its employ ees than Califor n i a courts routinely acknowledg e. Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009). 6 He would n eed to p u t at issue that his is a “case[ ] where t here is room for serious debate.” Garcetti
, 547 U.S. at 4 24. Such application of G arcetti is also in line with the rule that, in measuring the sufficiency o f

a c o mplaint, “the review ing court [ should] draw on its judicial ex p erience and c ommon s ense”; it is e minently l og ical that officers h ave precisely the duty that Calif o rn i a courts claim they

do. Iqbal , 556 U.S. at 679. 7

A s suming an officer’s “well-pleaded facts” do sug g est that Christal/Huppert are a p oor fit f or his ci rcumstance, id.
at 679, then the case would p r oceed to summary judg ment. At that stag e, evidence showing tha t his duties are truly limited in the fashion he had all e ge d w o u ld need to be proffered. Discovery g enerally will have unearthed the relevant materials, and then the c ourt would be free to discern which statements, if any , fell outside the officer’s duties. See,
e.g. , Brammer-Hoe l t e r v

. Twin Peaks Charter Acad.

, 492 F .3d 1 192, 1204–05 (10th Cir. 2007) (dec i ding at summary judg ment which statements b y teachers passed a nd failed Garcetti ); Charles v. Grief

, 522 F .3d 508, 5 13 n.17 (5th

6 A n o f f icer m ig h t d o th at b y describ in g h is em p lo y m en t co n tract, a

co llectiv e b arg ain in g ag reem en t, o r a (f orm al o r in f

o rm al) p o licy lim itin g h is d isclo su

re o blig atio n s.

7 Sim ply p u t, “ [t]h ere is n o th in g startlin g i n th e co n cep tio n th at a p u b l ic

serv an t ’ s rig h t to retain h i s of f i ce o r em p lo y m en t sh o u ld d ep en d u

p o n h is

w illin g n ess to f

o reg o h is co n stitu

tio n al rig h ts an d p riv ileg es to t h e ex ten t th at th e ex ercise of su ch rig h ts an d p riv i leg es m ay b e in co n sisten t w ith th e p erf o rm an ce o f th e d u ties o f h is o f f ice o r em p lo y m en t.” Ch rista l

, 9 2 P .2 d at 4 1 9

.D A H L I A V

. R O D R I G U E Z 59

Cir. 2008) (consi d er i n g t h e “ f actual circumstances surrounding the speech at issue” to decide “whether Garcetti applies”).

The Court’s mission in Garcetti was to articulate a “screening test a judg e should a pply ” when a g overnment employ e e tried to invoke the F irst Amendment. See Garcetti
, 547 U.S. at 445–46 (B rey er, J
., dissenting ). Concerned that, in p ractice, not every police department in California ex pects its officers to live up to the duties spelled out by its judiciary

, the majority decides to scr e en a l m ost nothing

. B y contrast,

as I have ex plained, t h e a p p roach faithful to Garcetti would have been to preserve Huppert as t h e default presumption,

w h i le also a cknowledg ing the possibility that on occasion a police officer mig

ht be able to avoid its application.

I I I

W ith utmost respect to my c olleag ues in the majority

, I find their “g u iding principles” about i m p l ementing Garcetti similarly untenable. Maj. Op. at 28.

F irst, the majority d e c i d e s that if “a public employ ee takes his job concerns to p e rs o n s o u tside the work place in addition to r aisi n g t h em up the chain of command at his workplace, t

h e n t h o s e ex ternal communications are ordinarily
not mad e a s a n employ ee, but as a citiz en.” Maj. Op. a t 29. B y contrast, as California courts have made c lear, 8 the police have a unique role in society that makes it inappropriate to rely on c ase law involving o ther ty pes of public employ

ment to decide that officers ’ speech will be protected when delivered “to persons outside the work pla c e , ” i .e. , outside

8 S ee su pra n o te 7 an d acco m

p an y i n g tex t

.D A H L I A V

. R O D R I G U E Z 60

their own police department. Id. at 28; cf. Kendall Turner, Dahlia v

. R o d rig uez : A Chance to Overturn a D angerous P r e cedent

, 65 Stan. L

. Rev. O nline 59, 63 (2012) (astut el y perceiving that “[ i] f a janitor clean i ng Dahlia’s station h ad
not ed the same illeg al interrog ation tactics, he could presumably e njoy F irst Amend m e n t protection while reporting them because his job did n o t r equire him to ex pose illeg al activity ”). 9

The majority ’ s third “g uiding principle”—an employ ee is

no longer carry

ing out his professional duties when he does

so in the face of a th re a t o r directive by his supervisor to break the law or protocol—follows the Second Circuit’s misg uided approach. See Jackler v. Byrne
, 658 F .3d 225, 242 (2d Cir. 2011). Once ag ain

, the majority resorts to the “practical-inq

u i r y ” passag e for substantiation. Maj. O p. 31. And once ag ain, we “g et[ ] G arcett i b a c k wards.” Bowie v

. Maddox , 653 F .3d 45, 48 (D.C. Cir. 2011).

There are two key prob l ems with the Second Circuit’s approach that our court a dopts today

. F irst, i t c onflates the “a d v erse-action” e lement of a r etaliation claim a nd the “pursuant-to-official-duties” test. Subtly

, the Jackler rule allows concern for what happened to a particular plaintiff to color the threshold question abou t job duties. See Bowie
, 653 F. 3 d at 48 (“[ I ] t is n ot difficult to sy mpathiz e with the Second Circuit’s dubious interpretation of Gar c e t ti

. The police chief’s instruction to J a ckler and the actions he ordered J ackler to take were clearly illeg a l

. Bu t the illeg ality o f a g overnment employ er’s order does not necessarily mean the

9 I w o u ld n ot ad o p t t

h e m aj ority ’ s seco n d p rin cip le co n cern i ng t h e

“ s u b j ect m atter” o f sp eech f

or th e sam e reaso n

. Maj

. Op

. at 3 0

. A p olice

o f f icer is n o t “ an av erag e p u

b lic em p lo y ee.” Id

.D A H L I A V

. R O D R I G U E Z 61

employ e e h as a cause of action under the F i r s t A mendment when he contravenes that order.”).

Second, Jack

l e r ’s holding subverts Garcetti by not apply ing the Court’s c ateg orical r ule that the p rotected-status inquiry hing es on job duties, and job duties alone. Ja c k l e r involved a police officer who witnessed his serg eant lose his temper and unjustifiably st r ike an arrestee. 6 58 F .3d at 230–31. After the officer reported what had happ en e d in a supplemental report, the serg eant pressured him to substitute his honest report for o ne “which contained false, incomplete and misleading information.” I d. at 231. He r e fused, a nd was fired. Id. at 232.

I n d ismissing his claim u nder Garcetti
, the d i strict court determined that it was “clear o n t h e facts as alleg ed b y J ackler that he refused to withdraw or alter his truthful report in the belief that the proper ex ecution of his d uties a s a police officer required no less.” Id. at 2 33. The Second Circuit did
not disag r ee that as a “police officer [ he cert a i n l y ] ha[ d ] a duty not to substitute a falsehood for the truth.” I d

. at 241. B ut then, instead of apply ing “Garcetti ’s employ ee-versusc itiz en rule,” the Second Circuit “created a sig nif i c a n t

ex c e ption to it.” Caroline A. F ly n n, Note, Policeman, Citizen, or Both? A Civilian Analogue Exception to Garcetti v. Ceballos, 111 Mich. L . Rev. 759, 775 (2013).

Today ’ s e n banc court simply borrows Jackler without discussing its rationale; but as the D.C. Circuit has ex plained, that case is indefensible. T h e Second Circuit reaso n e d t h at Officer “J ackler’s refusal to comply w ith orders to retract his truthful Report and file o n e t h a t was false has a civilian analog ue a

nd that J ackler [ thus] was not simply doing his job in refusing to obey thos e o r ders from the d e partment’s topD A H L I A V

. R O D R I G U E Z 62

administrative officers and the chief o f police.” Jackler

, 658 F .3d at 241–42. The problem with this approach is that while Garcetti did state that its abstract ambition was t o protect the kinds of sp e e ch f o r w hich there is a relevant civilian analog ue, 547 U.S. at 424
, t he Supreme Court unambig uously settled on a categ orical rule as opposed to the potentially more c a l ibrated (but also more subjective) proposals floated in the trio of dissenting opinions. See Bowie
, 653 F

. 3d at 48 (“As a l l o f the dissenting justices
recog niz ed

, G a rcetti c ateg orically denies recovery

. . . to plaintiffs who spoke pursua n t t o official duties.” (internal quotation marks and alteration omitted)). The principal dissent puts this matter as plain a s can be, ex plaining that “when a l aw e n forcement officer ex pressly balks at a superior’s order to violate constitutional rig hts he is sworn to protect” the majority opinion places this “speaker[ ] b ey ond the r each of F irst Amendment protection ag ainst retaliation.” Garcetti , 547 U.S. at 433 (Souter, J ., dissenting ). 1 0

I would therefore adopt neither the majority ’s “contrary

to-orders” max im nor its r ule a b o ut “ d i s c losures outside the chain of command.”

10 A lth o u g h t

h e acad em ic literatu re—so m e o f w h ich h as b een cited in th e b rief s—h as u rg ed u s to d o oth erw ise, o u r d u ty i s to a p p l y S u p rem e C o u r t p r eced en t f

airly rath er th an w

h ittle it aw ay in a case w i t h
sy m p ath etic f acts. S ee, e.g

. , T u rn er, su

p ra , at 64 (“ W h ile lo w er co u rts are

o f co u rse n o t f

ree to ig n o re Ga rcetti
, th ey are f ree to —an d sh ou ld

—tak e

a n arro w v iew o f w

h at co n stitu

tes an em p lo y ee’ s ‘ o f

f icial d u ties.’ ”); i d

. at 6 3 (“ Of co u rse, th e f

u n d am en tal p ro b lem m ay b e w i th Ga r cetti itself rath er t h an H u p p ert .”); Fly

n n , su pra , at 7 7 2 (alth o u g h d isp o sed t o th e d issen tin g v iew as a p o licy m atter, co n ced i n g , “ in ag reem en t w ith t h e D.C. Circu it, th at t

h e Seco n d Circu it m isap p lied Ga rcetti in Ja ckler : a civ ilian

an alo g u e ex cep tio n d o es n o t f o llo w f ro m eith er th e lan g u ag e o r th e lo g ic

o f th at d ecisio n ”).D A H L I A V

. R O D R I G U E Z 63

I V

Remaining now is the appli c a tion of the foreg oing framework to Dahlia’s complaint.

A

1

As for Dahlia’s report to I nternal Aff ai r s ( “I A”), the majority states “[ i] t is po s sible that Dahlia’s professional duties required him to meet with I A at I A’s insistence, but it is also plausible that Dahlia’s a ct o f meetin g w i t h I A was outside h is job duties for the purpose of the F irst Amendment.” Maj. O p

. 34. U nder the Supreme Court’s Twombly and Iqbal precedents, it is plaintiff’s responsibility
to show that his speech qualifies for c onstitutional protection. See Iqbal

, 556 U.S. at 678 (the Rule 8(a) ple ading standard “asks for more than a sheer p ossibility

. . . .[ w] here a complaint p leads f

acts that are merely con s i s t e nt w ith a defendant’s liability

, it stops short of t h e line b etween possibility a

nd plausibility of entitlement to r elief” (internal quotation marks omitted)). The majority i n c a n t s the term “plausible” w ithout pointing to alleg ations which make it so.

Dah l i a’s complaint alleg es that I A initiated an investig ation and came to interview him three times. Compl. ¶ 36. Dahlia d oes not say he soug ht out I A, nor does he claim that he was f

r ee either to stay silent when asked about the corruptio n he had witnessed, or to lie about it. Given theD A H L I A V

. R O D R I G U E Z 64

inherent im plausibility of that scenario, 1 1 his complaint most certainly lacks “factual a lleg ations that ‘raise [ his] rig ht to relief above the speculative level.’” Tamayo
, 526 F .3d at 1 0 9 2 (quoting Twombly

, 550 U.S. at 555) (alteratio n i n orig inal)).

2

Dahlia’s a lleg ati o n s about his “ speech” to the County Sheriff’s D epartment are similarly threadbare. The majority concludes that the protected status of his speech likely turns

on “ whe ther discovery reveals that Dahlia’s supervisors i nstructed him to meet with and disclose information to the [ sheriff] .” Maj. O p. a t 36. Such construction of “pursuant to official d u ties” is w oefull y cramped. See, e.g. , Foley

, 598 F .3d a t 6 (“I n analy

z ing whether F oley spoke as a citiz en rather than as the Chief of the F ire Department, we first n ote that it is n o t dispositive that F oley was not required to speak
to the media.”); Brammer-Hoelter

, 4 92 F .3d at 1203 (“[ S] peech may be made pursuant to an e m p loy ee’s official duties e ven if it d eals with activities that the employ ee is not

ex p ressly required to perform.”); W i l liams v. Dallas Indep. Sch. Dist.
, 4 80 F .3d 689, 694 (5th C ir. 2007) (per curiam) (“Simply because W illiams wrote memoranda, whi ch were not demanded of him, does not mean he w as not acting within the course of performing

his job.”).

W ithout the majority ’s errant g loss, Dahlia’s a l l e g ations fall short. H is complaint r e f e r s to n o facts that sug g est, let alone plausibly sug g est, that in cooperating with the sheriff’s

11 S ee, e.g

. , Ja ckler , 6 5 8 F.3 d at 2 4 1 (“ Of co u rse a p o lice o f

f icer h as a d u ty n o t t o su

b stitu te a f alseh o o d f

o r th e tru th

, i.e.
, a d u ty to tell ‘ n o th in g b u t th e tru th ’ . . . .”).D A H L I A V

. R O D R I G U E Z 65

investig ation of corruption in the B urbank Police Department he was not “discharg ing the responsibilities o f [ hi s ] o f fice, [ but instead] app e a r i n g as “[ J ohn] Q. Public.” Tamayo
, 526 F .3d at 1092. And as already detailed, the case law and California Government Code Section 3304 indicate that cooperating with an ex ter n al law enforcement ag ency “is a duty he ‘actually [ w a s ] ex pected to perform.’” Foley

, 598 F .3d at 7 (quoting G arcetti , at 424–25). 1 2

Thus, I must conclude that Dahlia’s complaint does not state a claim fo r First Amendment retaliation u pon which relief may

be g ranted.

B

I n our circuit, thoug h

, Dahlia s t i l l would have one more chance to pursue his claim. Alth o u gh the odds are long

, Dahlia c ould conceivably satisfy the p leading standa rd as to the protected status of h is speech by addi n g particular alleg ations about the nature of h is crime-reporting duty at the Bu r b a nk Police Department. I n my view, he would b e entitled to be g ranted leave to a mend his complaint, and it is

on that narrow basis that I would reverse the judg ment dismissing his complaint. S ee Lopez v. Smith

, 203 F .3d 1122, 1130 (9th Cir. 2000) ( en b anc) ( ex plaining that the court must

12 B ecau se ou r co u rt is ad m o n ish ed n o t to m an u f actu re arg u m en ts f

or p arties, u n lik e th e m aj o rity

, I w o u l d no t co n sid er Dah l ia’ s rep o rt to th e B u rb an k P o lice Of

f icers’ A sso ciatio n as an altern ativ e f o rm o f p ro tected
sp eech

. See Un ited

S ta tes v. W

i llia mso n , 4 3 9 F.3 d 1 1 2 5
, 1 1 3 8 (9 th Cir. 2 0 0 6 ); Maj

. Op

. a t 3 5

. Dah lia h as n o t claim ed an y th in g b ey o n d h is
statem en ts t o In tern al A f f airs, to t h e sh erif

f ’ s d ep artm en t, an d h is

u n su b stan tiated rep ort to th e FB I as co n stitu tio n ally p ro tected s p eech

. No r, h as h e ev en alleg ed th at “ th e retaliatio n h e f aced w as directly cau s ed b y th is act o f

rep o rtin g .” Maj . Op . at 3 5

.D A H L I A V

. R O D R I G U E Z 66

“ gr ant leave to amend even if no request to amend t h e pleading was made, un l e s s it determines that the pleading could not possibly be cured by the alleg a tion of other facts”). I also ag ree with the majority to the ex tent that Dahl i a ’s

r equest for leave to amend to satisfy the adverse a ct i o n requirement must be honored. Maj. Op. at 36–37 nn. 22–23.

V

T h e malfeasance by officers of the B urbank Poli c e Department which Dahlia w itnessed an d t h e threats a nd intimidation he endured—if true—ar e s hocking a nd 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 judg es with a mandate to try
to remedy e very social problem.” P lyler v. Doe
, 457 U.S. 202, 253 ( 1982) (B urg er, J
., dissenting ) (citing L i ndsey v

. Normet
, 4 05 U.S. 56, 74 (1972)). Along side h i s F irst Amendment c ause, Dahlia broug ht claims und e r p rovisions of California law that (1) protect public e m p l oy ees from retaliation for disclosing an abuse of authority or a dang er to the public safety

, California Government Code § 53298, a nd (2) that shield emplo y ees who complain to a g overnment ag ency , California L a

b o r Code § 63 1 0. These are the kinds of remedies that the Supreme Court has ex p l ai n ed whistleblowe r s should pursue in the absence of a constitutional claim. See Garcetti
, 547 U.S. at 425. However rig hteous our aims, when we stretch the Constitution to match

our sense o f justice, we ex c eed “[ t] he judicial p ower” vested
to us in Article I I I and, by re n dering state law nug atory , disserve our federal union.D A H L I A V

. R O D R I G U E Z 67

W hile I narrowly c oncur in the judg ment, I m u s t respectfully dissent from the court’s erroneous analy sis o f the F irst Amendment in this case.