The city filed a petition with the Supreme Court in November arguing that former Det. Angelo Dahlia was not protected by the 1st Amendment, and therefore could not sue the city for retaliation because as a police officer it was his professional duty to report crimes he witnessed, the Burbank Leader reported.
The city's petition to review the U.S. 9th Circuit Court of Appeals decision was denied Monday, Supreme Court records show. Dahlia's attorney, Michael Morguess, said his client was happy that he could proceed with the federal lawsuit.
"In this case, we allege that clearly Mr. Dahlia was put on administrative leave to remove him from the department because he was a whistle blower," he said. "We expect the district court case will pick up again shortly."
City Atty. Amy Albano said city officials were disappointed but not shocked by the decision, given the Supreme Court hears only 75 to 80 of the roughly 10,000 petitions it receives each year.
"We felt there were very, very important issues that have impacts not just to the city of Burbank, but to the state of California and across the country," Albano said.
Dahlia, a 20-year department veteran, claimed he was placed on administrative leave on May 15, 2009, four days after he reported that he saw officers beat, choke and threaten a robbery suspect thought to be involved in a 2007 takeover robbery of Porto's Bakery in Burbank.
He sued the city in federal court the following November, while he was still on paid leave, alleging that he was retaliated against for speech that was protected.
The city argued that under California law, as a police officer, Dahlia was required to report any criminal misconduct he witnessed.
"Any other rule would mean that police officers could pick and choose what crimes they reported — an intolerable result for effective and honest law enforcement," the city argued in the petition to the Supreme Court.
Additionally, the city argued that placing an employee on paid administrative leave was not an adverse employment action, and, therefore, Dahlia could not allege retaliation.
Dahlia is also suing the city for six causes of action in Superior Court. That lawsuit has been put on hold pending the completion of his administrative appeal.
Dahlia was fired in 2010 after city officials accused him of being involved in covering up the alleged misconduct, though Dahlia claimed that fellow officers threatened him to keep quiet.
Two months ago, an independent arbitrator in an advisory decision ruled that Dahlia should get his job back.
City Manager Mark Scott has yet to make a decision on whether to reinstate him.