Claiming a federal appellate court’s dismissal of a former Burbank police detective’s lawsuit will have a “powerful chilling effect” on future whistleblowers, a consumer rights advocacy group on Tuesday asked the U.S. 9th Circuit Court of Appeals to reconsider the ruling.
The nonprofit group Public Citizen joined attorneys for the former detective, Angelo Dahlia, in petitioning the full court for a rehearing because the ruling involves whistleblowing and 1st Amendment rights for public employees, which plaintiff attorneys called issues of “exceptional importance.”
Dahlia claims he was pushed out of the department after he relayed instances of misconduct made by fellow officers in the aftermath of a robbery in 2007 — a claim that was dismissed by a lower court, and subsequently by a three-judge panel from the U.S. 9th Circuit Court of Appeals. The rarely granted proceeding is called an “en banc” hearing, which would be made up of Chief Judge Alex Kozinski and 10 other judges chosen randomly.
The petition also contends that the panel’s ruling conflicts with decisions made by other U.S. District circuit courts.
“If the case is not reheard, it will exert a powerful chilling effect on officers who might otherwise report official misconduct and abuse,” Scott Michelman, an attorney for Public Citizen, said in a statement.
In response to the petition on Tuesday, Burbank City Atty. Amy Albano said there are already laws that protect “true whistleblowers.”
“We strongly believe the 9th Circuit Court decision was correct,” she said.
The three-judge panel based its decision on the Huppert v. City of Pittsburg ruling, in which an officer participated in a police corruption investigation and then notified the FBI.
But the three-judge panel recognized it was on shaky legal ground when it was deciding the case and felt compelled to address the issue, Michelman said in an interview.
The panel called Huppert’s argument that reports of police misconduct are not protected by the 1st Amendment “dangerous.”
Dahlia’s attorneys and Public Citizen contended in their petition that “the practical consequence of the Huppert [decision], applied by the panel here, is that the 1st Amendment never protects the speech of any California police officer who exposes official misconduct to any listener....”
The circuit court’s decision states that if reporting police abuse and misconduct during the course of an internal investigation is considered a professional duty — and thus not protected under the 1st Amendment — “as a matter of law, it is inevitable that police officers will be even less willing to report misconduct that they are now, particularly to their superiors.”
Essentially, the ruling could deter officers from speaking out about police misconduct, depriving the public of vital information, Michelman said in an interview.
In Dahlia’s case, the officer claims he was harassed and intimidated after he witnessed his colleagues beat, choke and threaten a suspect with a gun in connection with a 2007 robbery at Porto’s Bakery in Burbank.
After Dahlia was interviewed by internal affairs investigators, he alleges that certain fellow officers urged him to stay quiet and “stay loyal.”
Los Angeles County Sheriff’s Department investigators — who Albano stressed were brought in at the city’s behest — also interviewed Dahlia about the incident. According to his claim, four days later, he was placed on administrative leave.
Albano disagreed with the “characterization of the facts” in the case, saying Dahlia lied to the Police Department when he was questioned about the alleged misconduct he witnessed and that he admitted he failed to report it.