Lead Opinion
Opinion by Judge PAEZ; Concurrence by Judge PREGERSON; Concurrence by Judge O’SCANNLAIN.
OPINION
■ In this case we address the extent to which a police officer retains First Amendment protection when- he discloses his fellow officers’ misconduct. Angelo Dahlia, a detective in the Burbank Police Department (“BPD”), brought this 42 U.S.C. § 1983 First Amendment retaliation suit against the City of Burbank, the Chief of Police and several other police officers. The district court granted the defendants’ motions to dismiss the § 1983 cause of action for failure to state a claim. Fed. R.Civ.P. 12(b)(6). The court reasonéd that, under Huppert v. City of Pittsburg,
We reverse the district court on both grounds and overrule Huppert. We hold that (1) after Garcetti v. Ceballos,
I. FACTUAL AND PROCEDURAL BACKGROUND
A.
Following an armed robbery on December 28, 2007, at Porto’s Bakery & Café in Burbank, California, Dahlia was assigned to assist in the robbery investigation, which was supervised by defendant Lieutenant Jon Murphy. The day after the robbery, Dahlia observed defendant Lieutenant Omar Rodriguez grab a suspect by the throat with his ‘left hand, retrieve his handgun from its holster with his right hand, and place the barrel of the gun under the suspect’s eye, saying, “How does it feel to have a gun in your face motherfucker.” Rodriguez noticed Dahlia looking on in disbelief. Later that same evening, Dahlia heard yelling and the sound of
Dahlia was subsequently, excluded from participating in suspect interviews, .and high-ranking officers within BPD essentially took control of the investigation. Witnesses and suspects continued to be physically assaulted and beaten in BPD’s interview rooms, while officers prevented anyone from walking past the rooms or into the audio room. Dahlia met with Murphy to disclose the abuse that he had witnessed. Dahlia told Murphy that the interviews were getting too physical and that Dahlia was having difficulty maintaining order in the investigation. Murphy responded by telling Dahlia to “stop his sniveling.”
The physical beatings continued in BPD interview rooms and in the field, evidenced by the booking photos of various suspects. At one point, Chief of Police Stehr appeared at a briefing and, upon learning that not all of the robbery suspects were in custody, said, “Well then beat another one until they are all in custody.”
After witnessing the misconduct and abuse, Dahlia approached Murphy a second time and pleaded that he did not have control over the case. Murphy became upset and told Dahlia that he “didn’t want to hear this shit again” and that he was “tired of all the B.S.” In January 2008, Dahlia and another detective met with Murphy a third time, telling him that “the beatings have to stop” and “the madness ha[s] to stop.” Murphy did nothing to respond to these complaints and the abusive tactics continued.
In April 2008 officers learned that BPD’s Internal Affairs (“IA”) unit was planning to investigate the unlawful physical abuse and the other illegal procedures relating to the Porto’s robbery investigation. Around the same time, Rodriguez began going out of his way to monitor Dahlia and ultimately threatened him not to say anything to IA. As the IA investigation grew nearer, Rodriguez and Peñaran-da contacted Dahlia on á daily basis, threatening him to keep quiet. Before the IA investigation commenced, Chief Stehr told, an IA lieutenant, “I put you in this position to make it go away.”
On April 29, 2008, Dahlia was interviewed for the first time by IA. Immediately after the interview, Rodriguez confronted Dahlia and demanded to know what Dahlia had said during the interview. Dahlia’s complaint is silent regarding what he actually said during the IA interview, though he told Rodriguez, out of fear, that he did not say anything to IA. When- asked by Peñaranda if he had disclosed anything to IA, Dahlia, out of fear for his safety, also told Peñaranda that he had not.
On May 8, 2008, IA interviewed Dahlia a second time. After the interview, Dahlia received a call from Rodriguez directing him to report to a park. Dahlia went to the park, believing that there was an incident occurring, but encountered only Rodriguez and another officer there. Rodriguez approached him aggressively and asked, “What the fuck did you tell them?” Rodriguez then asked, almost verbatim, the questions posed by IA and attempted to intimidate Dahlia into revealing his answers. Rodriguez, Peñaranda and another officer incessantly harassed, intimidated and threatened Dahlia over the following weeks, to the point where his working conditions were “fully consumed” by the intimidation.
On April 2, 2009, Rodriguez called Dahlia into his office, told Dahlia to sit down, and closed the door and the blinds. Rodriguez then retrieved his gun from its holster, looked at Dahlia, and placed the gun in a drawer. At one point during the meeting, Rodriguez placed his hands on the desk and told Dahlia, “I’m not a fucking cheese eating rat” and then commented that he was not afraid of being suspended or fired. Rodriguez also leaned forward and said, “Fuck with me and I will put a ease on you, and put you in jail. I put all kinds of people in jail, especially anyone who fucks with me!” Dahlia reported this incident to the Burbank Police Officers’ Association president, who reported it to the Burbank City Manager.
On May 11, 2009, LASD interviewed Dahlia about the Porto’s robbery investigation. During the interview, Dahlia disclosed the defendants’ misconduct, threats, intimidation and harassment. Four days later, Dahlia was placed on administrative leave pending discipline.
Dahlia alleges that he was subjected to adverse employment actions as a result of his protected speech activities and that there was no legitimate justification for the adverse actions. In alleging a § 1988 violation, Dahlia claims that defendants’ retaliatory acts included, inter alia, threats, ostracism, denial of employment opportunities, undue scrutiny of work performance, denial of continued employment, and malicious statements calculated to destroy his reputation.
B.
Dahlia filed his § 1983 complaint in November 2009, alleging seven claims: (1) retaliation against a public employee for speech disclosing police misconduct, in violation of the First Amendment; (2) retaliation against a public employee for disclosing information to a government or law enforcement agency, in violation of California Labor Code section 1102.5; (3) retaliation against a public employee for making an oral or written complaint to a governmental agency, in violation of California Labor Code section 6310; (4) retaliation against a public employee for disclosing an abuse of authority or a substantial and specific danger to public health or safety, in violation of California Government Code section 53298; (5) a violation of the Bane Act, California Civil Code section 52.1(b), which prohibits interference with the exercise of constitutional rights; (6) intentional infliction of emotional distress; and (7) negligent infliction of emotional distress. Dahlia sued the City of Burbank, Police Chief Stehr, Lieutenants Murphy and Rodriguez, Sergeants Peñaranda and Jose Duran, and Detective Chris Canales.
Police Chief Stehr moved for summary judgment on several grounds, including qualified immunity. The district court de
■ The remaining individual defendants moved, primarily 'relying on Huppert, to dismiss the case for failure to state a claim. Fed.R.Civ.P. 12(b)(6). Granting these motions, the district court determined that Dahlia’s § 1983 claim was barred because (1) he spoke pursuant to his official duties and thus was not constitutionally protected, and (2) placement on paid administrative leave .is not an adverse employment action. The district court accordingly dismissed Dahlia’s § .1983 claim with prejudice, and declined to exercise supplemental jurisdiction over Dahlia’s state law claims.
A panel of this court reluctantly affirmed on the ground that it was bound by Huppert v. City of Pittsburg to conclude that Dahlia spoke pursuant to his official duties. Dahlia v. Rodriguez,
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291 to review the district court’s final judgment dismissing with prejudice Dahlia’s claims against Murphy, Peñaranda, Rodriguez and the City of Burbank.
III. ANALYSIS
“It is well settled that the state may not abuse its position as employer to stifle ‘the First Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of public interest.’ ” Eng v. Cooley,
In Pickering, the Supreme Court defined a balancing test for First Amendment retaliation cases involving public employees. The task for us is to seek “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering,
But our inquiry does not end there. In unraveling the case law since Pickering, we have further refined the Court’s balancing test into a five-step inquiry. We ask:
(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.
Eng,
In this case, we can easily answer the first question. Dahlia’s speech — reporting police abuse and the attempts to suppress its disclosure — is quintessentially a matter of public concern. See Connick,
The district court, however, ruled that Dahlia’s § 1983 First Amendment claim was barred because it found that (1) as a matter of law, Dahlia could not establish that he spoke “in the capacity of a private citizen and not a public employee,” Eng,
A. Speech as a Private Citizen
1.
In Garcetti the Supreme Court narrowed the First Amendment protections for public employees.
In Garcetti plaintiff Ceballos was a deputy district attorney for Los Angeles County assigned as a calendar deputy during the relevant period.
In rejecting Ceballos’ claim, the Court held that, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421,
The Court further explained that various easy heuristics are insufficient for determining whether an employee spoke pursuant to his professional duties. The Court said that it was “not dispositive” that “Ce-ballos expressed his views inside his office, rather than publicly.... Employees in some cases may receive First Amendment protection for expressions made at work.” Id. at 420,
The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.
Id. at 424-25,
Three years after Garcetti, a panel of this court decided Huppert v. City of
Although the Huppert majority engaged in the requisite “practical” inquiry in determining that the officers acted pursuant to their official duties as to the first two speech acts, id. at 703-06,
In relying on Christal’s sweeping description of a California police officer’s professional duties, the Huppert majority failed to heed Garcetti’s mandate that “the proper inquiry [to determine the scope of an employee’s professional duties] is a practical one.” Garcetti
Given the factual similarities here, the three judge panel in this case, although expressing disagreement with Huppert, concluded that it was bound by it. We overrule Huppert to the extent that it improperly relied on a generic job description and failed to conduct the “practical,” fact-specific inquiry required by Garcetti. In so holding, we reject the defendants’ argument that California police officers are unique for the purposes of First Amendment retaliation claims. See Kannisto v. City of San Francisco,
2.
We also reject Judge O’Scannlain’s — and the defendants’ — argument that Christal and its progeny are controlling here for the additional reason that the authority he cites is inapposite. Although Judge O’Scannlain’s concurrence does.not mention it, O’Scannlain Concurrence at 1086-88, Christal explicitly limited its holding to whether police officers who were being investigated for criminal activities could assert their Fifth Amendment right against self-incrimination and still remain police officers.
The thrust of Judge O’Scannlain’s argument — like that of the defendants — is that police officers are unique under California law for the purpose of First Amendment retaliation claims. This is true, he argues, because California police officers have a freestanding professional duty to disclose the unlawful conduct of others to their superiors as well as to outside law enforcement agencies. O’Scannlain Concurrence at 1086-88. Yet neither the case law nor the'statute on which'he relies supports this proposition.
Rather, the California cases cited by defendants — a subset of which Judge O’Scannlain relies on — stand for the unsurprising proposition that a public employee cannot, when ordered, refuse to comply with a lawful investigation and escape discipline for so doing. As the California courts have reiterated' even outside the policing context, “ ‘[a] public employee, of course, cannot be forced to give an answer which may tend to incriminate him, but he may be required to choose between disclosing information and losing his employment.’ ” Hingsbergen v. State Pers. Bd.,
That an officer could be disciplined for failing to comply with an order only begs the question in Dahlia’s case. Here, the only allegations in the record are that Dahlia was ordered not to comply with an investigation.
3.
Our case law since Garcetti provides further guidance. In Posey, we analyzed a § 1983 First Amendment retaliation claim brought by a high school security guard against the school district that was dismissed on summary judgment. Posey v. Lake Pend Oreille Sch. Dist. No. 84,
In Posey, we then held that the district court erred in granting summary judgment to the school district. We reasoned that there was a genuine dispute as to whether Posey acted pursuant to his official duties when he expressed his concern about school security in a letter to district, administrators. Posey,
In Freitag, defendant prison officials appealed a jury verdict in favor of a correctional officer rendered before Garcetti. Freitag,
In more than a half-dozen cases since Freitag, we have planted additional guideposts for determining the scope of a plain
4.
Precisely because of the fact-intensive nature of the inquiry, no single formulation of factors can encompass the full set of inquiries relevant to determining the scope of a plaintiffs job duties. However, we find that existing case law and common sense dictate a few guiding principles relevant to the case before us.
First, particularly in a highly hierarchical employment setting such as law enforcement, whether or not the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties. See Frei-tag,
Second, the subject matter of the communication is also of course highly rel
Third, we conclude that when a public employee speaks in direct contravention to his supervisor’s orders, that speech may often fall outside of the speaker’s professional duties. Indeed, the fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a “practical” matter, within the employee’s job duties notwithstanding any suggestions to the contrary in the employee’s formal job description. Garcetti
These principles serve as a necessary-guide to analyzing the fact-intensive inquiry mandated by Garcetti
5.
,We next apply these principles to Dahlia. Although the district court focused exclusively on Dahlia’s disclosure to LASD, Dahlia alleged several independent acts that could potentially be subject to First Amendment protection. Because the district court granted a Rule 12(b)(6) motion to dismiss, our task is not to resolve any factual dispute, but merely to determine whether Dahlia’s allegations support a reasonable inference that he acted outside of his professional duties in each instance.
a.
Dahlia initially disclosed the misconduct that he had observed to defendant Lieutenant Murphy, the officer in charge of the Porto’s robbery investigation, who told him to “stop his sniveling.” Dahlia alleged that he met with Murphy two additional times .regarding the misconduct, pleading that “the beatings have to stop.” Even construing the facts and drawing all inferences in Dahlia’s favor, the only reasonable conclusion is that Dahlia acted pursuant to his job duties when he — as a detective investigating the Porto’s robbery and prior to receiving any threats or orders to the contrary — reported up the chain of command to the supervising lieutenant overseeing the investigation about abuse related to that same investigation.
Dahlia subsequently met with BPD’s Internal Affairs officers three times. He alleged that he was harassed and threatened not to report any misconduct in anticipation of and following each meeting. Conspicuously, Dahlia does not allege that he actually disclosed any misconduct during his interviews with IA.
In meeting with the IA officers, Dahlia does not allege that he acted in contravention of his supervisors’ orders. Dahlia does not allege that anyone ever instructed him not to meet with IA, but only that supervisors threatened him not to say anything when interviewed. Because Dahlia appears to have done precisely what his superiors wanted him to do—that is, meet with IA but stay mum—we cannot say that Dahlia acted in contravention of their orders.
Nonetheless, Dahlia may very well have acted outside his chain of command when he met with IA. Although Dahlia did not explicitly allege that he acted outside his professional duties when he met with IA, this is not dispositive because we must draw all reasonable inferences in his favor. It is possible that Dahlia’s professional duties required him to meet with IA at IA’s insistence, but it is also plausible that Dahlia’s act of meeting with IA was outside his job duties for the purpose of the First Amendment. At this stage of the proceedings, where, as here, there is no allegation regarding a BPD officer’s duties with respect to meeting and cooperating with IA, we must resolve the ambiguity in Dahlia’s favor. Drawing this inference in Dahlia’s favor, we conclude that Dahlia has adequately alleged that his meetings with IA are protected by the First Amendment.
c.
After word had spread that the FBI might be investigating BPD, Rodriguez allegedly called Dahlia into his office and threatened to “put a case on” him and put him “in jail.” Dahlia alleged that he reported this incident to the Burbank Police Officers’ Association president, who in turn reported it to the city manager.
d.
Ultimately, Dahlia disclosed the defendants’ misconduct, threats, and harassment to LASD when interviewed about the Porto’s robbery investigation.
B. Adverse Employment Action
The district court dismissed Dahlia’s suit on the alternative ground that placement on administrative leave is not an adverse employment action. We disagree. We conclude that, under some circumstances, placement on administrative leave can constitute an adverse employment action.
“To constitute an adverse employment action, a government act of retaliation need not be severe and it need not be of a certain kind. Nor does it matter whether an act of retaliation is in the form of the removal of a benefit or the imposition of a burden.” Coszalter v. City of Salem,
We have not previously decided whether placement on administrative leave constitutes an adverse employment action. See Lakeside-Scott v. Multnomah,
Dahlia made other allegations of conduct that may also constitute an adverse employment action. “Various kinds of employment actions may have an impermissible chilling effect. Depending on the' circumstances, even minor acts of retaliation can infringe on an employee’s First Amendment rights.” Id. at 975. Dahlia alleged that Rodriguez threatened to “put a case” on him and to put him “in jail.” These threats, if true, were made with the specific purpose of chilling Dahlia’s speech, and they appear “reasonably likely to deter” employees from speaking about misconduct observed within the BPD. Indeed, if it is true that Dahlia did not disclose what he knew when interviewed by IA, the chilling effect was in fact achieved, albeit for a limited time. The same might be said of Rodriguez’s alleged stunt in the park — calling Dahlia to the scene of a purported crime only to confront him with another officer and threaten him to stay silent. With further factual development, the same might also be true of the ongoing harassment and threats that Dahlia suffered from Rodriguez, Pe-ñaranda and other officers.
We note that in the Title VII context— from which the Coszalter standard is derived — courts have found that far less serious actions were sufficient to deter a reasonable employee from engaging in protected speech. See Burlington N. & Santa Fe Ry. Co. v. White,
We overrule Huppert v. City of Pitts-burg and hold that Dahlia has sufficiently stated a claim pursuant to 42 U.S.C. § 1983, namely that he was retaliated against for his protected speech. We remand to the district court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Notes
. The following factual background is drawn from the allegations of Dahlia’s complaint. Because Dahlia's complaint was dismissed under Federal Rule of Civil Procedure 12(b)(6), we take his factual allegations as true for the purposes of our review. TwoRivers v. Lewis,
. Murphy, Rodriguez and Peñaranda were all high-ranking supervisors who outranked Dahlia.
. Prior to en banc oral argument, Dahlia dismissed his appeal against the other named defendants, Canales and Duran.
. We have sometimes described the Eng steps as "sequential." See, e.g., Johnson,
. In addressing the “public concern” prong of Eng, we clarified that “[i]t is not determinative that [a plaintiff] did not air his concerns publicly.” Anthoine v. N. Cent. Cntys. Consortium,
. Although it was not essential to finding that Ceballos acted pursuant to his professional duties in preparing the memorandum to his supervisor, the Court offered further explanation:
[T]he fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case [] distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline.... Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do.... Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was. paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.
Garcetti,
. Judge O’Scannlain's concurrence suggests that there should be a "bright line” between citizen-speech and employee-speech. O’Scannlain Concurrence at 1084-85, id. at 1084 n. 2 (noting that "[t]he dissenters in Garcetti, as well as the academic literature since, recognize the bright-line nature of the inquiry”). We do not take issue with the straight-forward proposition that Garcetti altered the Pickering balancing approach by recognizing that once a plaintiff's speech is classified as having been made pursuant to an employee's official duties, then such speech is categorically denied First Amendment protection. See O'Scannlain Concurrence at 1084 n. 2 and citations therein. However, this bright-line rule only begs the question of whether a plaintiff actually spoke pursuant to his. official duties. It is that inquiry that is before us here, and Garcetti explicitly said that there is no bright line rule for making that determination. As Judge O’Scannlain quotes: " 'Employees in some 'cases may receive First Amendment protection for expressions made at work.' " O'Scannlain Concurrence at 1085 (quoting Garcetti,
. As to the first issue in Huppert, the majority considered the factual record and determined that the undisputed facts (including an admission by the plaintiff, Huppert) enabled it to conclude as a matter of law that Huppert assisted the District Attorney pursuant to his professional duties.
As to the second issue, although the dissent disagreed, the majority similarly concluded that, based on the undisputed facts, the plaintiff officers investigated corruption and prepared a report for the police chief and the city manager pursuant to their professional duties. Id. at 706; id. at 720 (W. Fletcher, J., dissenting). In concluding that there .Was a disputed question of fact as to the scope of the plaintiffs’ duties, the dissent pointed out that the police chief had instructed the plaintiffs to cease their investigation whereas the plaintiffs' direct supervisor had instructed the opposite. Id. at 720 (W. Fletcher, J., dissenting). We hold, infra, that in determining the scope of a plaintiff's job duties, a fact-finder should consider the instructions given to a plaintiff by his superiors. To the extent that Huppert can be read .to preclude this consideration, we overrule it.
. The full passage from Christal relied upon by the Huppert majority reads like a civics textbook:
"The duties of police officers are many and varied. Such officers are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them. Among the duties of police officers are those of preventing the commission of crime, of assisting in its detection, and of disclosing all information known to them which may lead to the apprehension and punishment of those who have transgressed our laws. When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors and to testify freely concerning such facts when called upon to do so before any duly constituted court or grand jury. It is for the performance of these duties that police officers are commissioned and paid by the community.” Huppert,574 F.3d at 707 (quoting Christal, 92 P.2d at 419).
. California Government Code section 3304(a) provides in part:
Nothing in this section shall preclude a head of an agency from ordering a public safety officer to cooperate with other agencies involved in criminal investigations. If an officer fails to comply with such an order, the agency may officially charge him or her with insubordination.
Cal. Gov’t Code § 3304. See Riverside Cnty. Sheriff’s Dep't v. Zigman,
. The other California cases cited by Judge O'Scannlain arid the defendants, as in Chris-tal, invariably involve a police officer trying to avoid incriminating himself. That a police officer cannot hide from the law and simultaneously keep his badge does not imply that an officer has a freestanding professional duty to report the unlawful activity of others. See Szmaciarz v. Cal. State Pers. Bd.,
. As we recognized in Posey, our view that "the scope and content of a plaintiffs job responsibilities is a question of fact” is consistent with holdings of the Third, Seventh, and Eighth Circuits, but not with that of the Fifth, Tenth, and D.C. Circuits.
Moreover, even several of the circuits that classify the inquiry into the scope of professional duties as a "question of law” nevertheless undertake a tailored, fact-specific assessment of a plaintiff's professional circumstances. See, e.g., Charles v. Grief,
. Other circuits have set forth illustrative lists of factors to consider when determining whether a given instance of speech falls within the scope of a plaintiff's job duties. See, e.g., Handy-Clay v. City of Memphis,
. In its amicus brief, the Riverside Sheriffs' Association and Riverside Sheriffs’ Association Legal Defense Trust support this chain-of-command distinction. See Amicus Br. at 2
. We decline to adopt as binding law a passing reference made by some of the Garcetti dissenters. O'Scannlain Concurrence at 1090 (quoting Garcetti,
. As discussed supra, we find it evident that . Dahlia's speech addressed, in each instance, a matter of public concern.
. Were this case at the summary judgment stage and the undisputed facts enabled us to conclude whether Dahlia spoke pursuant to his job duties, then we could perform the "screening” role that Judge O’Scannlain exhorts us to play. O’Scannlain Concurrence at 1089. At the pleading stage, our role is more limited.
. By reporting to Murphy, a lieutenant, and not the sergeant leading the investigation, Pe-ñaranda, Dahlia likely skipped one level in the chain of command. This ambiguity is not sufficient to cast doubt on our conclusion here, where Dahlia specifically alleged that Murphy "oversaw the entire Porto’s robbery investigation,” and Peñaranda — -Dahlia’s direct supervisor — was the subject of Dahlia’s report.
. Judge Pregerson argues lucidly why the First Amendment should protect a police whistleblower who defies his superiors’ attempts to silence him. See generally Preger-son Concurrence. As we conclude, supra in III.A.4., when a public employee speaks in direct contravention to his supervisor's orders, that speech may often fall outside of the
. This is not merely an "employee beef: management has acted incompetently,” Handy-Clay,
. In his briefs on appeal, Dahlia also referenced disclosing information to the FBI, but there are no allegations in the complaint that Dahlia ever spoke with, let alone disclosed anything to, federal agents.
. The district court also found that Dahlia failed to allege that any of the individual defendants, other than Chief Stehr, caused him to be placed on administrative leave or to suffer any other adverse employment consequence. To the extent that the particular threats and harassment by Peñaranda and Rodriguez can constitute adverse employment actions, we disagree. Dahlia has alleged as clearly as possible, pointing to specific instances, that both defendants threatened and harassed him in an attempt to silence him. With respect to Dahlia's placement on administrative leave, on remand Dahlia may seek leave to amend his complaint to clarify his allegations. We note that " 'personal participation is not the only predicate for section 1983 liability. Anyone who "causes” any citizen to be subjected lo a constitutional deprivation is also liable.’ " Gilbrook v. City of Westminster,
. In his opposition to defendants' motions to dismiss, Dahlia requested leave to amend his complaint. In light of its ruling that Huppert controlled, the district court never addressed Dahlia's requests for leave to amend, apparently because any amendment would have been futile. On remand, in the event that Dahlia renews his request to amend his complaint, the district court should grant him leave to clarify his allegations.
. This step of the Eng test has a sub-element that is not at issue in this appeal: whether the plaintiff’s speech was a substantial or motivating factor in the adverse employment action. That issue was not raised in the briefs, and we do not reach it. See Butler v. Curry,
Concurrence Opinion
concurring:
Burbank Police Department Detective Angelo Dahlia witnessed his fellow police officers physically abuse suspects in custody during a high profile robbery investigation.
When Detective Dahlia reported these acts of misconduct to Lieutenant Murphy, his superior officer, Murphy told Dahlia to “stop his sniveling.” When Dahlia persisted with his complaints, Murphy told him he “didn’t want to hear this shit again.” Before and then after Dahlia was interviewed by Internal Affairs, Lieutenant Rodriguez and Sergeant Peñaranda, his superior officers, threatened and intimidated him.
After the FBI became involved, Lieutenant Murphy told Detective Dahlia that “[t]he Feds are doing an investigation and heads are going to roll. Don’t say anything.” Sergeant Peñaranda likewise instructed Dahlia, “It’s gonna be bad. You can’t say anything.” Lieutenant Rodriguez admonished Detective Dahlia “not to talk to the feds.” He also warned Dahlia, “Fuck with me and I will put a case on you, and put you in jail.”
Detective Dahlia reported Lieutenant Rodriguez’s threats to the Burbank Police Officers’ Association. Dahlia disclosed all of the officers’ unlawful misconduct to the Los Angeles County Sheriffs Department. Shortly thereafter, Dahlia was placed on administrative leave.
Dahlia filed a complaint under 42 U.S.C. § 1983 for First Amendment retaliation. I hold to the view that all of Dahlia’s speech that reported unlawful acts by his fellow officers is protected under the First Amendment from retaliation by his superi- or officers at the Burbank Police Department.
I. Garcetti’s Limitation on Speech Made Pursuant to Official Duties Does Not Apply to Dahlia’s Reports of Police Abuse.
I agree 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 1067. I respectfully disagree with the majority on how Garcetti v. Ceballos, 547 U.S. 410,
In Garcetti, the public employee, Richard Ceballos, was a deputy district attorney who was expected “to advise his supervisor about how best to proceed with a pending case.” Garcetti
Garcetti’s restriction on First Amendment protection for public employee’s speech pursuant to their official duties does not apply to Dahlia for three reasons: (1) Dahlia’s superior officers restricted Dahlia’s speech so that they could cover up unlawful conduct; (2) Dahlia’s superiors forbade Dahlia from reporting the police abuse; and (3) Dahlia’s superiors sought only to silence Dahlia’s speech.
First, Garcetti did not give public employers an unlimited right to restrict the speech of their public employees. “Employees in some cases may receive First Amendment protection for expressions made at work.” Garcetti
In contrast, Dahlia’s superior officers restricted Dahlia’s speech to cover up blatantly unlawful conduct. Such conduct has no connection to the government’s legitimate efforts to run efficient and effective routine operations at issue in Garcetti. Thus, Dahlia’s superiors’ unlawful efforts are not the type of government operations that Garcetti seeks to insulate from judicial review. Id. at 421-22;
Second, Garcetti instructs us that as a “practical” matter, an official duty is a task that the “employee actually is expected to
Third, Garcetti emphasized that public employers must be able to evaluate official communications to ensure that they reflect “substantive consistency and clarity,” and are “accurate, demonstrate sound judgment, and promote the [public] employer’s mission.” Id. at 422-28,
For these reasons, Garcetti’s bar on First Amendment protection for speech made pursuant to official duties does not apply to Dahlia’s reports of police abuse.
II. The Majority’s Chain of Command Guidelines Lead to a Vexing Result in the Context of Police Abuse.
The practical reality is that quite a few police officers are reluctant to report acts of police abuse committed by their fellow officers. The “ ‘officer code of silence’ ” describes the understanding that “ ‘an officer does not provide adverse information against a fellow officer.’ ” Cunningham v. Gates,
The majority’s chain of command guidelines undermine policies that require law enforcement officers to report police abuse up the chain of command. Under the majority opinion’s approach, a police officer who complies with his duty and reports unlawful acts to his superiors, and as a consequence is fired for his speech, has no First Amendment protection. In 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 First Amendment.
III. Conclusion.
I agree with the majority opinion that Detective Dahlia stated a claim under 42 U.S.C. § 1983 for First Amendment retaliation.
. Because Dahlia’s case was dismissed on a motion to dismiss, we treat Dahlia’s allegations in his complaint as true in reviewing his claim. See TwoRivers v. Lewis,
. Contrary to the majority opinion’s suggestion, my analysis does not hinge on whether Detective Dahlia defied his superior officers’ orders, it i's "based solely on the unlawful conduct of his superior officers. Maj. Op. at 1076 n. 19. Accordingly, Garcetti’s restriction should not apply to Detective Dahlia’s reports of police abuse made to Lieutenant Murphy. From the outset, (1) Lieutenant Murphy restricted Dahlia's speech so that he could cover up unlawful conduct; (2) Lieutenant Murphy forbade Dahlia from reporting the police abuse; and (3) Lieutenant Murphy sought only to silence Dahlia’s speech.
. See, e.g., Brandon v. Holt,
. As we have recognized, "[i]n the context of 'good faith whistleblowing’ involving reports within a government department rather than to the public, ‘the breadth of one’s audience is irrelevant' because '[i]t would be absurd to extend First Amendment protection only to those whistleblowers who immediately appear on the local news.’ ” Robinson v. York,
. I agree with the majority’s analysis and conclusion that Dahlia sufficiently stated an adverse employment action. The remaining requirements of Eng v. Cooley are not at issue in this appeal. See
Concurrence Opinion
with whom
Seven years ago, the Supreme Court counseled us that we had “miseonceive[d] the theoretical underpinnings” of First Amendment retaliation law. Garcetti v. Ceballos,
I
We reheard this case en banc to consider whether Huppert v. City of Pittsburg,
First, Huppert correctly appreciated that the Garcetti inquiry is no trifle. Id. at 702-03. Like Connick v. Myers,
Second, Huppert understood that with the “pursuant-to-official-duties” test, the Garcetti Court was charting a clear course that distinguished between citizen-speech and employee-speech. See
[the plaintiff] did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, [he] acted as a government employee.
Garcetti
With its decision to discard Huppert, and with its newly-minted “guiding principles” for identifying protected speech, the majority opinion reopens doors that Gar-
II
A
I cannot agree that “the Huppert majority failed to heed Garcetti’s mandate” about a practical inquiry by taking stock of California courts’ “description of a California police officer’s professional duties.” Maj. Op. at 1070. Here is the entirety of what the Supreme Court said on this issue:
Two final points warrant mentioning. First, as indicated above, the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate. .We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job- descriptions. See post, at 1965, n.2 (SOUTER, J., dissenting). The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.3
Garcetti
Read in context, this practical-inquiry passage simply directs us not to engage in-a stilted or excessively formulaic inquiry. On the one hand, the Court is explaining that the sort of gamesmanship Justice Souter feared is not to be tolerated. On the other hand, the Garcetti Court is explaining (as cogently expressed by the Sixth Circuit) that “[sjpeech by a public employee made pursuant to ad hoc or de facto duties not appearing in any written job description is nevertheless not protected if it owes its existence to the speaker’s professional responsibilities.” Fox v. Traverse City Area Pub. Sch. Bd. of Educ.,
In the case before us, we confront what it means to speak as a police officer. I would not interpret the Supreme Court’s caution against formalism — the “practical-inquiry” passage" from Garcetti — as an ob
B
1
California courts tell us that, “[u]nlike civilians,” that state’s police officers are “expected to prevent others from committing crimes, to assist in the investigation of crime, and to use their law enforcement authority to maintain the trust of the public in its criminal justice system.” People v. Owens,
This principle was first articulated in the canonical case of Christal v. Police Commission of City and County of San Francisco,
The majority also rejects this “court-created job description applicable to every member of [the] profession” by invoking the specter of employer gamesmanship. Maj. Op. at 1070. Given its seventy-plus year lineage, the .California police officer description of duty could not possibly be a reaction to the Garcetti opinion. Cf. Garcetti
2
Recently, the Supreme Court recalled that categorical rules have the virtue of keeping “easy cases easy.” Florida v. Jardines, — U.S. -,
When as here, a court is called on to evaluate whether a complaint states a First Amendment retaliation claim, it should evaluate its plausibility against this legal landscape. Cf. Morales,
Ms. Tamayo’s testimony was given to the House Gaming Committee, a legislative committee responsible for overseeing the activities of the [Illinois Gaming Board], and her testimony involved the alleged wrongdoing of public officials in their attempts to encroach on the agency’s independence. As the Administrator of the agency, she had a duty to see that the law was administered properly. This responsibility encompassed a duty to bring alleged wrongdoing within her agency to the attention of the relevant public authorities — here, the House Gaming Committee.
Tamayo,
Similarly, it would be up to a California police officer to “plead[] factual content that allows the court to draw the reasonable inference that” his department imposes less stringent crime-reporting duties on its employees than California courts routinely acknowledge. Ashcroft v. Iqbal,
Assuming an- officer’s “well-pleaded facts” do suggest that Christal/Hwppert are a poor fit for his circumstance, id. at 679,
The Court’s mission in Garcetti was to articulate a “screening test a judge should apply” when a government employee tried to invoke the First Amendment. See Gar-cetti
Ill
With utmost respect to my colleagues in the majority, I find their “guiding principles” about implementing Garcetti similarly untenable. Maj. Op. at 1074.
First, the majority decides that if “a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen.” Maj. Op. at 1074. By contrast, as California courts have made clear,
The majority’s third “guiding principle” — an employee is no longer carrying out his professional duties when he does so in the face of a threat or directive by his supervisor to break the law or protocol— follows the Second Circuit’s misguided approach. See Jackler v. Byrne,
There are two key problems with the Second Circuit’s approach that our court adopts today. First, it conflates the “adverse-action” element of a retaliation claim and the “pursuant-to-official-duties” test. Subtly, the Jackler rule allows concern for what happened to a particular plaintiff to color the threshold question about job duties. See Bowie,
Second, Jackler’s holding subverts Gar-cetti by not applying the Court’s categorical rule that the protected-status inquiry hinges on job duties, and job duties alone. Jackler involved a police officer who witnessed his sergeant lose his temper and unjustifiably strike an arrestee.
In dismissing his claim under Garcetti, the district court determined that it was “clear on the facts as alleged by Jackler that he refused to withdraw or alter his truthful report in the belief that the proper execution of his duties as a police officer required no less.” Id. at 233. The Second Circuit did not disagree that as a “police officer [he certainly] ha[d] a duty not to substitute a falsehood for the truth.” Id. at 241. But then, instead of applying “Garcetti’s employee-versus-eitizen rule,” the Second Circuit “created a significant exception to it.” Caroline A. Flynn, Note, Policeman, Citizen, or Both? A Civilian Analogue Exception to Garcetti v. Ceballos, 111 Mich. L.Rev. 759, 775 (2013).
Today’s en banc court simply borrows Jackler without discussing its rationale; but as the D.C. Circuit has explained, that case is indefensible. The Second Circuit reasoned that Officer “Jackler’s refusal to comply with orders to retract his truthful Report and file one that was false has a civilian analogue and that Jackler [thus] was not simply doing his job in refusing to obey those orders from the department’s top administrative officers and the chief of police.” Jackler,
I would therefore adopt neither the majority’s “contrary-to-orders” maxim nor its rule about “disclosures outside the chain of command.”
Remaining now is the application of the foregoing framework to Dahlia’s complaint.
A
1
As for Dahlia’s report to Internal Affairs (“IA”), the majority states “[i]t is possible that Dahlia’s professional duties required him to meet with IA at IA’s insistence, but it is also plausible that Dahlia’s act of meeting with IA was outside his job duties for the purpose of the First Amendment.” Maj. Op. 1077. Under the Supreme Court’s Twombly and Iqbal precedents, it is plaintiffs responsibility to show that his speech qualifies for constitutional protection. See Iqbal,
Dahlia’s complaint alleges that IA initiated an investigation and came to interview him three times. Compl. ¶ 36. Dahlia does not say he sought out IA, nor does he claim that he was free either to stay silent when asked about the corruption he had witnessed, or to lie about it. Given the inherent implausibility of that scenario,
2
Dahlia’s allegations about his “speech” to the County Sheriffs Department are similarly threadbare. The majority concludes that the protected status of his speech likely turns on “whether discovery reveals that Dahlia’s supervisors instructed him to meet with and disclose information to the [sheriff].” Maj. Op. at 1078. Such construction of “pursuant to official duties” is woefully cramped. See, e.g., Foley,
Without the majority’s errant gloss, Dahlia’s allegations fall short. His complaint refers to no facts that suggest, let alone plausibly suggest, that in cooperating with the sheriffs investigation of corruption in the Burbank Police Department he was not “discharging the responsibilities of [his] office, [but instead] appearing as “[John] Q. Public.” ” Tamayo,
B
In our circuit, though, Dahlia still would have one more chance to pursue his claim. Although the odds are long, Dahlia could conceivably satisfy the pleading standard as to the protected status of his speech by adding particular allegations about the nature of his crime-reporting duty at the Burbank Police Department. In my view, he would be entitled to be granted leave to amend his complaint, and it is on that narrow basis that I would reverse the judgment dismissing his complaint. See Lopez v. Smith,
V
The malfeasance by officers of the Burbank Police Department which Dahlia witnessed and the threats and intimidation he endured — if true — are shocking and intolerable. Yet we must stay our collective hand, ever mindful that the “Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem.” Plyler v. Doe,
While I narrowly concur in the judgment, I must respectfully dissent from the court’s erroneous analysis of the First Amendment in this case.
. The lack of a constitutional action may sometimes be for the best, as this "complicated employment law issue ... is much better suited for a legislative solution.” John Q. Mulligan, Note, Huppert, Reily, and the Increasing Futility of Relying on the First Amendment to Protect Employee Speech, 19 Wm. & Mary. Bill Rts. J. 449, 456 (2010). Many questions arise, such as "what types of complaints should be protected, whether internal or external whistleblowing should be protected, and what types of employer responses should be punished." Id. at 468.
. The dissenters in Garcetti, as well the academic literature since, recognize the bright-line nature of the inquiry. See, e.g., Garcetti,
. The second point the Court made is that the Garcetti analysis should not uncritically be applied when academic freedom is involved. See
. California law, in fact, suggests just the opposite. In one case, an Alhambra Police Department Officer who had sexually harassed a motorist went to his union representative for help in dealing with the Los Angeles Sheriff's Department investigation into his misconduct. Alhambra Police Officers Ass’n v. City of Alhambra Police Dep’t,
. See Dahlia v. Rodriguez,
. An officer might do that by describing his employment contract, a collective bargaining agreement, or a (formal or informal) policy limiting his disclosure obligations.
. Simply put, "[t]here is nothing startling in the conception that a public servant’s right to retain his office or employment should depend upon his willingness to forego his constitutional rights and privileges to the extent that the exercise of such rights and privileges may be inconsistent with the performance of the duties of his office or employment.” Christal,
. See supra note 7 and accompanying text.
. I would not adopt the majority’s second principle concerning the "subject matter” of speech for the same reason. Maj. Op. at 1074-75. A police officer is not "an average public .employee.” Id.
. Although the academic literature — some of which has been cited in the briefs — has urged us to do otherwise, our duty is to apply Supreme Court precedent fairly rather than whittle it away in a case with sympathetic facts. See, e.g., Turner, supra, at 64 ("While lower courts are of course not free to ignore Garcetti, they are free to — and should — take a narrow view of what constitutes an employee's ‘official duties.' ”); id. at 63 ("Of course, the fundamental problem may be with Garcet-ti itself rather than Huppert.”); Flynn, supra, at 772 (although disposed to the dissenting view as a policy matter, conceding, "in agreement with the D.C. Circuit, that the Second Circuit misapplied Garcetti in Jackler: a civilian analogue exception does not follow from either the language or the logic of that decision”).
. See, e.g., Jackler,
. Because our court is admonished not to manufacture arguments for parties, unlike the majority, I would not consider Dahlia’s report to the Burbank Police Officers' Association as an alternative form of protected speech. See