Case Information
*4
CLIFTON, Circuit Judge:
The First Amendment of the Constitution protects citizens from attempts by government officials to chill their speech. One question presented by this case is whether that same constitutional guarantee also requires those officials to remain silent when accused of misconduct, lest they risk liability for unlawful retaliation. We conclude that it does not.
Plaintiff Brian Mulligan was injured in an altercation with two Los Angeles Police Department (LAPD) officers. Mulligan filed an administrative сlaim against the City of Los Angeles, alleging that the officers had acted unlawfully. The police officers’ union, the Los Angeles Police Protective League (LAPPL), allegedly with assistance from City officials, responded by accusing Mulligan of being a drug abuser and of having acted aggressively toward the officers. Because he was a prominent business executive connected with the entertainment industry, the episode attracted publicity, and Mulligan lost his job.
Mulligan brought 42 U.S.C. § 1983 and state-law claims against the City, LAPD officers James Nichols and John Miller, the LAPPL, and LAPPL officials Tyler Izen and Eric Rose. He presented claims based both on his initial interactions with the LAPD officers and on the subsequent *5 6 M ULLIGAN V . N ICHOLS publicity, which Mulligan contended constituted unlawful retaliation against him for exercising his First Amendment rights.
The district court granted summary judgment in favor of Defendants on the unlawful retaliation claim and on Mulligan’s claim that the LAPD officers acted negligently. Mulligan’s other claims proceeded to trial, and the jury found in favor of Defendants on all issues that were before it. Judgment was entered for Defendants. Mulligan appeals on several grounds. We affirm.
I. Background
The events behind this lawsuit began on May 15, 2012. The parties intensely dispute what happened that night, but they agree that LAPD officers Nichols and Miller first encountered Mulligan near the entrance to Occidental College in the Eagle Rock area of Los Angeles. The officers responded to 911 calls reporting that a man fitting Mulligan’s description was acting erratically. After taking Mulligan back to his car in a nearby street, the officers transported and checked Mulligan into a motel.
Mulligan left the motel later that night. On the streets near the motel, he once again encountered Officers Nichols and Miller. The parties’ accounts as to what happened next were very different. Mulligan testified that he tried to flee from the The precise reаson why the officers took Mulligan to the motel is one of the facts about which the parties disagree. Mulligan asserts that he was taken to the motel against his will. The officers testified at trial that Mulligan, who appeared disoriented, asked them to take him to the motel to “sleep it off.”
officers as soon as he caught sight of them. The officers followed, chasing him and blocking his escape. They then hit him in the face with a baton, jabbed his back, and slammed his faсe into the asphalt.
The officers testified, in contrast, that they found Mulligan running down a street near the motel while screaming and attempting to open locked cars. They then *6 pursued Mulligan, who continued fleeing despite their repeated calls for him to stop. Mulligan then began charging at the officers, forcing Miller to use his baton to subdue him. With the help of a third officer, they managed to handcuff Mulligan and called an ambulance to take him to a hospital.
The incident and Mulligan’s subsequent administrative claim against the City attracted significant media attention. Mulligan was at the time an executive with Deutsche Bank and had formerly been chairman of Fox Television and co- chairman of Universal Pictures. The officers’ police report was leaked to news outlets, which published stories that included the allegation that Mulligan was under the influence of drugs at the time of the incident. The media pressure intensified on Octоber 15, 2012, when the LAPPL issued a press release accusing Mulligan of being a frequent user of bath salts. [2] The press release included a leaked tape of a conversation between Mulligan and an officer of the Glendale Police Department that took place on May 13, two days “Bath salts” is the popular term for a type of synthetic stimulant with similar effects to amphetamines and cocaine. Drug Enforcement Agency, Bath Salts or Designer Cathinоnes (Synthetic Stimulants ), http://www.dea.gov/druginfo/drug_data_sheets/Bath_Salts.pdf (last visited, August 22, 2016) (available at https://perma.cc/9MVH-V5XM). Bath salts have serious side effects, including agitation, insomnia, paranoia, delusions, and panic attacks. Id.
before the Eagle Rock incident. In the conversation, Mulligan admitted to having used bath salts approximately twenty times. Because of the press release and associated negative media coverage, Mulligan lost his job at Deutsche Bank.
Mulligan filed his complaint in federal district court against the City, Officers Nichols and Miller, the LAPPL, and Tyler Izen, the LAPPL’s president, in February 2013. He alleged that the City, LAPPL, and Izen had retaliated against him for exercising his First Amendment right to file an administrative claim against the City. He also alleged excessive force claims under both Section 1983 and California law, as well as state-law assault and battery, false imprisonment, police negligence, and negligent supervision claims аgainst the officers and the City. A separate complaint alleging a substantively identical retaliation claim against Eric Rose, the LAPPL’s publicist, was filed in November 2013.
Defendants filed motions for summary judgment. The district court granted summary judgment to Defendants on the *7 retaliation claim, concluding that Mulligan had not demonstrated the existence of retaliatory intent. [3] The district court also granted summary judgment for Defendants on the false imprisonment and police negligencе claims. Summary judgment was denied on the negligent supervision, excessive force, and assault and battery claims.
[3] The complaint against Rose was assigned to a different district judge, who dismissed that claim based on issue preclusion following the entry of summary judgment on the retaliation claim in the first action. The dismissal of the complaint against Rose is also challenged in this appeal. The court bifurcated the trial, such that the first phase would cover the excessive force claim, while the second phase would cover the negligent supervision claim and damages. As noted above, the jury found in favor of Defendants in the first phase of the trial, which the district court concluded made the second phase unnecessary.
Mulligan presents several arguments on appeal. First, he contests the district court’s grant of summary judgment in favor of Defendants on his First Amendment retaliation claim. Second, he argues that the district сourt erred in granting summary judgment to Defendants on his claim that the officers’ use of force against him was negligent. Third, he challenges two of the district court’s evidentiary rulings during the excessive force phase of the trial. Finally, he contends that the district court erred in not proceeding to the second phase of the trial, involving his negligent supervision claim.
II. First Amendment Retaliation Claim
Mulligan alleges that the City, LAPPL, Izen, and Rose retaliated against him for the exercise of his First Amendment rights, in violation of 42 U.S.C. § 1983. Mulligan сontends that the accusations by the LAPPL that he was a regular user of bath salts, along with the accompanying media leaks of the Mulligan’s appeal of the dismissal of his action against Rose rests entirely on his contention that summary judgment should not have been entered against him on the retaliation claim in the first lawsuit. He does not dispute the application of issue preclusion in the second lawsuit if the summary judgment was proper. Because we hold that the summary judgment was properly granted, we also hold that Mulligan’s separate retaliation suit against Rose was properly dismissed. We will not discuss *8 the action against Rose separately. M ULLIGAN V . N ICHOLS
police report of the incident and the tape of his conversation at the Glendale Police Department, in which he admitted to his past bath salts use, constituted a smear campaign meant to deter him from proceeding with his legal claim against the officers and City. He also alleges that the City activеly participated in that campaign, making the LAPPL and its officials joint state actors. We conclude that the facts alleged by Mulligan do not give rise to a cognizable claim of First Amendment retaliation.
To state a claim for First Amendment retaliation against
a government official, a plaintiff must demonstrate that
“(1) he engaged in constitutionally protected activity; (2) as
a result, he was subjected to adverse action by the defendant
that would chill a person of ordinary firmness from
continuing to engage in the protected activity; and (3) there
was a substantial causal relationship between
the
constitutionally protected activity and the adverse action.”
Blair v. Bethel Sch. Dist.
,
Ordinarily, the adverse retaliatory actions complained of by plaintiffs are “‘exercise[s] of governmental power’ that are ‘rеgulatory, proscriptive, or compulsory in nature’ and have the effect of punishing someone for his or her speech.” Id. at 544 (alteration in original) (quoting Laird v. Tatum , 408 U.S. 1, 11 (1972)). But that is not the situation here. Instead, the essence of Mulligan’s claim is that the City and LAPPL chilled his right to speak freely by engaging in speech of their own that significantly damaged his reputation and ultimately caused him to lose his job.
*9
Retaliation claims involving government speech warrant
a cautious approach by courts. Restricting the аbility of
government decisionmakers to engage in speech risks
interfering with their ability to effectively perform their
duties. It also ignores the competing First Amendment rights
of the officials themselves. The First Amendment is intended
to “preserve an uninhibited marketplace of ideas in which
truth will ultimately prevail.”
McCullen v. Coakley
, 134 S. Ct.
2518, 2529 (2014) (quoting
FCC v. League of Women Voters
of Cal.
,
In accordance with these principles, we have set a high
bar when analyzing whether speech by government officials
is sufficiently adverse to give rise to a First Amendment
retaliation claim. In
Gini v. Las Vegas Metropolitan Police
Department
, 40 F.3d 1041, 1043–44 (9th Cir. 1994), the
plaintiff alleged that she had lost her federal job as a result of
allegedly defamatory statements made by a city policе officer
to her federal superiors following her filing of an Internal
Affairs complaint. We affirmed the dismissal of her
retaliation claim against the city.
Id.
at 1045. We noted that
an act of defamation by government officials was insufficient
to create a right to a remedy under the First Amendment in
the absence of “state action affecting [a plaintiff’s] rights,
benefits, relationship or status with the state.”
Id.
Similarly,
in
Nunez v. City of Los Angeles
,
As was the case in
Gini
and
Nunez
, the accusations and
media leaks by the LAPPL and its leadership are not enough
to demonstrate a constitutional violation. The Defendants in
this case did not “make any decision or take any state action
affecting [Mulligan’s] rights, benefits, relationship or status
with the state.”
Gini
,
We note that we do not understand
Gini
and
Nunez
to stand for the
proposition that speech by government officials can
never
give rise to a
claim of First Amendment retaliation in the absence of a loss of tangible
rights or government benefits.
See Coszalter v. City of Salem
, 320 F.3d
968, 975–76 (9th Cir. 2003) (stating that
Nunez
does not create “an
exclusive, category-based limitation on the kind of retaliatory action that
is actionable under the First Amendment,” nor does it mean that “the
government is allowed to take severe retaliatory actions . . . because those
actions do not result in the loss of a valuable gоvernmental benefit or
privilege”). Indeed, we recognize that “[i]nformal measures, such as ‘the
threat of invoking legal sanctions and other means of coercion, persuasion,
and intimidation,’ can violate the First Amendment also.”
White v. Lee
,
227 F.3d 1214, 1228 (9th Cir. 2000) (quoting
Bantam Books, Inc. v.
Sullivan
,
Our decision in
Mendocino Environmental Center v.
Mendocino County
,
The approach we take here and have taken in the past is
consistent with the views of other circuits. The circuit courts
that have considered the issue have requirеd plaintiffs
alleging government retaliation that takes the form of speech
to meet a high threshold. For example, the Fourth Circuit has
held that in situations “where a public official’s alleged
retaliation is in the nature of speech,” a citizen’s First
Amendment rights are not violated “in the absence of a threat,
coercion, or intimidation intimating that punishment,
sanction, or adverse regulatory action will imminently
follow.”
Suarez Corp. Indus. v. McGraw
,
Mulligan аrgues that the emphasis we and other courts have placed on defendants’ free speech rights is mistaken because, in his view, public officials do not possess any First Amendment rights worthy of protection. We disagree. That viewpoint would cripple the ability of state actors to play a part in public discourse. It is well established that public employees and officials retain rights to free speech. See, e.g. Garcetti v. Ceballos , 547 U.S. 410, 417 (2006) (“[P]ublic employees do not surrender all their First Amendment rights by reason of their employment.”); Blair , 608 F.3d at 545 (“[W]e assume all of the Board members have a protected interest in speaking out and voting their conscience on the important issues they confront.” (emphasis in original)).
Mulligan also directs our attention to the decision of the
Sixth Circuit in
Bloch v. Ribar
,
The City and LAPPL also argue in their briefs that summary judgment was proper for the reason that Mulligan’s claim solely involves the conduct of the LAPPL, a private actor, and is therefore not actionable under Section 1983. The City separately argues that even if the LAPPL and its officers unlawfully retaliated against Mulligan, the City itself could
M ULLIGAN V . N ICHOLS III. Police Negligence Claim
Mulligan next contends that the district court erred in
granting summary judgment to Defendants on his state-law
claim that Officers Nichols and Miller acted negligently in
their use of force against him. In light of the jury verdict in
favor of the officers at trial, Mulligan does not argue that the
officers’ use of fоrce was itself negligent, but he asserts that
the officers’ conduct prior to the specific acts that involved
force violated California law. We review the district court’s
grant of summary judgment de novo.
Hawn v. Exec. Jet
Mgmt., Inc.
,
Under California law, negligence liability “can arise if the
tactical conduct and decisions leading up to the use of deadly
force [by law enforcement] show, as part of the totality of
circumstances,
that
the use of deadly force was
unreasonable.”
Hayes v. Cty. of San Diego
,
Mulligan asserts that the officers’ decision to take him to
the motel against his will was sufficient to create a triable
not be held responsible under the rules established in
Monell v.
Department of Social Services of New York
,
The causal relationship in this case between the allegedly negligent pre-force conduct and the later use of force is far more attenuated. The events at the motel took place significantly earlier in time and in a different location than the later altercation between Mulligan and the officers. California law does not support the existence of negligence liability in these circumstances. We therefore affirm the district court’s grant of summary judgment.
The California Supreme Court did not address whether decisions
before non-deadly force can be actionable negligence, but addressed this
issue only in the context of “deadly force.”
See, e.g. Hayes
,
Mulligan challenges the district court’s exclusion of two pieces of evidence during the trial of his excessive force claims. A district court’s evidentiary rulings are reviewed for abuse of discretion. McEuin v. Crown Equip. Corp. , 328 F.3d 1028, 1032 (9th Cir. 2003). We conclude that the district court did not abuse its discretion in excluding the contested evidence.
Mulligan first argues that the district court erred in excluding evidence that he was not ultimately charged with any crime for his conduct on the night of the incident. The evidence was excluded as irrelevant. In Mulligan’s view, the evidence was relevant in that it contradicted the officers’ allegations that Mulligan had been acting violently and had been attempting to break into locked cars before he was *14 detained. The district court did not abuse its discretion under the circumstances. Even assuming that there was some marginal relevance to the evidence, it was properly excluded under Rule 403 because “its probative value [was] substantially outweighed by a danger of . . . confusing the issues, misleading the jury, [or] undue delay.” Fed. R. Evid. 403. Any probative value here was minimal given that many factors inform a prosecutor’s decision to press charges other than whether the events being investigated actually occurred. A contrary approach might motivate a prosecutor to pursue a criminal charge simply to avoid an inference to that effect. Moreover, any probative value was outweighed by the possibilities that a jury unfamiliar with prosecution practices may have been confused as to the significance of the lack of charges against Mulligan or that substantial trial time might have been taken up by a digression into the prosecutor’s decision-making process.
Mulligan also contends that the district court erroneously excluded evidence that Officer Nichols had previously been accused of on-duty sexual assault. It was not an abuse of discretion for the district court to exclude that evidence, either. The allegations against Nichols had nothing to do with the excessive force claim at issue in the trial. Evidence of prior bad acts is not admissible except to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or laсk of accident.” Fed. R. Evid. 404(b)(2). The accusations that Nichols had sexually assaulted vulnerable women involved conduct distinct from the excessive force allegations at issue in Mulligan’s case. V. Negligent Supervision Claim
Mulligan finally argues that the district court erred in not proceeding to trial on his negligent supervision claim against the City. The district court acted properly in not proceeding to the second phase of the trial. Once the jury had found that the officers did not act unlawfully, there was no basis for a claim against the City that those officers had been negligently supervised.
Mulligan has filed a motion for judicial notice of a felony complaint against Officer Nichols arising from the same conduct that was the subject *15 of the sexual assault allegations. The complaint was filed on February 16, 2016, more than two years after the trial concluded. It could not have been considered by the district court at the time it made its evidentiary determinations, so we deny the motion. We do not have reason to consider whether the fact of a felony complaint filed prior to trial would have been admissible.
VI. Conclusion
We affirm the judgments of the district court. The statements allegedly made against Mulligan as joint state actions by the LAPPL were not sufficiently adverse to support a claim of First Amendment retaliation. Consequently, the district court’s grant of summary judgment for that claim was proper. Similarly, the district court did not err in its decisions regarding Mulligan’s police negligence, excessive force, and negligent supervision claims.
AFFIRMED.