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Ninth Circuit Holds that Police Officers’ Reports and Investigation-Related Statements Were Outside the Scope of First Amendment Protections

Oakland, CA – Today, the Ninth Circuit Court of Appeals ruled that a lower court properly dismissed two former police officers’ claims that the City of Pittsburg and supervising police officials violated their First Amendment rights after the former officers reported and participated in investigations of various instances of alleged corruption within City departments.

In today’s decision, the court held that the former officers spoke as police officers, not citizens, and therefore their speech could not form the basis of a First Amendment claim. Meyers Nave principal and certified appellate specialist Joseph M. Quinn argued the case for the City and the supervising officers.

Ron Huppert became a Pittsburg police officer in 1991 and eventually became an inspector. Javier Salgado became a Pittsburg police officer in 1995 and eventually became a sergeant. Huppert claimed that he was exercising his free speech rights when, during his tenure, he assisted the district attorney in an investigation into corruption at the Pittsburg Police Department, when he reported corruption at a municipal golf course, when he cooperated with the FBI in an investigation into the police department and when he testified before a civil grand jury regarding potential corruption within the department. Salgado claimed that he, too, was exercising his free speech rights when he reported corruption at a municipal golf course. Both claimed that the City and police officials punished them for their speech activity with undesirable assignments, demotion and—in Salgado’s case—eventual firing.

Huppert and Salgado filed a federal civil rights lawsuit in the United States District Court for the Northern District of California, based in San Francisco. The City and the officials argued that Huppert’s and Salgado’s reports and statements did not amount to protected speech activity and, even if they did, there was no evidence demonstrating that the reports and statements motivated the adverse employment actions. United States Magistrate Judge James Larson agreed with the City and the officials on the first issue and ruled that Huppert and Salgado spoke as police officers, not citizens. Accordingly, the reports and statements could not form the basis of a First Amendment retaliation claim. Magistrate Judge Larson did not rule on whether Huppert and Salgado presented sufficient evidence that the adverse employment actions were actually caused by the reports and statements.

Huppert and Salgado appealed. Today, a divided three-judge panel issued its decision affirming Magistrate Judge Larson’s judgment. Writing for the majority, Ninth Circuit judge Richard C. Tallman observed that United States Supreme Court precedent provides 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.” In applying the rule to a particular case, courts must balance plaintiffs’ interest as citizens “in commenting upon matters of public concern” and the government’s interest “in promoting the efficiency of the public service it performs through its employees.”

The majority held that, under this test, Huppert and Salgado made their reports and statements as police officers, not citizens. Accordingly, the claims were properly dismissed. The majority noted that its ruling does not leave public employees, including police officers, without recourse: “There exist other avenues of recourse available to protect an officer who exposes misconduct within the police department and is subsequently subject to retaliation. States, including California, have created ‘whistle-blower’ statutes for this exact purpose, and our holding today does not impact those statutes.” Joining the majority opinion was William O. Bertelsman, a Senior United States District Court Judge for the Eastern District of Kentucky.

Judge William A. Fletcher dissented. Judge Fletcher agreed with the majority on the legal standard but disagreed with the majority’s analysis. He would have concluded that the issue of whether Huppert and Salgado spoke pursuant to their job duties should have been submitted to a jury.

Quinn said he was pleased with the ruling, which comes in an area of First Amendment protections that have not yet been tried significantly on appeal. “The Supreme Court articulated the legal standard only a few years ago and left it to the appellate and trial courts to work out exactly how it applies to particular circumstances,” he said. “We believe the majority opinion accurately applied the standard and reached the right result.” 

About Meyers Nave

Founded in 1986, the law firm of Meyers Nave is recognized for its work with all types of public entities in California. The firm provides the full scope of legal services to cities, counties, redevelopment agencies and special districts statewide. Meyers Nave’s areas of practice include labor and employment, torts, redevelopment, city attorney and general counsel representations, eminent domain, litigation, writs and appeals, public contracts and land use, and environmental law. 


Jayne Williams
Managing Principal