Writing for the panel, Judge Kim McLane Wardlaw said the appellate court had “significant reservations about the holding in Huppert, which chills the speech of potential whistle-blowers in a culture that is already protective of its own.”
Huppert's reasoning “that professional duties can be determined as a matter of law is wrong, and the result that reports of police misconduct are not protected by the 1st Amendment is dangerous.”
Still, Wardlaw wrote they, like the district court, felt compelled to follow the Huppert decision, but did not elaborate why.
Dahlia's attorney, Russell Perry, declined to comment on the decision.
In the Dahlia case, the district court ruled under the Huppert decision that he was not protected by the 1st Amendment when he came forward with the use-of-force allegations because he had an official duty to report the illegal conduct.
Burbank City Atty. Amy Albano described the appellate court's decision to uphold the ruling as “a win for the city.”
In May 2009, the Los Angeles County Sheriff's Department interviewed Dahlia during a police misconduct investigation into a 2007 robbery at Porto's Bakery in Burbank.
During that interview, Dahlia, who was the on-call detective, alleged he disclosed police misconduct and improper use of force that he witnessed during the robbery investigation.
Wardlaw wrote that under the Huppert decision, “Dahlia's disclosure to the Los Angeles Sheriff's Department was made in the course of his official duties, and thus falls outside the protection offered by the 1st Amendment.”
Dahlia said he witnessed a lieutenant place the barrel of his gun under a suspect's eye and threaten him.
After reporting the incident, Dahlia, a 20-year veteran, claimed a rogue group of officers harassed and intimidated him in an attempt to keep him silent.
As a result of talking, Dahlia also alleged, the Police Department placed him on administrative leave.
He later filed a civil rights lawsuit in U.S. District Court alleging that he was retaliated against for speaking out about the misconduct, and that officers harassed and intimidated him, at one point brandishing a gun.
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