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Free speech on trial: California cops have tough time pressing First Amendment claims

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in Employment Law,Human Resources

Public employees retain the right to free speech under the First Amendment and can’t be punished for exercising that right. However, the right is limited when the “speech” they’re using is part of their jobs.

For example, public employees whose work involves fighting corruption can’t claim that the memos and reports they write at work are free speech—the equivalent of a citizen speaking out on important public issues. Their writings are part of the job.

The 9th Circuit Court of Appeals has recently concluded that for California police officers, free speech protection may be even more limited.

Recent case: Ron Huppert and Javier Salgado both worked as police officers for the East Bay city of Pittsburg. Huppert temporarily worked for the Contra Costa County District Attorney’s Office, assisting with its investigation of alleged corruption. During that time, he claims, his Pittsburg Police Department supervisors treated him with scorn and as an outcast.

Later, Huppert helped the FBI on an investigation involving alleged police department corruption.

Eventually, the police department transferred him to an office converted from a tiny bathroom, a move he claimed was in retaliation for speaking out against corruption to the FBI and the district attorney.

Salgado was Huppert’s partner and worked with him on a report ordered by their supervisor on alleged illegal drug activity by other police officers. The supervisor then pulled them off the assignment, but another supervisor told them to complete their work. Salgado was transferred along with Huppert.

He also sued, alleging he—like his partner—had engaged in protected free speech and had been punished for doing so.

The 9th Circuit Court of Appeals rejected their claims. It concluded that each of the examples of free speech the officers cited involved aspects of their job responsibilities and were therefore not protected speech.

In addition, because California law says police officers’ official duties include preventing crime and assisting in its detection, any conversations with the FBI were job-related and not an exercise of free speech. (Huppert v. City of Pittsburg, No. 06-17362, 07-16600, 9th Cir., 2009)

Final note: The court noted that the police officers did have other remedies, including filing a whistle-blower suit against the police department alleging that they had been retaliated against for exposing wrongdoing.

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