Burbank PD may be liable in suit by cop who alleged misconduct

SAN FRANCISCO -- A former Burbank police detective who was placed on administrative leave after reporting that fellow officers beat and threatened suspects may pursue a 1st Amendment retaliation lawsuit against several Burbank officers and the city, a federal appeals court decided Wednesday.

An 11-judge panel of the U.S. 9th Circuit Court of Appeals revived the suit by Angelo Dahlia, a detective who charged that he was put on leave after he told the Los Angeles County Sheriff’s Department about alleged misconduct in the Burbank department.

A lower court threw out Dahlia’s suit on the grounds that he reported the misconduct as part of his official duties, not as a private citizen expressing free speech, and that administrative leave did not constitute punishment.

A three-judge 9th Circuit panel reluctantly agreed, declaring it was bound by a 2009 precedent.

But the larger panel overturned that precedent and decided that police officers, in some instances, may receive 1st Amendment protection when they disclose misconduct. The court also said that forced leave could be considered punitive.

“It is relevant to the resolution of Dahlia’s case that Dahlia disclosed misconduct to LASD in contravention of the numerous threats and admonitions from his superiors not to reveal the misconduct to anyone,” wrote Judge Richard A. Paez, a Clinton appointee. “Even assuming arguendo that Dahlia might normally be required to disclose misconduct pursuant to his job duties, here he defied, rather than followed, his supervisors’ orders.”

Dahlia alleged that he witnessed other officers physically abuse suspects who were taken into custody during a high-profile robbery probe that began in late 2007. He said he saw a lieutenant grab a suspect by the throat, put a gun under his eye and threaten him.

Dahlia also reported that he heard yelling and the sound of somebody being hit and slapped from a room where a sergeant was interviewing a suspect.

When Dahlia reported what he had allegedly witnessed to a superior, the officer told him to stop his “sniveling,” he said.

“The physical beatings continued in BPD interview rooms and in the field, evidenced by the booking photos of various suspects,” the court said.

The panel’s decision to revive the lawsuit was unanimous, but two judges disagreed that Dahlia had presented a valid claim for 1st Amendment retaliation and agreed only that he should be permitted to amend his suit.

“Federal courts have no business managing the daily activities of police departments,” wrote Judge Diarmuid F. O’Scannlain, joined by Judge Alex Kozinski, both Reagan appointees.

“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,” O’Scannlain wrote. “Yet we must stay our collective hand.”

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