Huppert v. City of Pittsburg: the contested status of police officers' subpoenaed testimony after Garcetti v. Ceballos.

• Author: Pope, Leslie

Over forty years ago, Picketing v. Board of Education established that the speech of government employees who address a matter of public concern may be protected under the First Amendment/ In 2006, the Supreme Court significantly reduced the scope of that protection with its holding in Garcetti v. Ceballos that a government employee is not insulated from employer discipline for statements made pursuant to his official duties. (2) After Garcetti, the lower courts have had to determine, as a threshold inquiry, whether government employees who seek the protection of the First Amendment spoke as employees or as citizens. (3)

The Ninth Circuit's recent decision in Huppert v. City of Pittsburg has created a circuit split as to whether a police officer who testifies truthfully regarding information learned on the job in response to a subpoena speaks as a citizen or as an employee. (4) In the immediate aftermath of Garcetti, the Third and Seventh Circuits each held that a police officer who testifies truthfully in response to a subpoena about information learned on the job speaks as a citizen and, therefore, his testimony is protected under the First Amendment. (5) In Huppert, the Ninth Circuit rejected the reasoning of its sister circuits and held that such an officer speaks as an employee. The underlying disagreement among the courts of appeals is whether a police officer who testifies truthfully does so pursuant to the duty every citizen has to provide truthful testimony (6) or pursuant to an overlapping duty police officers have in virtue of their employment as police officers.

Judge William Fletcher's dissenting opinion in Huppert invites a narrow holding not adopted by any circuit: classify a government employee's testimony as the speech of a citizen when the employee's subpoenaed testimony bears on a fellow employee's corruption. This Comment argues that this subset of testimony should be eligible for First Amendment protection under Garcetti. Part I reviews the majority and dissenting opinions in Huppert and criticizes these opinions for failing to grapple with the possibility that police officers may have a duty to give testimony in response to a subpoena both in virtue of their citizenship and in virtue of their employment as police officers. Part II argues that, under Garcetti's distinction between citizen and employee speech, testimony should be classified as citizen speech. Part III recognizes that the "purpose of Garcetti was to allow government employers greater influence over speech that owes [its] existence to a public employee's professional responsibilities and that is damaging to the government's capacity to conduct public business" (7) and argues that a government employer's interest in controlling employee speech is at its lowest ebb when employees give truthful testimony that sheds light on the corruption of colleagues in response to a subpoena.

1. HUPPERT V. CITY OF PITTSBURG

   In 2004, Ron Huppert, a thirteen-year veteran of the Pittsburg, California Police Department (PPD) was subpoenaed to testify before a grand jury investigating corruption within the PPD. Although an FBI Agent working on the case assured Huppert that his actions in connection with the investigation "were as an individual and not in [his] capacity as a member of the PPD," (8) the fact of Huppert's testimony was well known within the PPD. The Chief of Police for the PPD "told [Huppert] he knew [Huppert] had testified before the grand jury." (9) Sometime after Huppert testified before the grand jury, he was transferred from gang crime to frauds and forgeries, a less desirable assignment. Huppert's new supervisor instituted a policy requiring Huppert to write a report to close every case, criticized Huppert for minor errors, refused to allow Huppert to wear an outdated badge although other officers were permitted to do so, joked about firing Huppert, and removed a positive yearly evaluation from Huppert's file. Huppert brought a [section] 1983 suit alleging that the police department had violated his First Amendment rights by retaliating against him in response to his grand jury testimony. The district court held that because Huppert's grand jury testimony was the speech of an employee and, therefore, not protected by the First Amendment under Garcetti, he had no [section] 1983 claim. The Ninth Circuit affirmed.

   1. Judge Tallman's Majority Opinion

      The Ninth Circuit, in an opinion by Judge Tallman, held that Huppert's grand jury testimony was the speech of an employee because Huppert had a duty, as a police officer, to testify in front of a grand jury investigating crime. (10) To support the proposition that such a duty exists, Judge Tallman cited an "oft-quoted passage" (11) from a 1939 California Court of Appeal opinion, Christal v. Police Commission of City and County of San Francisco, (12) that includes among the duties of a police officer the duty to "testify freely" about incriminating facts in front of a grand jury investigating crime. (13) Reasoning from the premise that Huppert's employment as a police officer generated a duty to testify in front of the grand jury, Judge Tallman concluded that "any speech Huppert gave during his grand jury testimony was 'pursuant to his duties as a police officer'" and, therefore, not protected by the First Amendment. (14)

      Judge Tallman explicitly rejected the Third Circuit's approach in Reilly v. City of Atlantic City. (15) In Reilly, an Atlantic City police officer testified against another police officer accused of running a prostitution ring. Because the substance of the officer's testimony was learned on the job, the question presented by Reilly was "whether truthful trial testimony arising out of [an] employee's official responsibilities constitutes protected speech." (16) The Third Circuit held that because offering truthful testimony at trial is the responsibility of every citizen, a government employee who testifies "is not simply performing his or her job duties; rather, [he or she] is acting as a citizen." (17) In other words, if a government employee has both a duty as an employee and a duty as a citizen to give truthful testimony, his testimony will be citizen speech under Reilly. Judge Tallman argued that the Third Circuit's decision to classify all truthful testimony as citizen speech, regardless of whether the testimony arose out of the witness's job duties, is incompatible with Garcetti, which "drew a distinct line between speech pursuant to one's job duties and speech in a private capacity." (18) He accused the Reilly court of "chipping away at the plain holding" of Garcetti. (19) He failed to acknowledge or engage with the question of whether citizenship gives rise to a duty to give truthful testimony and, if so, whether a police officer can ever give testimony in a criminal case pursuant to that duty.

      Judge Tallman sought to...