In Ohlson v. Brady, published August 23, 2021, the 9th Circuit affirmed summary judgment in favor of the plaintiff’s supervisors in a 42 U.S.C. section 1983 lawsuit alleging First Amendment retaliation. The plaintiff was a forensic scientist employed by the state in an agency that analyzes blood samples for alcohol content. The plaintiff believed that the agency should make the results of all of the samples within a batch of samples available to criminal defendants, and suggested making the batch data public. His employers declined. Part of the plaintiff’s job duties was testifying in court. When examined by a defense attorney in court, the plaintiff testified about his disagreement with his superiors on this point. He was placed on administrative leave pending an investigation. The investigation resulted in a suspension, followed by the plaintiff’s retirement. The plaintiff filed suit alleging First Amendment retaliation for testifying in court and in advocating in the agency for a change in procedure. The district court ruled that the plaintiff had established a violation of his First Amendment rights but had failed to show that they were clearly established. The court granted the defendants summary judgment based on qualified immunity.
The 9th Circuit went over the complicated case law governing First Amendment retaliation claims by public employees. It disagreed that the plaintiff necessarily spoke as a private citizen (lending First Amendment protection to his speech) simply because he was speaking in defiance of orders. Although the Ninth Circuit had previously ruled that speaking outside the chain of command was an important factor in concluding an employee spoke as a private citizen, interpreting speech in defiance of orders as always being a strong indication of protected speech could lead to protecting employees defying legitimate orders aimed at deterring employee misconduct, incentivizing insubordination and making government administration more difficult. Instead, the balancing test requires weighing the interests of both sides. But previous case law had not clearly established whether an employee who testified as part of his job spoke as a public employee or private citizen when he gave testimony in violation of orders. Therefore, the supervisor defendants were entitled to qualified immunity to the retaliation claim arising out of court testimony. Regarding the internal advocacy retaliation claim, no authority established that constitutional right so clearly that any reasonable official in the defendant’s shoes would have understood they were violating that right. The plaintiff was therefore not able to show that the supervisors violated clearly established law with respect to this claim.
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