Qualified Immunity Reversed Where Prosecutor Alleges Employment Retaliation for Disclosing Exculpatory Evidence

Cebellos, an Ass’t DA, sued L.A. County and his supervisors at the L.A. County DA’s office and under? 42? U.S.C.? ?? 1983? for? retaliating? against him for engaging in speech protected by the First Amendment.?? ?Cebellos? informed? his? superiors and notified the criminal defense attorney that he believed a police officer grossly misrepresented facts to obtain a search warrant.?? The defense attorney called Cebellos to testify at a hearing on a motion to suppress evidence which the court denied.? ?Afterwards, Cebellos alleges he was demoted, harassed, isolated, and denied a promotion.?? The trial court dismissed the action holding that his supervisors were entitled to qualified immunity and the County was entitled to sovereign immunity under the Eleventh Amendment.?? ?The Ninth Circuit reversed summary ?judgment ?holding ?that:???? (1) ?it ?was clearly? established? that? Cebello’s? speech addressed a matter of public concern and outweighed the public employer’s interest in avoiding inefficiency and disruption; and (2) a political subdivision — such as a county — is not ordinarily protected by the Eleventh Amendment and the DA, acting in his official capacity, is alleged to violate Cebellos’s rights through personnel?? decisions?? (a? ?county?? function)?? as opposed to prosecutorial decisions (a state function in California), for which the DA and the County would be absolutely immune. ?The Ninth Circuit noted that while the truth of Cebellos’s speech was a factor in the balancing test — especially given the denial of the suppression motion — the evidence showed that “at most” his statements were erroneous, not reckless or in bad faith.?? ?Cebellos v. Garcetti, No. 02-55418 (3/22/04; Reinhardt, O’Scannlain, Fisher).