The Plaintiff worked as a police officer for the SWAT team at the City of Eugene. ?Over a ?number ?of ?years ?he ?reported ?safety? issues related to accidently discharged firearms.?? In an effort to make his growing safety concerns ?as public as possible,? Hagen sent an e-mail on May?23, 2007, to a number of sergeants with K-9 and SWAT team experience, inviting them to a meeting at city hall to discuss ?safety issues related to our close working relationship with the SWAT team.? ?Most of these issues,? the e-mail explained, ?surround the recent accidental discharges and how [the K-9 and SWAT] teams could be better equipped or trained to function more safely together.??? Three days later SWAT team? ?operations? ?were? ?suspended? ?pending?? a review. ?Plaintiff continued to express his safety related concerns.?? ?Thereafter, Plaintiff was transferred out of the SWAT team because he was ?the spokesman for the majority of the complaints,? had a low activity level, and ?repeatedly engaged in passive insubordination.??This transfer was almost immediately rescinded by the Chief of Police and almost immediately thereafter his supervisor began writing up the Plaintiff for unrelated reasons that were previously not creating a problem.?? More negative evaluations followed, and he was again transferred out of the unit.?Plaintiff sued the Chief of Police and his supervision alleging a violation of 42 U.S.C. Section 1983; that he was transferred in violation?of his First Amendment rights.?? ?He sought individual? liability and ?municipal? liability.?? ?The Defendants moved for summary judgment, which was denied.?? A jury decided in favor of Plaintiff and ?awarded ?$50,000 ?in ?compensatory? damages and ?$200,000 ?in ?punitive? damages.???? ?The Defendants? ?appealed? ?and? ?the?? Ninth? ?Circuit reversed.?The Ninth Circuit ruled that whether Plaintiff was speaking as a private citizen was a mixed question of law and fact.?? Citing Posey v. Lake ?Pend ?Oreille ?Sch. ?Dist. ?No. ?84, ?546 ?F.3d?1121, 1129 (9th Cir. 2008).?? ?Statements do not lose First Amendment protection simply because they concern ?the subject matter of [the plaintiff?s] employment.? ?Freitag, ?468 ?F.3d ?at ?545.??? ?But??speech which owes its existence to an employee?s professional responsibilities is not protected by the First Amendment.?? ??Generally, ?in a highly hierarchical employment setting such as law enforcement,? when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job, . . ..? ??If, on the other hand, ?a public employee takes his job concerns to persons outside the work place in ?addition ?to ?raising ?them ?up ?the? chain ?of command at his workplace, then those external communications are ordinarily not made as an employee, ?but ?as ?a? citizen.?????? ?Neither considerations, however, are dispositive and the nature of the inquiry is ?fact-intensive,? and? ?no single formulation of factors can encompass the full set of inquiries relevant to determining the scope of a plaintiff?s job duties.??The Court ruled that, as a matter of law, Plaintiff?s concerns about SWAT safety were inextricably intertwined with his duties as a K-9 officer.?? The trial court erred when it denied the Defendants? Motion of Judgment as a matter of law.
Hagen v. City of Eugene, 736 F.3d 1251 (Dec. 3,?2013) (Alarcon, M.D. Smith, Hurwititz)