                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ANGELO DAHLIA,                          No. 10-55978
                 Plaintiff-Appellant,
                                           D.C. No.
                 v.                     2:09-cv-08453-
                                          MMM-JEM
OMAR RODRIGUEZ, individually and
as a Lieutenant of the Burbank
Police Department; EDGAR                  OPINION
PENARANDA, individually and as a
Sergeant of the Burbank Police
Department; CITY OF BURBANK, a
municipal corporation; JOHN
MURPHY, individually and as a
Lieutenant of the Burbank Police
Department,
               Defendants-Appellees,

                and

TIM STEHR, individually,
                           Defendant.


      Appeal from the United States District Court
         for the Central District of California
     Margaret M. Morrow, District Judge, Presiding

           Argued and Submitted En Banc
      March 20, 2013—San Francisco, California
2                     DAHLIA V. RODRIGUEZ

                      Filed August 21, 2013

 Before: Alex Kozinski, Chief Judge, and Harry Pregerson,
  Stephen Reinhardt, Diarmuid F. O’Scannlain, Susan P.
  Graber, Richard A. Paez, Marsha S. Berzon, Johnnie B.
  Rawlinson, Consuelo M. Callahan, Carlos T. Bea, and
            Milan D. Smith, Jr., Circuit Judges.

                   Opinion by Judge Paez;
               Concurrence by Judge Pregerson;
              Concurrence by Judge O’Scannlain


                           SUMMARY*


                            Civil Rights

    The en banc court reversed the district court’s Fed. R.
Civ. P. 12(b)(6) dismissal and remanded in an action brought
by a City of Burbank police officer under 42 U.S.C. § 1983,
who alleged that he was placed on administrative leave in
retaliation for disclosing his fellow officers’ misconduct.

    The court overruled Huppert v. City of Pittsburg,
574 F.3d 696 (9th Cir. 2009). The court held that (1) after
Garcetti v. Ceballos, 547 U.S. 410 (2006), courts must make
a “practical” inquiry when determining the scope of a
government employee’s professional duties and that Huppert
erred in concluding that California broadly defines police
officers’ duties as a matter of law for the purpose of First

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   DAHLIA V. RODRIGUEZ                       3

Amendment retaliation analysis; and (2) placement on
administrative leave can constitute an adverse employment
action. The court further held that, on remand, plaintiff could
renew his request for leave to amend his complaint to allege
more explicitly which acts were protected by the First
Amendment and which acts constituted adverse employment
actions.

    Specially concurring, Judge Pregerson stated that
plaintiff’s speech that reported unlawful acts by his fellow
officers was protected under the First Amendment from
retaliation by his superior officers at the Burbank Police
Department regardless of whether he reported the police
abuse up the chain of command or outside the chain of
command.

    Concurring only in the judgment, Judge O’Scannlain,
joined by Chief Judge Kozinski, stated that he agreed that
plaintiff was entitled to be granted leave to amend his
complaint and it was on that narrow basis that he would
reverse the district court’s judgment. Judge O’Scannlain
dissented from the majority’s analysis, stating that with its
decision to discard Huppert, and with its newly-minted
“guiding principles” for identifying protected speech, the
majority opinion reopened doors that the Supreme Court
slammed shut in Garcetti v. Ceballos, 547 U.S. 410 (2006).
4                 DAHLIA V. RODRIGUEZ

                       COUNSEL

Michael A. Morguess (argued), Michael A. McGill, and
Russell M. Perry of Lackie, Dammeier & McGill, Upland,
California; Scott Michelman and Scott L. Nelson, Public
Citizen Litigation Group, Washington, D.C., for Plaintiff-
Appellant Angelo Dahlia.

Steven J. Renick (argued) and Eugene P. Ramirez of
Manning & Kass, Ellrod, Ramirez, Trester, LLP, Los
Angeles, California, for Defendant-Appellee Jon Murphy.

Ken Yuwiler and Michael Simidjian of Silver, Hadden,
Silver, Wexler & Levine, Santa Monica, California, for
Defendant-Appellee Omar Rodriguez.

Michael Logan Rains, Harry S. Stern, and Lara Cullinane-
Smith of Rains, Lucia, Stern, PC, Pleasant Hill, California,
for Defendant-Appellee Edgar Penaranda.

Richard R. Terzian of Burke, Williams & Sorensen, LLP, Los
Angeles, California, for Defendant-Appellee City of Burbank.

Michael P. Stone and Muna Busailah of Riverside Sheriffs’
Association Legal Defense Trust, Pasadena, California, for
Amicus Curiae Riverside Sheriffs’ Association and Riverside
Sheriffs’ Association Legal Defense Trust.
                   DAHLIA V. RODRIGUEZ                        5

                          OPINION

PAEZ, Circuit Judge:

    In this case we address the extent to which a police officer
retains First Amendment protection when he discloses his
fellow officers’ misconduct. Angelo Dahlia, a detective in
the Burbank Police Department (“BPD”), brought this
42 U.S.C. § 1983 First Amendment retaliation suit against the
City of Burbank, the Chief of Police and several other police
officers. The district court granted the defendants’ motions
to dismiss the § 1983 cause of action for failure to state a
claim. Fed. R. Civ. P. 12(b)(6). The court reasoned that,
under Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.
2009), Dahlia’s disclosure to the Los Angeles Sheriff’s
Department (“LASD”) of his fellow officers’ misconduct was
not subject to First Amendment protection because he had a
professional duty, as a matter of California case law, to report
misconduct. The district court also held that Dahlia’s
placement on administrative leave did not constitute an
“adverse employment action.”

    We reverse the district court on both grounds and overrule
Huppert. We hold that (1) after Garcetti v. Ceballos,
547 U.S. 410, 424 (2006), courts must make a “practical”
inquiry when determining the scope of a government
employee’s professional duties and that Huppert erred in
concluding that California broadly defines police officers’
duties as a matter of law for the purpose of First Amendment
retaliation analysis; and (2) placement on administrative leave
can constitute an adverse employment action. We further
hold that, on remand, Dahlia may renew his request for leave
to amend his complaint to allege more explicitly which acts
6                     DAHLIA V. RODRIGUEZ

are protected by the First Amendment and which acts
constitute adverse employment actions.

    I. FACTUAL AND PROCEDURAL BACKGROUND

                                  A.1

    Following an armed robbery on December 28, 2007, at
Porto’s Bakery & Café in Burbank, California, Dahlia was
assigned to assist in the robbery investigation, which was
supervised by defendant Lieutenant Jon Murphy. The day
after the robbery, Dahlia observed defendant Lieutenant
Omar Rodriguez grab a suspect by the throat with his left
hand, retrieve his handgun from its holster with his right
hand, and place the barrel of the gun under the suspect’s eye,
saying, “How does it feel to have a gun in your face
motherfucker.” Rodriguez noticed Dahlia looking on in
disbelief. Later that same evening, Dahlia heard yelling and
the sound of someone being hit and slapped from inside a
room where defendant Sergeant Edgar Penaranda was
interviewing another suspect.2

    Dahlia was subsequently excluded from participating in
suspect interviews, and high-ranking officers within BPD
essentially took control of the investigation. Witnesses and
suspects continued to be physically assaulted and beaten in

    1
     The following factual background is drawn from the allegations of
Dahlia’s complaint. Because Dahlia’s complaint was dismissed under
Federal Rule of Civil Procedure 12(b)(6), we take his factual allegations
as true for the purposes of our review. TwoRivers v. Lewis, 174 F.3d 987,
991 (9th Cir. 1999).
 2
   Murphy, Rodriguez and Penaranda were all high-ranking supervisors
who outranked Dahlia.
                   DAHLIA V. RODRIGUEZ                        7

BPD’s interview rooms, while officers prevented anyone
from walking past the rooms or into the audio room. Dahlia
met with Murphy to disclose the abuse that he had witnessed.
Dahlia told Murphy that the interviews were getting too
physical and that Dahlia was having difficulty maintaining
order in the investigation. Murphy responded by telling
Dahlia to “stop his sniveling.”

    The physical beatings continued in BPD interview rooms
and in the field, evidenced by the booking photos of various
suspects. At one point, Chief of Police Stehr appeared at a
briefing and, upon learning that not all of the robbery
suspects were in custody, said, “Well then beat another one
until they are all in custody.”

    After witnessing the misconduct and abuse, Dahlia
approached Murphy a second time and pleaded that he did not
have control over the case. Murphy became upset and told
Dahlia that he “didn’t want to hear this shit again” and that he
was “tired of all the B.S.” In January 2008, Dahlia and
another detective met with Murphy a third time, telling him
that “the beatings have to stop” and “the madness ha[s] to
stop.” Murphy did nothing to respond to these complaints
and the abusive tactics continued.

    In April 2008 officers learned that BPD’s Internal Affairs
(“IA”) unit was planning to investigate the unlawful physical
abuse and the other illegal procedures relating to the Porto’s
robbery investigation. Around the same time, Rodriguez
began going out of his way to monitor Dahlia and ultimately
threatened him not to say anything to IA. As the IA
investigation grew nearer, Rodriguez and Penaranda
contacted Dahlia on a daily basis, threatening him to keep
quiet. Before the IA investigation commenced, Chief Stehr
8                  DAHLIA V. RODRIGUEZ

told an IA lieutenant, “I put you in this position to make it go
away.”

    On April 29, 2008, Dahlia was interviewed for the first
time by IA. Immediately after the interview, Rodriguez
confronted Dahlia and demanded to know what Dahlia had
said during the interview. Dahlia’s complaint is silent
regarding what he actually said during the IA interview,
though he told Rodriguez, out of fear, that he did not say
anything to IA. When asked by Penaranda if he had disclosed
anything to IA, Dahlia, out of fear for his safety, also told
Penaranda that he had not.

    On May 8, 2008, IA interviewed Dahlia a second time.
After the interview, Dahlia received a call from Rodriguez
directing him to report to a park. Dahlia went to the park,
believing that there was an incident occurring, but
encountered only Rodriguez and another officer there.
Rodriguez approached him aggressively and asked, “What the
fuck did you tell them?” Rodriguez then asked, almost
verbatim, the questions posed by IA and attempted to
intimidate Dahlia into revealing his answers. Rodriguez,
Penaranda and another officer incessantly harassed,
intimidated and threatened Dahlia over the following weeks,
to the point where his working conditions were “fully
consumed” by the intimidation.

    On May 21, 2008, IA interviewed Dahlia a third time.
Immediately after the interview, Rodriguez appeared and
aggressively stared directly at Dahlia. The threats and
intimidation continued during the subsequent months.
                   DAHLIA V. RODRIGUEZ                       9

Toward the end of 2008, Penaranda and Murphy told Dahlia
that a federal investigation into the Porto’s robbery might be
forthcoming and warned Dahlia not to disclose anything to
federal investigators. In January 2009, rumors circulated
more widely that the FBI had been contacted about
commencing an investigation. At some point, Murphy told
Dahlia, “It’s on. The Feds are doing an investigation and
heads are going to roll. Don’t say anything.” Penaranda told
Dahlia, “It’s gonna be bad. You can’t say anything.”
Rodriguez also approached Dahlia and told him “not to talk
to the feds.” The complaint alleges neither that the FBI
actually commenced an investigation nor that Dahlia ever
spoke to the FBI.

    On April 2, 2009, Rodriguez called Dahlia into his office,
told Dahlia to sit down, and closed the door and the blinds.
Rodriguez then retrieved his gun from its holster, looked at
Dahlia, and placed the gun in a drawer. At one point during
the meeting, Rodriguez placed his hands on the desk and told
Dahlia, “I’m not a fucking cheese eating rat” and then
commented that he was not afraid of being suspended or
fired. Rodriguez also leaned forward and said, “Fuck with
me and I will put a case on you, and put you in jail. I put all
kinds of people in jail, especially anyone who fucks with
me!” Dahlia reported this incident to the Burbank Police
Officers’ Association president, who reported it to the
Burbank City Manager.

    On May 11, 2009, LASD interviewed Dahlia about the
Porto’s robbery investigation. During the interview, Dahlia
disclosed the defendants’ misconduct, threats, intimidation
and harassment. Four days later, Dahlia was placed on
administrative leave pending discipline.
10                  DAHLIA V. RODRIGUEZ

    Dahlia alleges that he was subjected to adverse
employment actions as a result of his protected speech
activities and that there was no legitimate justification for the
adverse actions. In alleging a § 1983 violation, Dahlia claims
that defendants’ retaliatory acts included, inter alia, threats,
ostracism, denial of employment opportunities, undue
scrutiny of work performance, denial of continued
employment, and malicious statements calculated to destroy
his reputation.

                               B.

    Dahlia filed his § 1983 complaint in November 2009,
alleging seven claims: (1) retaliation against a public
employee for speech disclosing police misconduct, in
violation of the First Amendment; (2) retaliation against a
public employee for disclosing information to a government
or law enforcement agency, in violation of California Labor
Code section 1102.5; (3) retaliation against a public employee
for making an oral or written complaint to a governmental
agency, in violation of California Labor Code section 6310;
(4) retaliation against a public employee for disclosing an
abuse of authority or a substantial and specific danger to
public health or safety, in violation of California Government
Code section 53298; (5) a violation of the Bane Act,
California Civil Code section 52.1(b), which prohibits
interference with the exercise of constitutional rights; (6)
intentional infliction of emotional distress; and (7) negligent
infliction of emotional distress. Dahlia sued the City of
Burbank, Police Chief Stehr, Lieutenants Murphy and
Rodriguez, Sergeants Penaranda and Jose Duran, and
Detective Chris Canales.
                   DAHLIA V. RODRIGUEZ                      11

    Police Chief Stehr moved for summary judgment on
several grounds, including qualified immunity. The district
court denied without prejudice, as premature, Stehr’s
summary judgment motion because Dahlia had not yet had an
adequate opportunity to conduct discovery. Stehr pursued an
interlocutory appeal of the district court’s denial of his
motion for summary judgment. The original three-judge
panel in this case reversed the denial of qualified immunity
for Stehr in an unpublished memorandum disposition. Dahlia
v. Stehr, 491 F. App’x 799 (9th Cir. 2012).

    The remaining individual defendants moved, primarily
relying on Huppert, to dismiss the case for failure to state a
claim. Fed. R. Civ. P. 12(b)(6). Granting these motions, the
district court determined that Dahlia’s § 1983 claim was
barred because (1) he spoke pursuant to his official duties and
thus was not constitutionally protected, and (2) placement on
paid administrative leave is not an adverse employment
action. The district court accordingly dismissed Dahlia’s
§ 1983 claim with prejudice, and declined to exercise
supplemental jurisdiction over Dahlia’s state law claims.

    A panel of this court reluctantly affirmed on the ground
that it was bound by Huppert v. City of Pittsburg to conclude
that Dahlia spoke pursuant to his official duties. Dahlia v.
Rodriguez, 689 F.3d 1094 (9th Cir. 2012). In no uncertain
terms, the panel stated that “[t]he reasoning in Huppert that
professional duties can be determined as a matter of law is
wrong, and the result that reports of police misconduct are not
protected by the First Amendment is dangerous.” Id. at
1106–07. Contrary to the district court, the panel found that
placement on administrative leave and the resulting
consequences, “if proven, . . . may very well constitute an
12                    DAHLIA V. RODRIGUEZ

adverse employment action.” Id. at 1107. Upon a majority
vote of eligible judges, we granted rehearing en banc.

 II. JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction under 28 U.S.C. § 1291 to review
the district court’s final judgment dismissing with prejudice
Dahlia’s claims against Murphy, Penaranda, Rodriguez and
the City of Burbank.3 We review de novo the district court’s
dismissal of Dahlia’s complaint for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In
undertaking this review, “we must accept all factual
allegations of the complaint as true and draw all reasonable
inferences in favor of the nonmoving party.” TwoRivers,
174 F.3d at 991. Dismissal under Rule 12(b)(6) is
inappropriate unless Dahlia’s complaint fails to “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

                          III. ANALYSIS

   “It is well settled that the state may not abuse its position
as employer to stifle ‘the First Amendment rights [its
employees] would otherwise enjoy as citizens to comment on
matters of public interest.’” Eng v. Cooley, 552 F.3d 1062,
1070 (9th Cir. 2009) (alteration in original) (quoting
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).
Moreover, the public has a strong interest in hearing from
public employees, especially because “[g]overnment
employees are often in the best position to know what ails the

 3
   Prior to en banc oral argument, Dahlia dismissed his appeal against the
other named defendants, Canales and Duran.
                   DAHLIA V. RODRIGUEZ                       13

agencies for which they work.” Waters v. Churchill,
511 U.S. 661, 674 (1994). It may often be the case that,
unless public employees are willing to blow the whistle,
government corruption and abuse would persist undetected
and undeterred.

     In Pickering, the Supreme Court defined a balancing test
for First Amendment retaliation cases involving public
employees. The task for us is to seek “a balance between the
interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services
it performs through its employees.” Pickering, 391 U.S. at
568; see also Connick v. Myers, 461 U.S. 138, 142 (1983).
The Court has recognized that “the First Amendment interests
at stake extend beyond the individual speaker . . . [because of]
the importance of promoting the public’s interest in receiving
the well-informed views of government employees engaging
in civic discussion.” Garcetti, 547 U.S. at 419. In the classic
whistleblower case the state has no legitimate interest in
covering up corruption and physical abuse. As an inevitable
result of the Court’s jurisprudence and sound public policy,
the First Amendment generally protects public employee
whistleblowers from employer retaliation.

    But our inquiry does not end there. In unraveling the case
law since Pickering, we have further refined the Court’s
balancing test into a five-step inquiry. We ask:

       (1) whether the plaintiff spoke on a matter of
       public concern; (2) whether the plaintiff spoke
       as a private citizen or public employee; (3)
       whether the plaintiff’s protected speech was a
       substantial or motivating factor in the adverse
14                     DAHLIA V. RODRIGUEZ

         employment action; (4) whether the state had
         an adequate justification for treating the
         employee differently from other members of
         the general public; and (5) whether the state
         would have taken the adverse employment
         action even absent the protected speech.

Eng, 552 F.3d at 1070.4

    In this case, we can easily answer the first question.
Dahlia’s speech—reporting police abuse and the attempts to
suppress its disclosure—is quintessentially a matter of public
concern. See Connick, 461 U.S. at 148 (noting that speech
warrants protection when it “seek[s] to bring to light actual or
potential wrongdoing or breach of public trust”); Thomas v.
City of Beaverton, 379 F.3d 802, 809 (9th Cir. 2004) (finding
that “[u]nlawful conduct by a government employee or illegal
activity within a government agency is a matter of public
concern”); see also Jackler v. Byrne, 658 F.3d 225, 236 (2d
Cir. 2011) (noting that “‘[e]xposure of official misconduct,
especially within the police department, is generally of great

 4
   We have sometimes described the Eng steps as “sequential.” See, e.g.,
Johnson, 658 F.3d at 961; Robinson, 566 F.3d at 822; Eng, 552 F.3d at
1070. We now clarify that, by “sequential,” we mean only that all the
factors are necessary, in the sense that failure to meet any one of them is
fatal to the plaintiff’s case. See, e.g., Desrochers v. City of San
Bernadino, 572 F.3d 703, 709–19 (9th Cir. 2009) (holding that plaintiffs
could not show their speech covered a matter of public concern, and
therefore could not state a First Amendment retaliation claim, without
addressing the other Eng steps). That all five factors are necessary does
not mean that courts must always go through the steps in the same order
that they are listed in Eng. To the contrary, precisely because all five
factors are independently necessary, it may be more efficient in some
instances to answer a potentially dispositive question further down the Eng
list first.
                       DAHLIA V. RODRIGUEZ                             15

consequence to the public’” (quoting Branton v. City of
Dallas, 272 F.3d 730, 740 (5th Cir. 2001))), cert. denied,
132 S. Ct. 1634 (2012); Marable v. Nitchman, 511 F.3d 924,
932 (9th Cir. 2007) (finding it “worth noting that an
employee’s charge of high level corruption in a government
agency has all of the hallmarks that we normally associate
with constitutionally protected speech . . . and criticisms of
the government lie at or near the core of what the First
Amendment aims to protect”).5

    The district court, however, ruled that Dahlia’s § 1983
First Amendment claim was barred because it found that (1)
as a matter of law, Dahlia could not establish that he spoke
“in the capacity of a private citizen and not a public
employee,” Eng, 552 F.3d at 1071; and (2) being placed on
administrative leave does not constitute an adverse
employment action for the purposes of the First Amendment.
We disagree with both conclusions and analyze them in turn.

                 A. Speech as a Private Citizen

                                    1.

   In Garcetti, the Supreme Court narrowed the First
Amendment protections for public employees. 547 U.S. 410.
The Court added an additional requirement to the Pickering

 5
   In addressing the “public concern” prong of Eng, we clarified that “[i]t
is not determinative that [a plaintiff] did not air his concerns publicly.”
Anthoine v. N. Cent. Cntys. Consortium, 605 F.3d 740, 749 (9th Cir.
2010); see also Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410,
415–16 (1979) (noting that “[n]either the [First] Amendment itself nor our
decisions indicate that this freedom is lost to the public employee who
arranges to communicate privately with his employer rather than to spread
his views before the public”).
16                 DAHLIA V. RODRIGUEZ

balancing test, holding that the First Amendment does not
protect employee speech when that speech is “pursuant to . . .
official duties.” Id. at 421. This requirement is captured by
the second prong of our test set forth in Eng, 552 F.3d at
1070. Whether Dahlia’s speech is protected by the First
Amendment is rooted in the Court’s analysis in Garcetti.

    In Garcetti, plaintiff Ceballos was a deputy district
attorney for Los Angeles County assigned as a calendar
deputy during the relevant period. 547 U.S. at 413. A
defense attorney contacted Ceballos and asked him to
investigate inaccuracies in a critical police affidavit. Id.
“According to Ceballos, it was not unusual for defense
attorneys to ask calendar deputies to investigate aspects of
pending cases.” Id. at 414. After investigating the alleged
inaccuracies, “Ceballos determined the affidavit contained
serious misrepresentations,” which he reported to his
supervisor. Id. He “followed up by preparing a disposition
memorandum” and an additional memo to his supervisor. Id.
After a heated meeting attended by Ceballos, his supervisor
and the affiant, the supervisor decided to proceed with the
prosecution. Id. Ceballos brought a § 1983 First Amendment
retaliation claim challenging the imposition of adverse
employment actions in the aftermath of these events. Id. at
415.

     In rejecting Ceballos’ claim, the Court held that, “when
public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.” Id. at 421.
The Court said that “[t]he controlling factor in Ceballos’ case
is that his expressions were made pursuant to his duties as a
calendar deputy.” Id. Importantly, the Court noted that “the
                      DAHLIA V. RODRIGUEZ                             17

parties in this case do not dispute that Ceballos wrote his
disposition memo pursuant to his employment duties. We
thus have no occasion to articulate a comprehensive
framework for defining the scope of an employee’s duties in
cases where there is room for serious debate.” Id. at 424.6

    The Court further explained that various easy heuristics
are insufficient for determining whether an employee spoke
pursuant to his professional duties. The Court said that it was
“not dispositive” that “Ceballos expressed his views inside
his office, rather than publicly. . . . Employees in some cases
may receive First Amendment protection for expressions


  6
    Although it was not essential to finding that Ceballos acted pursuant
to his professional duties in preparing the memorandum to his supervisor,
the Court offered further explanation:

         [T]he fact that Ceballos spoke as a prosecutor fulfilling
         a responsibility to advise his supervisor about how best
         to proceed with a pending case [] distinguishes
         Ceballos’ case from those in which the First
         Amendment provides protection against discipline. . . .
         Ceballos wrote his disposition memo because that is
         part of what he, as a calendar deputy, was employed to
         do. . . . Ceballos did not act as a citizen when he went
         about conducting his daily professional activities, such
         as supervising attorneys, investigating charges, and
         preparing filings. In the same way he did not speak as
         a citizen by writing a memo that addressed the proper
         disposition of a pending criminal case. When he went
         to work and performed the tasks he was paid to
         perform, Ceballos acted as a government employee.
         The fact that his duties sometimes required him to
         speak or write does not mean his supervisors were
         prohibited from evaluating his performance.

Garcetti, 547 U.S. at 421–22 (paragraph breaks omitted).
18                     DAHLIA V. RODRIGUEZ

made at work.” Id. at 420. It was also “nondispositive” that
“[t]he memo concerned the subject matter of Ceballos’
employment. . . . The First Amendment protects some
expressions related to the speaker’s job.” Id. at 421.
Additionally, the Court rejected “the suggestion that
employers can restrict employees’ rights by creating
excessively broad job descriptions. Id. at 424. The Court
concluded:

         The proper inquiry is a practical one. Formal
         job descriptions often bear little resemblance
         to the duties an employee actually is expected
         to perform, and the listing of a given task in
         an employee’s written job description is
         neither necessary nor sufficient to
         demonstrate that conducting the task is within
         the scope of the employee’s professional
         duties for First Amendment purposes.

Id. at 424–25 (citation omitted).7


   7
     Judge O’Scannlain’s concurrence suggests that there should be a
“bright line” between citizen-speech and employee-speech. O’Scannlain
Concurrence at 49–50, id. at 49 n.2 (noting that “[t]he dissenters in
Garcetti, as well as the academic literature since, recognize the bright-line
nature of the inquiry”). We do not take issue with the straight-forward
proposition that Garcetti altered the Pickering balancing approach by
recognizing that once a plaintiff’s speech is classified as having been
made pursuant to an employee’s official duties, then such speech is
categorically denied First Amendment protection. See O’Scannlain
Concurrence at 49 n.2 and citations therein. However, this bright-line rule
only begs the question of whether a plaintiff actually spoke pursuant to his
official duties. It is that inquiry that is before us here, and Garcetti
explicitly said that there is no bright line rule for making that
determination. As Judge O’Scannlain quotes: “‘Employees in some cases
may receive First Amendment protection for expressions made at work.’”
                       DAHLIA V. RODRIGUEZ                             19

    Three years after Garcetti, a panel of this court decided
Huppert v. City of Pittsburg, another § 1983 First
Amendment retaliation case. The Huppert majority affirmed
the grant of summary judgment to the defendant, holding that
California police officers acted pursuant to their official
duties when they investigated and reported on corruption
within the police department by (1) assisting the District
Attorney as ordered, (2) defying the police chief’s orders and
continuing an investigation at the behest of an immediate
supervisor, (3) cooperating with the FBI, and (4) testifying
before a grand jury. 574 F.3d at 698–700, 703, 706–08.

    Although the Huppert majority engaged in the requisite
“practical” inquiry in determining that the officers acted
pursuant to their official duties as to the first two speech acts,
id. at 703–06,8 it relied on a 1939 California court of appeal


O’Scannlain Concurrence at 50 (quoting Garcetti, 547 U.S. at 420
(emphasis in O’Scannlain Concurrence)). Indeed, in the only portion of
the opinion dealing with how to define the scope of an employee’s job
duties, the Garcetti Court exclusively pointed to non-dispositive factors.
547 U.S. at 424–25.
  8
    As to the first issue in Huppert, the majority considered the factual
record and determined that the undisputed facts (including an admission
by the plaintiff, Huppert) enabled it to conclude as a matter of law that
Huppert assisted the District Attorney pursuant to his professional duties.
574 F.3d at 703–06.

     As to the second issue, although the dissent disagreed, the majority
similarly concluded that, based on the undisputed facts, the plaintiff
officers investigated corruption and prepared a report for the police chief
and the city manager pursuant to their professional duties. Id. at 706; id.
at 720 (W. Fletcher, J., dissenting). In concluding that there was a
disputed question of fact as to the scope of the plaintiffs’ duties, the
dissent pointed out that the police chief had instructed the plaintiffs to
cease their investigation whereas the plaintiffs’ direct supervisor had
20                      DAHLIA V. RODRIGUEZ

decision to conclude, as a matter of law, that an officer acted
pursuant to his official duties in cooperating with the FBI and
testifying before a grand jury, id. at 706–10 (relying on
Christal v. Police Comm’n of City of San Francisco, 92 P.2d
416 (Cal. Dist. Ct. App. 1939)).9




instructed the opposite. Id. at 720 (W. Fletcher, J., dissenting). We hold,
infra, that in determining the scope of a plaintiff’s job duties, a fact-finder
should consider the instructions given to a plaintiff by his superiors. To
the extent that Huppert can be read to preclude this consideration, we
overrule it.
  9
    The full passage from Christal relied upon by the Huppert majority
reads like a civics textbook:

              “The duties of police officers are many and varied.
         Such officers are the guardians of the peace and
         security of the community, and the efficiency of our
         whole system, designed for the purpose of maintaining
         law and order, depends upon the extent to which such
         officers perform their duties and are faithful to the trust
         reposed in them. Among the duties of police officers
         are those of preventing the commission of crime, of
         assisting in its detection, and of disclosing all
         information known to them which may lead to the
         apprehension and punishment of those who have
         transgressed our laws. When police officers acquire
         knowledge of facts which will tend to incriminate any
         person, it is their duty to disclose such facts to their
         superiors and to testify freely concerning such facts
         when called upon to do so before any duly constituted
         court or grand jury. It is for the performance of these
         duties that police officers are commissioned and paid
         by the community.”

Huppert, 574 F.3d at 707 (quoting Christal, 92 P.2d at 419).
                   DAHLIA V. RODRIGUEZ                       21

    In relying on Christal’s sweeping description of a
California police officer’s professional duties, the Huppert
majority failed to heed Garcetti’s mandate that “the proper
inquiry [to determine the scope of an employee’s professional
duties] is a practical one.” Garcetti, 547 U.S. at 424. The
Court’s stated reason for requiring such an inquiry is
precisely because “employers [cannot] restrict employees’
rights by creating excessively broad job descriptions.” Id.
Relying on a broad court-created job description applicable
to every member of a profession operates to do just that.
Moreover, even if Christal’s formulation of California police
officers’ duties remains generally accurate, “the listing of a
given task in an employee’s written job description is neither
necessary nor sufficient to demonstrate that conducting the
task is within the scope of the employee’s professional duties
for First Amendment purposes.” Id. at 425.

    Given the factual similarities here, the three-judge panel
in this case, although expressing disagreement with Huppert,
concluded that it was bound by it. We overrule Huppert to
the extent that it improperly relied on a generic job
description and failed to conduct the “practical,” fact-specific
inquiry required by Garcetti. In so holding, we reject the
defendants’ argument that California police officers are
unique for the purposes of First Amendment retaliation
claims. See Kannisto v. City of San Francisco, 541 F.2d 841,
843 (9th Cir. 1976) (noting in a § 1983 First Amendment
retaliation case that “[t]he Supreme Court has made it clear
that ‘policemen, like teachers and lawyers . . . are not
relegated to a watered-down version of constitutional rights.’
Garrity v. New Jersey, 385 U.S. 493, 500 (1967)”).
22                  DAHLIA V. RODRIGUEZ

                               2.

    We also reject Judge O’Scannlain’s—and the
defendants’—argument that Christal and its progeny are
controlling here for the additional reason that the authority he
cites is inapposite.        Although Judge O’Scannlain’s
concurrence does not mention it, O’Scannlain Concurrence at
53–56, Christal explicitly limited its holding to whether
police officers who were being investigated for criminal
activities could assert their Fifth Amendment right against
self-incrimination and still remain police officers. 92 P.2d at
418–19 (“We are concerned here only with the result of the
exercise of [the Fifth Amendment] privilege, by those holding
the positions of police officers, in an investigation by which
it was sought to determine whether such officers had been
guilty of criminal activities in connection with their duties as
police officers.”). Even were we to ignore its limited holding,
Christal explicitly stated that officers have a “duty to disclose
such facts to their superiors.” Id. at 419 (emphasis added).
Therefore, even over-reading Christal’s dicta, and then
applying it in clear violation of Garcetti, would not resolve
this case.

    The thrust of Judge O’Scannlain’s argument—like that of
the defendants—is that police officers are unique under
California law for the purpose of First Amendment retaliation
claims. This is true, he argues, because California police
officers have a freestanding professional duty to disclose the
unlawful conduct of others to their superiors as well as to
outside law enforcement agencies. O’Scannlain Concurrence
at 53–56. Yet neither the case law nor the statute on which he
relies supports this proposition.
                   DAHLIA V. RODRIGUEZ                     23

    Rather, the California cases cited by defendants—a subset
of which Judge O’Scannlain relies on—stand for the
unsurprising proposition that a public employee cannot, when
ordered, refuse to comply with a lawful investigation and
escape discipline for so doing. As the California courts have
reiterated even outside the policing context, “‘[a] public
employee, of course, cannot be forced to give an answer
which may tend to incriminate him, but he may be required
to choose between disclosing information and losing his
employment.’” Hingsbergen v. State Pers. Bd., 50 Cal. Rptr.
59, 64 (Cal. Dist. Ct. App. 1966) (quoting Steinmetz v. Cal.
State Bd. of Educ., 285 P.2d 617, 621–22 (Cal. 1955) (en
banc)). Hingsbergen, for example, was not a police officer,
but an employee of the California Department of Motor
Vehicles (“DMV”). Id. at 60. He was dismissed for “willful
disobedience” because he refused to answer questions when
he was ordered to cooperate in an investigation by the state
attorney general’s office and the local district attorney into
malfeasance within the DMV. Id. at 61. Indeed, as
Hingsbergen indicates, any public employee may face
discipline for stonewalling, against orders to comply, a
properly conducted investigation into misconduct within his
department. The California cases and statute cited by Judge
24                     DAHLIA V. RODRIGUEZ

O’Scannlain stand for nothing further.10 See O’Scannlain
Concurrence at 53–53, 65.

    That an officer could be disciplined for failing to comply
with an order only begs the question in Dahlia’s case. Here,
the only allegations in the record are that Dahlia was ordered
not to comply with an investigation.11

 10
      California Government Code section 3304(a) provides in part:

          Nothing in this section shall preclude a head of an
          agency from ordering a public safety officer to
          cooperate with other agencies involved in criminal
          investigations. If an officer fails to comply with such
          an order, the agency may officially charge him or her
          with insubordination.

Cal. Gov’t Code § 3304. See Riverside Cnty. Sheriff’s Dep’t v. Zigman,
87 Cal. Rptr. 3d 358 (Cal. Ct. App. 2008) (holding that a police officer
could not invoke the marital privilege in an administrative investigation
into her police officer husband’s theft and use of methamphetamine and
avoid discipline pursuant to departmental policy); Alhambra Police
Officers Ass’n v. City of Alhambra Police Dep’t, 7 Cal. Rptr. 3d 432, 438
(Cal. Ct. App. 2003) (holding that California’s Public Safety Officers
Procedural Bill of Rights Act did not permit a police union representative
to “locate and remove documentary evidence pertaining to the misconduct
investigation of another officer and then to return the evidence to the
officer accused of misconduct—in admitted contravention of department
rules and procedures”); Titus v. L.A. Cnty. Civil Serv. Comm’n., 181 Cal.
Rptr. 699 (Cal. Ct. App. 1982) (holding that a police officer who also
acted as an attorney could not invoke the attorney-client privilege and
impede an investigation by his police department into his client’s illegal
activity and simultaneously avoid being sanctioned for doing so).
     11
      The other California cases cited by Judge O’Scannlain and the
defendants, as in Christal, invariably involve a police officer trying to
avoid incriminating himself. That a police officer cannot hide from the
law and simultaneously keep his badge does not imply that an officer has
a freestanding professional duty to report the unlawful activity of others.
                      DAHLIA V. RODRIGUEZ                            25

                                   3.

    Our case law since Garcetti provides further guidance. In
Posey, we analyzed a § 1983 First Amendment retaliation
claim brought by a high school security guard against the
school district that was dismissed on summary judgment.
Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121,
1123 (9th Cir. 2008). Considering the divergent views of
other circuits, we concluded that “after Garcetti the inquiry
into the protected status of speech presents a mixed question
of fact and law, and specifically that the question of the scope
and content of a plaintiff’s job responsibilities is a question of
fact.” Id. at 1130. Therefore we held that, “when there are
genuine and material disputes as to the scope and content of
the plaintiff’s job responsibilities, the court must reserve
judgment on [whether the plaintiff’s speech was pursuant to
his official duties] . . . until after the fact-finding process.”
Id. at 1131; see also Robinson v. York, 566 F.3d 817, 823–24
(9th Cir. 2009) (holding that the “scope of [the plaintiff’s] job
duties is a question of fact”); Eng, 552 F.3d at 1071 (noting
that “the question of the scope and content of a plaintiff’s job
responsibilities is a question of fact” (internal quotation
marks omitted)); Freitag v. Ayers, 468 F.3d 528, 546 (9th Cir.




See Szmaciarz v. Cal. State Pers. Bd., 145 Cal. Rptr. 396 (Cal. Dist. Ct.
App. 1978) (holding that a correctional officer was properly disciplined
when he refused to answer questions or submit to a polygraph during an
investigation into his use and transport of marijuana into a prison);
Fichera v. Cal. State Pers. Bd., 32 Cal. Rptr. 159 (Cal. Dist. Ct. App.
1963) (holding that a state police officer was properly terminated for
refusing to take a polygraph test in the investigation of an accusation
against him); Frazee v. Civil Serv. Bd. of City of Oakland, 338 P.2d 943
(Cal. Dist. Ct. App. 1959) (same as to a local police officer).
26                      DAHLIA V. RODRIGUEZ

2006) (holding that determining the scope of professional
duties requires “factual determinations”).12

    In Posey, we then held that the district court erred in
granting summary judgment to the school district. We
reasoned that there was a genuine dispute as to whether Posey
acted pursuant to his official duties when he expressed his
concern about school security in a letter to district


  12
     As we recognized in Posey, our view that “the scope and content of
a plaintiff’s job responsibilities is a question of fact” is consistent with
holdings of the Third, Seventh, and Eighth Circuits, but not with that of
the Fifth, Tenth, and D.C. Circuits. 546 F.3d at 1128–30. We continue
to adhere to our view and note that when an inquiry “is a mixed question
of law and fact, . . . it often will be inappropriate to take the question from
the jury.” Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997).

     Moreover, even several of the circuits that classify the inquiry into the
scope of professional duties as a “question of law” nevertheless undertake
a tailored, fact-specific assessment of a plaintiff’s professional
circumstances. See, e.g., Charles v. Grief, 522 F.3d 508, 512–14 (5th Cir.
2008) (analyzing plaintiff’s particular professional role and duties, even
though the ultimate question of whether speech is entitled to protection is
considered a legal question); Brammer-Hoelter v. Twin Peaks Charter
Acad., 492 F.3d 1192, 1204–05 (10th Cir. 2007) (analyzing the contents
of teachers’ contracts and parsing aspects of their speech to classify
comments on, e.g., their school’s “expectations regarding student
behavior” as unprotected speech and comments on, e.g., “staffing levels”
at the school as protected speech); Wilburn v. Robinson, 480 F.3d 1140,
1150–51 (D.C. Cir. 2007) (conducting factual inquiry into nature of
plaintiff’s particular professional responsibilities).

     Since Posey, the Fourth Circuit reversed the dismissal under Rule
12(b)(6) of a police officer’s § 1983 First Amendment retaliation claim
because “the question whether the [plaintiff’s internal memorandum that
he released to the press] . . . was written as part of his official duties was
a disputed issue of material fact.” Andrew v. Clark, 561 F.3d 261, 267
(4th Cir. 2009).
                    DAHLIA V. RODRIGUEZ                       27

administrators. Posey, 546 F.3d at 1124. The parties
disputed whether Posey’s duties included writing such
internal communications about school security. Id. at
1124–25 (noting that the district argued that providing
“reports and information about security matters at the high
school” was “an inherent part of his duties,” while Posey
contended that “his role in student discipline did not extend
beyond discrete tasks such as ensuring that the parking lot
remained orderly at the end of the school day”).

     In Freitag, defendant prison officials appealed a jury
verdict in favor of a correctional officer rendered before
Garcetti. Freitag, 468 F.3d at 532, 536. Applying Garcetti
to the § 1983 First Amendment retaliation claim, we held that
Freitag acted pursuant to her professional duties when she
made “internal reports of inmate sexual misconduct and
documentation of the prison’s failure to respond.” Id. at 546.
In contrast, we held that she “acted as a citizen” when she
complained about the same circumstances in a letter to a state
senator and to the state inspector general. Id. at 545. We
found it “a closer question” worthy of remand to the district
court familiar with the trial, whether Freitag acted pursuant to
her official duties when she sent a letter to the director of the
state prison system. Id. at 546. We were “unsure whether
prison guards are expected to air complaints regarding the
conditions in their prisons all the way up to” the director of
the state system. Id.

    In more than a half-dozen cases since Freitag, we have
planted additional guideposts for determining the scope of a
plaintiff’s professional duties for the purposes of the First
Amendment. See, e.g., Ellins v. City of Sierra Madre,
710 F.3d 1049 (9th Cir. 2013); Karl v. City of Mountlake
Terrace, 678 F.3d 1062 (9th Cir. 2012); Clairmont v. Sound
28                     DAHLIA V. RODRIGUEZ

Mental Health, 632 F.3d 1091 (9th Cir. 2011); Anthoine,
605 F.3d 740; Robinson, 566 F.3d 817; Alaska v. EEOC,
564 F.3d 1062 (9th Cir. 2009) (en banc); Eng, 552 F.3d 1062;
Marable, 511 F.3d 924.

                                     4.

    Precisely because of the fact-intensive nature of the
inquiry, no single formulation of factors can encompass the
full set of inquiries relevant to determining the scope of a
plaintiff’s job duties. However, we find that existing case law
and common sense dictate a few guiding principles relevant
to the case before us.13

    First, particularly in a highly hierarchical employment
setting such as law enforcement, whether or not the employee
confined his communications to his chain of command is a

  13
     Other circuits have set forth illustrative lists of factors to consider
when determining whether a given instance of speech falls within the
scope of a plaintiff’s job duties. See, e.g., Handy-Clay v. City of Memphis,
695 F.3d 531, 540–41 (6th Cir. 2012) (identifying as factors: “the impetus
for her speech, the setting of her speech, the speech’s audience, and its
general subject matter”; “whether the statements were made to individuals
up the chain of command”; “whether the content of the speech is nothing
more than the quintessential employee beef: management has acted
incompetently”; “whether the speech was made inside or outside of the
workplace and whether it concerned the subject-matter of the speaker’s
employment” (internal quotation marks omitted)); Decotiis v. Whittemore,
635 F.3d 22, 32 (1st Cir. 2011) (listing as “instructive” but not dispositive
factors: “whether the speech was made up the chain of command; whether
the employee spoke at her place of employment; whether the speech gave
objective observers the impression that the employee represented the
employer when she spoke (lending it ‘official significance’); whether the
employee’s speech derived from special knowledge obtained during the
course of her employment; and whether there is a so-called citizen
analogue to the speech” (citations omitted)).
                      DAHLIA V. RODRIGUEZ                             29

relevant, if not necessarily dispositive, factor in determining
whether he spoke pursuant to his official duties. When a
public employee communicates with individuals or entities
outside of his chain of command, it is unlikely that he is
speaking pursuant to his duties. See Freitag, 468 F.3d at
545–46 (holding that the correctional officer’s
communications with a state senator and the inspector general
were protected speech, but her internal reports were not); see
also Karl, 678 F.3d at 1072; Clairmont, 632 F.3d at 1105–06;
Alaska, 564 F.3d at 1070–71 (holding that the plaintiff’s act
of holding a press conference to protest sex discrimination in
her office was protected speech because, inter alia, her
“official duties didn’t require her to . . . bring the alleged
sexual harassment to the public’s attention”). Thus, we agree
with the Fifth Circuit that, generally, “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,” Davis v.
McKinney, 518 F.3d 304, 313 (5th Cir. 2008), although “it is
not dispositive that a public employee’s statements are made
internally,” id. at 313 n.3. “If however 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.” Id. at 313 (citing
Freitag, 468 F.3d 528).14


 14
    In its amicus brief, the Riverside Sheriffs’ Association and Riverside
Sheriffs’ Association Legal Defense Trust support this chain-of-command
distinction. See Amicus Br. at 2 (arguing that “a police officer’s speech
on a matter of important public concern[] should only fall outside the
scope of First Amendment protection if it is made pursuant to his or her
routine or core duties, within his or her chain of command, and in pursuit
of his or her duty to report misconduct to a superior” (emphases added)).
30                 DAHLIA V. RODRIGUEZ

    Second, the subject matter of the communication is also
of course highly relevant to the ultimate determination
whether the speech is protected by the First Amendment. See
Handy-Clay, 695 F.3d at 540 (identifying as a relevant factor
the speech’s “general subject matter” (internal quotation
marks omitted)). When an employee prepares a routine
report, pursuant to normal departmental procedure, about a
particular incident or occurrence, the employee’s preparation
of that report is typically within his job duties. See Garcetti,
547 U.S. at 421 (holding that a deputy district attorney’s
preparation of a memorandum regarding the merits of a
particular case was not First Amendment protected speech
because preparation of such memoranda was a routine part of
what he “was employed to do”); Freitag, 468 F.3d at 546
(holding that a correctional officer’s “internal reports of
inmate sexual misconduct” were not constitutionally
protected speech). By contrast, if a public employee raises
within the department broad concerns about corruption or
systemic abuse, it is unlikely that such complaints can
reasonably be classified as being within the job duties of an
average public employee, except when the employee’s
regular job duties involve investigating such conduct, e.g.,
when the employee works for Internal Affairs or another such
watchdog unit.

    Third, we conclude that when a public employee speaks
in direct contravention to his supervisor’s orders, that speech
may often fall outside of the speaker’s professional duties.
Indeed, the fact that an employee is threatened or harassed by
his superiors for engaging in a particular type of speech
provides strong evidence that the act of speech was not, as a
“practical” matter, within the employee’s job duties
notwithstanding any suggestions to the contrary in the
employee’s formal job description. Garcetti, 547 U.S. at
                   DAHLIA V. RODRIGUEZ                      31

424–25 (“Formal job descriptions often bear little
resemblance to the duties an employee actually is expected to
perform, and the listing of a given task in an employee’s
written job description is neither necessary nor sufficient to
demonstrate that conducting the task is within the scope of
the employee’s professional duties for First Amendment
purposes.”). We note that our sister circuits have disagreed
with one another on this point. Compare Jackler, 658 F.3d at
241–42 (holding that a police officer was entitled to First
Amendment protection when he filed a truthful affidavit
pursuant to his job duties and later refused the police chief’s
pressure to substitute a false affidavit, concluding that the
First Amendment protected his refusal to comply with the
illegal orders), with Bowie v. Maddox, 653 F.3d 45, 48 (D.C.
Cir.) (concluding that Jackler was wrongly decided because,
despite the police chief’s illegal order, “the illegality of a
government employer’s order does not necessarily mean the
employee has a cause of action under the First Amendment
when he contravenes that order”), denying reh’g to 642 F.3d
1122 (D.C. Cir. 2011). As in Jackler, we think that 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. 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. As part of a
“practical” inquiry, a trier of fact must consider what Dahlia
was actually told to do. See Garcetti, 547 U.S. at 424–25; see
also Robinson, 566 F.3d at 820–21, 823–24 (finding that we
lacked jurisdiction where the district court found that there
were genuine factual issues “regarding whether the scope of
Robinson’s duties included reporting police misconduct”
when Robinson, a police officer, filed multiple misconduct
32                    DAHLIA V. RODRIGUEZ

reports and testified to the same effect despite his superiors’
suggestions that he not do so).15

    These principles serve as a necessary guide to analyzing
the fact-intensive inquiry mandated by Garcetti.

                                   5.

    We next apply these principles to Dahlia. Although the
district court focused exclusively on Dahlia’s disclosure to
LASD, Dahlia alleged several independent acts that could
potentially be subject to First Amendment protection.
Because the district court granted a Rule 12(b)(6) motion to
dismiss, our task is not to resolve any factual dispute, but
merely to determine whether Dahlia’s allegations support a
reasonable inference that he acted outside of his professional
duties in each instance.16 At the motion to dismiss stage, we
take Dahlia’s well-pleaded factual allegations as true. On
remand, the parties will have an opportunity to conduct
discovery as to Dahlia’s professional duties. Nonetheless, it
is within our wheelhouse to reject, as implausible, allegations
that are too speculative to warrant further factual
development. Twombly, 550 U.S. at 570.17



 15
   We decline to adopt as binding law a passing reference made by some
of the Garcetti dissenters. O’Scannlain Concurrence at 62 (quoting
Garcetti, 547 U.S. at 433 (Souter, J., dissenting)).
 16
    As discussed supra, we find it evident that Dahlia’s speech addressed,
in each instance, a matter of public concern.
  17
     Were this case at the summary judgment stage and the undisputed
facts enabled us to conclude whether Dahlia spoke pursuant to his job
duties, then we could perform the “screening” role that Judge O’Scannlain
                      DAHLIA V. RODRIGUEZ                             33

                                   a.

    Dahlia initially disclosed the misconduct that he had
observed to defendant Lieutenant Murphy, the officer in
charge of the Porto’s robbery investigation, who told him to
“stop his sniveling.” Dahlia alleged that he met with Murphy
two additional times regarding the misconduct, pleading that
“the beatings have to stop.” Even construing the facts and
drawing all inferences in Dahlia’s favor, the only reasonable
conclusion is that Dahlia acted pursuant to his job duties
when he—as a detective investigating the Porto’s robbery and
prior to receiving any threats or orders to the
contrary—reported up the chain of command to the
supervising lieutenant overseeing the investigation about
abuse related to that same investigation.18 That Murphy
appears to have ignored Dahlia’s initial report does not
convert into protected speech Dahlia’s later reports to the
same supervisor. See Freitag, 468 F.3d at 545–46.19


exhorts us to play. O’Scannlain Concurrence at 59. At the pleading stage,
our role is more limited.
 18
    By reporting to Murphy, a lieutenant, and not the sergeant leading the
investigation, Penaranda, Dahlia likely skipped one level in the chain of
command. This ambiguity is not sufficient to cast doubt on our
conclusion here, where Dahlia specifically alleged that Murphy “oversaw
the entire Porto’s robbery investigation,” and Penaranda—Dahlia’s direct
supervisor—was the subject of Dahlia’s report.
  19
     Judge Pregerson argues lucidly why the First Amendment should
protect a police whistleblower who defies his superiors’ attempts to
silence him. See generally Pregerson Concurrence. As we conclude,
supra in III.A.4., when a public employee speaks in direct contravention
to his supervisor’s orders, that speech may often fall outside of the
speaker’s professional duties. Here, however, Dahlia reported the
misconduct to Murphy prior to being subjected to his superiors’ threats
34                    DAHLIA V. RODRIGUEZ

                                   b.

    Dahlia subsequently met with BPD’s Internal Affairs
officers three times. He alleged that he was harassed and
threatened not to report any misconduct in anticipation of and
following each meeting. Conspicuously, Dahlia does not
allege that he actually disclosed any misconduct during his
interviews with IA.

    In meeting with the IA officers, Dahlia does not allege
that he acted in contravention of his supervisors’ orders.
Dahlia does not allege that anyone ever instructed him not to
meet with IA, but only that supervisors threatened him not to
say anything when interviewed. Because Dahlia appears to
have done precisely what his superiors wanted him to
do—that is, meet with IA but stay mum—we cannot say that
Dahlia acted in contravention of their orders.

    Nonetheless, Dahlia may very well have acted outside his
chain of command when he met with IA. Although Dahlia
did not explicitly allege that he acted outside his professional
duties when he met with IA, this is not dispositive because we
must draw all reasonable inferences in his favor. It is
possible that Dahlia’s professional duties required him to
meet with IA at IA’s insistence, but it is also plausible that
Dahlia’s act of meeting with IA was outside his job duties for
the purpose of the First Amendment. At this stage of the
proceedings, where, as here, there is no allegation regarding
a BPD officer’s duties with respect to meeting and
cooperating with IA, we must resolve the ambiguity in
Dahlia’s favor. Drawing this inference in Dahlia’s favor, we


and intimidation and therefore could not have been acting in contravention
of them.
                      DAHLIA V. RODRIGUEZ                             35

conclude that Dahlia has adequately alleged that his meetings
with IA are protected by the First Amendment.

                                   c.

     After word had spread that the FBI might be investigating
BPD, Rodriguez allegedly called Dahlia into his office and
threatened to “put a case on” him and put him “in jail.”
Dahlia alleged that he reported this incident to the Burbank
Police Officers’ Association president, who in turn reported
it to the city manager.20 As with his other acts, Dahlia does
not specifically allege that he acted outside his job duties
when he reported the incident, nor that the retaliation he faced
was directly caused by this act of reporting. Nonetheless,
guided by the principles articulated above and drawing all
reasonable inferences in Dahlia’s favor, we conclude that
Dahlia’s report to his police union constituted protected
speech. At this stage in the proceedings, it is reasonable to
infer that Dahlia did not have a duty to report threats to his
union, which constitutes a separate entity from BPD.

                                   d.

    Ultimately, Dahlia disclosed the defendants’ misconduct,
threats, and harassment to LASD when interviewed about the
Porto’s robbery investigation.21 In doing so, Dahlia clearly

      20
      This is not merely an “employee beef: management has acted
incompetently,” Handy-Clay, 695 F.3d at 540; rather, the alleged threat
and attempt to stifle an investigation into police misconduct is clearly a
matter of great public concern, see Thomas, 379 F.3d at 809.
 21
    In his briefs on appeal, Dahlia also referenced disclosing information
to the FBI, but there are no allegations in the complaint that Dahlia ever
spoke with, let alone disclosed anything to, federal agents.
36                      DAHLIA V. RODRIGUEZ

spoke outside the chain of command and, indeed, to an
outside agency altogether. Whether Dahlia ultimately acted
pursuant to his job duties when he disclosed misconduct to
LASD may well turn on whether discovery reveals that
Dahlia’s supervisors instructed him to meet with and disclose
information to LASD or in fact Dahlia did so of his own
volition. Construing the complaint in Dahlia’s favor, his
disclosure to LASD is protected by the First Amendment.

                B. Adverse Employment Action

    The district court dismissed Dahlia’s suit on the
alternative ground that placement on administrative leave is
not an adverse employment action. We disagree. We
conclude that, under some circumstances, placement on
administrative leave can constitute an adverse employment
action.22 Moreover, we conclude that Dahlia sufficiently

 22
    The district court also found that Dahlia failed to allege that any of the
individual defendants, other than Chief Stehr, caused him to be placed on
administrative leave or to suffer any other adverse employment
consequence. To the extent that the particular threats and harassment by
Penaranda and Rodriguez can constitute adverse employment actions, we
disagree. Dahlia has alleged as clearly as possible, pointing to specific
instances, that both defendants threatened and harassed him in an attempt
to silence him. With respect to Dahlia’s placement on administrative
leave, on remand Dahlia may seek leave to amend his complaint to clarify
his allegations. We note that “‘personal participation is not the only
predicate for section 1983 liability. Anyone who “causes” any citizen to
be subjected to a constitutional deprivation is also liable.’” Gilbrook v.
City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999) (quoting Johnson
v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). The “‘requisite causal
connection can be established not only by some kind of direct personal
participation in the deprivation, but also by setting in motion a series of
acts by others which the actor knows or reasonably should know would
cause others to inflict the constitutional injury.’” Id. (quoting Johnson,
588 F.2d at 743–44).
                      DAHLIA V. RODRIGUEZ                             37

alleged additional acts that could also constitute adverse
employment actions.23

    “To constitute an adverse employment action, a
government act of retaliation need not be severe and it need
not be of a certain kind. Nor does it matter whether an act of
retaliation is in the form of the removal of a benefit or the
imposition of a burden.” Coszalter v. City of Salem, 320 F.3d
968, 975 (9th Cir. 2003). In Coszalter, we said that, in First
Amendment retaliation cases, “[t]he goal is to prevent, or
redress, actions by a government employer that ‘chill the
exercise of protected’ First Amendment rights.” Id. at
974–75 (quoting Rutan v. Republican Party of Ill., 497 U.S.
62, 73 (1990)). Therefore, we held that the proper inquiry is
whether the action is “reasonably likely to deter employees
from engaging in protected activity.” Id. at 976 (internal
quotation marks omitted); see also id. (holding that “if the
plaintiffs in this case can establish that the actions taken by
the defendants were ‘reasonably likely to deter [them] from
engaging in protected activity [under the First Amendment],’
they will have established a valid claim under § 1983”
(alterations in original)).

    We have not previously decided whether placement on
administrative leave constitutes an adverse employment
action. See Lakeside–Scott v. Multnomah County, 556 F.3d
797, 803 n.7 (9th Cir. 2009) (noting that “being placed on

 23
    In his opposition to defendants’ motions to dismiss, Dahlia requested
leave to amend his complaint. In light of its ruling that Huppert
controlled, the district court never addressed Dahlia’s requests for leave
to amend, apparently because any amendment would have been futile. On
remand, in the event that Dahlia renews his request to amend his
complaint, the district court should grant him leave to clarify his
allegations.
38                 DAHLIA V. RODRIGUEZ

administrative leave might qualify as an adverse employment
action” but declining to reach the issue because it had not
been properly preserved for appeal).                  Dahlia’s
assertions—that administrative leave prevented him from
taking the sergeant’s exam, required him to forfeit on-call and
holiday pay, and prevented him from furthering his
investigative experience—if proved, would constitute an
adverse employment action. The inability to take a
promotional exam, loss of pay and opportunities for
investigative experience, as well as the general stigma
resulting from placement on administrative leave appear
“reasonably likely to deter employees from engaging in
protected activity.” Coszalter, 320 F.3d at 976.

    Dahlia made other allegations of conduct that may also
constitute an adverse employment action. “Various kinds of
employment actions may have an impermissible chilling
effect. Depending on the circumstances, even minor acts of
retaliation can infringe on an employee’s First Amendment
rights.” Id. at 975. Dahlia alleged that Rodriguez threatened
to “put a case” on him and to put him “in jail.” These threats,
if true, were made with the specific purpose of chilling
Dahlia’s speech, and they appear “reasonably likely to deter”
employees from speaking about misconduct observed within
the BPD. Indeed, if it is true that Dahlia did not disclose
what he knew when interviewed by IA, the chilling effect was
in fact achieved, albeit for a limited time. The same might be
said of Rodriguez’s alleged stunt in the park—calling Dahlia
to the scene of a purported crime only to confront him with
another officer and threaten him to stay silent. With further
factual development, the same might also be true of the
ongoing harassment and threats that Dahlia suffered from
Rodriguez, Penaranda and other officers.
                        DAHLIA V. RODRIGUEZ                                 39

    We note that in the Title VII context—from which the
Coszalter standard is derived—courts have found that far less
serious actions were sufficient to deter a reasonable employee
from engaging in protected speech. See Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 70–71 (2006)
(concluding that a change in work assignment within the
same job description would have deterred a reasonable
employee from making a charge of discrimination); Brooks
v. City of San Mateo, 229 F.3d 917, 928–29 (9th Cir. 2000)
(noting that “termination, dissemination of a negative
employment reference, issuance of an undeserved negative
performance review and refusal to consider for promotion”
constitute adverse employment actions, whereas “declining
to hold a job open for an employee and badmouthing an
employee outside the job reference context” do not). Threats
to put someone in jail or that cause an employee to fear for
his own safety easily exceed the “reasonably likely to deter”
standard. Construing the allegations in the light most
favorable to Dahlia, we conclude that he has sufficiently
stated that he suffered adverse employment actions.24


  24
    This step of the Eng test has a sub-element that is not at issue in this
appeal: whether the plaintiff’s speech was a substantial or motivating
factor in the adverse employment action. That issue was not raised in the
briefs, and we do not reach it. See Butler v. Curry, 528 F.3d 624, 642 (9th
Cir. 2008). We note only that although much of the alleged harassment
preceded Dahlia’s ultimate disclosure to LASD, such chronology does not
necessarily weigh against a finding that the harassment was an adverse
employment action meant to discourage Dahlia from reporting the
misconduct to others. In other words, insofar as the harassment was
intended to chill Dahlia’s protected speech, it may qualify as an adverse
employment action. See, e.g., Allen v. Scribner, 812 F.2d 426, 434 n.17
(9th Cir.) (noting in a First Amendment § 1983 retaliation case that a valid
claim can be stated “[w]here comments of a government official can
reasonably be interpreted as intimating that some form of punishment or
adverse . . . action will follow the failure to accede to the official’s request
40                    DAHLIA V. RODRIGUEZ

                       IV. CONCLUSION

    We overrule Huppert v. City of Pittsburg and hold that
Dahlia has sufficiently stated a claim pursuant to 42 U.S.C.
§ 1983, namely that he was retaliated against for his protected
speech. We remand to the district court for further
proceedings consistent with this opinion.

     REVERSED AND REMANDED.



PREGERSON, Circuit Judge, specially concurring:

    Burbank Police Department Detective Angelo Dahlia
witnessed his fellow police officers physically abuse suspects
in custody during a high profile robbery investigation.1
Among other acts of misconduct, Detective Dahlia saw
Lieutenant Rodriguez grab a suspect by the throat and
threaten him by placing a gun under his eye. Detective
Dahlia also witnessed Sergeant Penaranda repeatedly punch
a suspect.

   When Detective Dahlia reported these acts of misconduct
to Lieutenant Murphy, his superior officer, Murphy told
Dahlia to “stop his sniveling.” When Dahlia persisted with


[that the employee curtail his first amendment rights]” (second alteration
omitted in original) (internal quotation marks omitted)), amended,
828 F.2d 1445 (9th Cir. 1987).
 1
  Because Dahlia’s case was dismissed on a motion to dismiss, we treat
Dahlia’s allegations in his complaint as true in reviewing his claim. See
Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).
                   DAHLIA V. RODRIGUEZ                     41

his complaints, Murphy told him he “didn’t want to hear this
shit again.” Before and then after Dahlia was interviewed by
Internal Affairs, Lieutenant Rodriguez and Sergeant
Penaranda, his superior officers, threatened and intimidated
him.

   After the FBI became involved, Lieutenant Murphy told
Detective Dahlia that “[t]he Feds are doing an investigation
and heads are going to roll. Don’t say anything.” Sergeant
Penaranda likewise instructed Dahlia, “It’s gonna be bad.
You can’t say anything.” Lieutenant Rodriguez admonished
Detective Dahlia “not to talk to the feds.” He also warned
Dahlia, “Fuck with me and I will put a case on you, and put
you in jail.”

    Detective Dahlia reported Lieutenant Rodriguez’s threats
to the Burbank Police Officers’ Association. Dahlia
disclosed all of the officers’ unlawful misconduct to the Los
Angeles County Sheriff’s Department. Shortly thereafter,
Dahlia was placed on administrative leave.

    Dahlia filed a complaint under 42 U.S.C. § 1983 for First
Amendment retaliation. I hold to the view that all of Dahlia’s
speech that reported unlawful acts by his fellow officers is
protected under the First Amendment from retaliation by his
superior officers at the Burbank Police Department.

I. Garcetti’s Limitation on Speech Made Pursuant to
   Official Duties Does Not Apply to Dahlia’s Reports of
   Police Abuse.

    I agree with the majority opinion that Detective Dahlia’s
speech that reported police abuse is without a doubt a matter
of public concern. Maj. Op. at 14. I respectfully disagree
42                 DAHLIA V. RODRIGUEZ

with the majority on how Garcetti v. Ceballos, 547 U.S. 410
(2006) applies to this case. The majority opinion tells us that
under Garcetti, “[e]ven construing the facts and drawing all
inferences in Dahlia’s favor, the only reasonable conclusion
is that Dahlia acted pursuant to his job duties when he—as a
detective investigating the Porto’s robbery and prior to
receiving any threats or orders to the contrary—reported up
the chain of command to the supervising lieutenant
overseeing the investigation about abuse related to that same
investigation.” Maj. Op. at 33. Thus, Dahlia’s speech that
reported up the chain of command is not protected by the
First Amendment against public employer retaliation. But
according to the majority opinion, Dahlia’s speech that
reported police abuse outside the chain of command to
Internal Affairs, the Burbank Police Officers’ Association,
and the Los Angeles Sheriff’s Department, was not within his
official duties and is protected under the First Amendment
against public employer retaliation. Maj. Op. at 34–36. In
my view, the majority opinion misapplies Garcetti to
Dahlia’s speech reported up the chain of command.

    In Garcetti, the public employee, Richard Ceballos, was
a deputy district attorney who was expected “to advise his
supervisor about how best to proceed with a pending case.”
Garcetti, 547 U.S. at 421. To fulfill that duty, Ceballos wrote
a memo that recommended that a pending criminal case be
dismissed. Id. at 414, 421. In the memo, Ceballos stated his
opinion that an affidavit used to obtain a warrant contained
misrepresentations. Id. at 414. Ceballos’s supervisors
reviewed his memo, discussed it, disagreed with its
recommendation, and went forward to prosecute the case. Id.
at 414–15, 423. The Supreme Court held that “the memo was
written pursuant to Ceballos’s official duties.” Id. at 421–24.
                   DAHLIA V. RODRIGUEZ                       43

Thus, Ceballos could not base a First Amendment retaliation
claim on the memo. Id.

   Garcetti’s restriction on First Amendment protection for
public employee’s speech pursuant to their official duties
does not apply to Dahlia for three reasons: (1) Dahlia’s
superior officers restricted Dahlia’s speech so that they could
cover up unlawful conduct; (2) Dahlia’s superiors forbade
Dahlia from reporting the police abuse; and (3) Dahlia’s
superiors sought only to silence Dahlia’s speech.

    First, Garcetti did not give public employers an unlimited
right to restrict the speech of their public employees.
“Employees in some cases may receive First Amendment
protection for expressions made at work.” Garcetti, 547 U.S.
at 420. Garcetti held that when public employees speak on
matters of public concern, they “must face only those speech
restrictions that are necessary for their [public] employers to
operate efficiently and effectively.” Id. at 419. To that end,
Garcetti explained that speech made pursuant to official
duties is speech that public employees express when carrying
out routine functions. Id. at 421–23. The purpose of
Garcetti’s restriction is to ensure that courts do not supervise
a government employer’s day-to-day operations. Id. at
420–23.

    In contrast, Dahlia’s superior officers restricted Dahlia’s
speech to cover up blatantly unlawful conduct. Such conduct
has no connection to the government’s legitimate efforts to
run efficient and effective routine operations at issue in
Garcetti. Thus, Dahlia’s superiors’ unlawful efforts are not
the type of government operations that Garcetti seeks to
insulate from judicial review. Id. at 421–22; Tenn. Secondary
Sch. Athletic Ass’n v. Brentwood Acad., 551 U.S. 291, 300
44                    DAHLIA V. RODRIGUEZ

(2007) (citing Garcetti and holding that an athletic
association, like a public employer, can “impose only those
conditions on . . . speech [concerning matters of public
concern] that are necessary to managing an efficient and
effective state-sponsored high school athletic league”).

    Second, Garcetti instructs us that as a “practical” matter,
an official duty is a task that the “employee actually is
expected to perform.” Garcetti, 547 U.S. at 424–25. It
makes no sense to permit the Burbank Police Department to:
(1) forbid Dahlia from reporting police abuse; and then (2)
claim that the forbidden reporting was part of his official
duties, and thus, not subject to First Amendment protection
against retaliation.

    Third, Garcetti emphasized that public employers must be
able to evaluate official communications to ensure that they
reflect “substantive consistency and clarity,” and are
“accurate, demonstrate sound judgment, and promote the
[public] employer’s mission.” Id. at 422–23. None of this
happened here. Dahlia’s superior officers made no effort to
evaluate Dahlia’s speech for consistency, clarity, or
conformity with a legitimate employer mission. Nor did
Dahlia’s superiors raise any concern with the veracity or
accuracy of Dahlia’s speech. Instead, Dahlia’s superiors
sought only to silence his speech.

    For these reasons, Garcetti’s bar on First Amendment
protection for speech made pursuant to official duties does
not apply to Dahlia’s reports of police abuse.2 Therefore


  2
    Contrary to the majority opinion’s suggestion, my analysis does not
hinge on whether Detective Dahlia defied his superior officers’ orders, it
is based solely on the unlawful conduct of his superior officers. Maj. Op.
                       DAHLIA V. RODRIGUEZ                             45

Dahlia’s reports, a matter of public concern, are protected by
the First Amendment from public employer retaliation.
Garcetti, 547 U.S. at 420, 424; Connick v. Myers, 461 U.S.
138, 149 (1983) (finding that an assistant district attorney’s
inquiry to coworkers made at work, that “touch[ed] upon a
matter of public concern,” constituted protected speech).

II. The Majority’s Chain of Command Guidelines Lead
    to a Vexing Result in the Context of Police Abuse.

    The practical reality is that quite a few police officers are
reluctant to report acts of police abuse committed by their
fellow officers. The “‘officer code of silence’” describes the
understanding that “‘an officer does not provide adverse
information against a fellow officer.’” Cunningham v. Gates,
229 F.3d 1271, 1283 n.19 (9th Cir. 2000) (quoting Report of
the Independent Commission on the Los Angeles Police
Department at 168 (1991)). The public’s trust is diminished
when a law enforcement officer abides by the code of silence
to cover up misconduct engaged in by fellow officers.3 To


at 33 n.19. Accordingly, Garcetti’s restriction should not apply to
Detective Dahlia’s reports of police abuse made to Lieutenant Murphy.
From the outset, (1) Lieutenant Murphy restricted Dahlia’s speech so that
he could cover up unlawful conduct; (2) Lieutenant Murphy forbade
Dahlia from reporting the police abuse; and (3) Lieutenant Murphy sought
only to silence Dahlia’s speech.
  3
      See, e.g., Brandon v. Holt, 469 U.S. 464, 467 (1985) (noting district
court’s finding that “[d]ue to a code of silence induced by peer pressure
. . . , few—if any—formal complaints were ever filed by police personnel”
(internal quotations marks omitted)); Blair v. City of Pomona, 223 F.3d
1074, 1080 (9th Cir. Cal. 2000) (holding “evidence, if believed by the
jury, would be sufficient to establish that the [Police] Department had the
custom of chastising whistleblowers” and that officials in the Police
Department “were aware of the police code of silence”); Matt Pearce, Jury
46                      DAHLIA V. RODRIGUEZ

strengthen the public’s confidence in the integrity of its law
enforcement officers, it is essential that an officer be
encouraged or required to report misconduct committed by
fellow officers.

    The majority’s chain of command guidelines undermine
policies that require law enforcement officers to report police
abuse up the chain of command. Under the majority
opinion’s approach, a police officer who complies with his
duty and reports unlawful acts to his superiors, and as a
consequence is fired for his speech, has no First Amendment
protection. In contrast, a police officer who reports unlawful
acts to the news media, and as a consequence is fired for his
speech, is shielded by the First Amendment.4 Police officers
are trapped in a Catch 22: violate their duty to report up the
chain of command or expose themselves to retaliation. A
police officer who witnesses police abuse may turn a blind
eye to avoid either consequence. This outcome “chills the


Rules Chicago Police ‘Code of Silence’ Protected Felon Cop, LOS
ANGELES TIMES, Nov. 14, 2012 (“A pervasive culture of silence in the
Chicago Police Department led officers to try to cover up the brutal 2007
bar beating of a 115-pound bartender by a 225-pound off-duty officer, a
federal jury has decided.”); John Hagedorn et al., Crime, Corruption and
Cover-ups in the Chicago Police Department, 2013 UNIV. OF ILL. AT CHI.
DEP’T OF POLITICAL SCIENCE, ANTI-CORRUPTION REPORT NO. 7, at 1
(“The ‘blue code of silence,’ while difficult to prove, is an integral part of
the department’s culture and it exacerbates the corruption problems.”).
     4
        As we have recognized, “[i]n the context of ‘good faith
whistleblowing’ involving reports within a government department rather
than to the public, ‘the breadth of one’s audience is irrelevant’ because
‘[i]t would be absurd to extend First Amendment protection only to those
whistleblowers who immediately appear on the local news.’” Robinson v.
York, 566 F.3d 817, 824 (9th Cir. 2009) (quoting Hufford v. McEnaney,
249 F.3d 1142, 1150 (9th Cir. 2001)).
                       DAHLIA V. RODRIGUEZ                             47

speech of potential whistleblowers in a culture that is already
protective of its own.” Dahlia v. Rodriguez, 689 F.3d 1094,
1104 (9th Cir. 2012). Garcetti does not require this untenable
result.

III.     Conclusion.

    I agree with the majority opinion that Detective Dahlia
stated a claim under 42 U.S.C. § 1983 for First Amendment
retaliation.5 But for the foregoing reasons, I believe that
Dahlia’s claim may be based on all of his speech that reported
police abuse, whether reported up the chain of command or
outside the chain of command.



O’SCANNLAIN, Circuit Judge, with whom KOZINSKI,
Chief Judge, joins, concurring only in the judgment:

    Seven years ago, the Supreme Court counseled us that we
had “misconceive[d] the theoretical underpinnings” of First
Amendment retaliation law. Garcetti v. Ceballos, 547 U.S.
410, 423 (2006). I respectfully dissent from the majority’s
analysis because our court makes the same error today by
rejecting what California law tells us about the professional
duties of that state’s police officers. Furthermore, I fear that
today’s new approach will lead to “judicial intervention in the
conduct of governmental operations to a degree inconsistent
with sound principles of federalism and the separation of


   5
      I agree with the majority’s analysis and conclusion that Dahlia
sufficiently stated an adverse employment action. The remaining
requirements of Eng v. Cooley are not at issue in this appeal. See 552 F.3d
1062, 1070 (9th Cir. 2009).
48                 DAHLIA V. RODRIGUEZ

powers.” Id. Federal courts have no business managing the
daily activities of police departments.

                               I

    We reheard this case en banc to consider whether Huppert
v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009), should
remain good law. That case called on us to apply Garcetti’s
holding that “when public employees make statements
pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes” to a
lawsuit brought by a California police officer. 547 U.S. at
421. We determined that the duty of California law
enforcement officers to report criminal activity meant that the
officer’s reports of police misconduct internally, as well as to
the FBI, did not qualify as protected “citizen-speech.”
Although I might not preserve every line of that opinion, at its
core, Huppert got Garcetti right. Two key insights emerge
from that case that help illustrate how the majority in this
case has gone off track.

    First, Huppert correctly appreciated that the Garcetti-
inquiry is no trifle. Id. at 702–03. Like Connick v. Myers,
461 U.S. 138 (1983), which asks whether a public employee’s
speech is on a matter of public concern, Garcetti delineates
the First Amendment’s very scope. Put differently, the
speech at issue “must not be expression on-the-job and within
the scope of the employee’s duties; if it is, there is no First
Amendment protection for the speech.” Erwin Chemerinsky,
Constitutional Law: Principles and Policies 1151 (4th ed.
2011). Instead, a would-be plaintiff’s remedy usually lies in
                       DAHLIA V. RODRIGUEZ                               49

“the powerful network of legislative enactments” that protect
whistleblowers. Garcetti, 574 F.3d at 425.1

    Second, Huppert understood that with the “pursuant-to-
official-duties” test, the Garcetti Court was charting a clear
course that distinguished between citizen-speech and
employee-speech. See 574 F.3d at 702.2 There, the Supreme
Court explained that

          [the plaintiff] did not act as a citizen when he
          went about conducting his daily professional
          activities, such as supervising attorneys,
          investigating charges, and preparing filings.
          In the same way he did not speak as a citizen


  1
    The lack of a constitutional action may sometimes be for the best, as
this “complicated employment law issue . . . is much better suited for a
legislative solution.” John Q. Mulligan, Note, Huppert, Reily, and the
Increasing Futility of Relying on the First Amendment to Protect
Employee Speech, 19 Wm. & Mary. Bill Rts. J. 449, 456 (2010). Many
questions arise, such as “what types of complaints should be protected,
whether internal or external whistleblowing should be protected, and what
types of employer responses should be punished.” Id. at 468.
      2
     The dissenters in Garcetti, as well the academic literature since,
recognize the bright-line nature of the inquiry. See, e.g., Garcetti,
547 U.S. at 432 (Souter, J., dissenting) (majority “categorically separat[es]
the citizen’s interest from the employee’s interest”); id. at 427 (Stevens,
J., dissenting) (similar); id. at 446 (Breyer, J., dissenting) (majority
approach described as “absolute”); Chemerinsky, supra, at 1147
(describing Garcetti as “a categorical exception from constitutional
protection for speech which is on the job in the scope of the employee’s
duties”); Caroline A. Flynn, Note, 111 Mich. L. Rev. 759, 761 (2013)
(Garcetti “replaced the balancing framework with a bright-line rule”);
Monique Alexandra Bair, Garcetti v. Ceballos: Swapping The First
Amendment Rights of Public Employees for Greater Government Control,
37 Rutgers L. Rec. 44, 52–55 (2010) (same).
50                DAHLIA V. RODRIGUEZ

       by writing a memo that addressed the proper
       disposition of a pending criminal case. When
       he went to work and performed the tasks he
       was paid to perform, [he] acted as a
       government employee.

Garcetti, 547 U.S. at 422. The consequence of the
citizen/employee dichotomy is that protection in the
workplace is to be the exception—not at all the rule. See,
e.g., id. at 420 (“Employees in some cases may receive First
Amendment protection for expressions made at work”)
(emphasis added); Morales v. Jones, 494 F.3d 590, 598 (7th
Cir. 2007) (noting that “the purpose of Garcetti was to allow
government employers greater influence over speech that
owes it[s] existence to a public employee’s professional
responsibilities”).

    With its decision to discard Huppert, and with its newly-
minted “guiding principles” for identifying protected speech,
the majority opinion reopens doors that Garcetti slammed
shut. See Maj. Op. at 21, 28–32.

                              II

                              A

    I cannot agree that “the Huppert majority failed to heed
Garcetti’s mandate” about a practical inquiry by taking stock
of California courts’ “description of a California police
officer’s professional duties.” Maj. Op. at 21. Here is the
entirety of what the Supreme Court said on this issue:

       Two final points warrant mentioning. First, as
       indicated above, the parties in this case do not
                     DAHLIA V. RODRIGUEZ                            51

        dispute that Ceballos wrote his disposition
        memo pursuant to his employment duties. We
        thus have no occasion to articulate a
        comprehensive framework for defining the
        scope of an employee’s duties in cases where
        there is room for serious debate. We reject,
        however, the suggestion that employers can
        restrict employees’ rights by creating
        excessively broad job descriptions. See post,
        at 1965, n.2 (SOUTER, J., dissenting). The
        proper inquiry is a practical one. Formal job
        descriptions often bear little resemblance to
        the duties an employee actually is expected to
        perform, and the listing of a given task in an
        employee’s written job description is neither
        necessary nor sufficient to demonstrate that
        conducting the task is within the scope of the
        employee’s professional duties for First
        Amendment purposes.3

Garcetti, 547 U.S. at 424. This passage appears near the end
of the opinion, after the Court announced its conclusion of
law and after it applied that holding to the plaintiff’s facts.
Id. at 420–22. It is written as a rejoinder to the principal
dissent’s worry that “one response to the Court’s holding will
be moves by government employers to expand stated job
descriptions to include more official duties and so exclude
even some currently protectable speech from First
Amendment purview.” Garcetti, 547 U.S. at 431 n.2 (Souter,
J., dissenting).


 3
   The second point the Court made is that the Garcetti analysis should
not uncritically be applied when academic freedom is involved. See
547 U.S. at 425.
52                 DAHLIA V. RODRIGUEZ

     Read in context, this practical-inquiry passage simply
directs us not to engage in a stilted or excessively formulaic
inquiry. On the one hand, the Court is explaining that the sort
of gamesmanship Justice Souter feared is not to be tolerated.
On the other hand, the Garcetti Court is explaining (as
cogently expressed by the Sixth Circuit) that “[s]peech by a
public employee made pursuant to ad hoc or de facto duties
not appearing in any written job description is nevertheless
not protected if it owes its existence to the speaker’s
professional responsibilities.” Fox v. Traverse City Area
Pub. Sch. Bd. of Educ., 605 F.3d 345, 348 (6th Cir. 2010)
(alteration and internal quotation marks omitted). The
prototypical examples of protected speech are “writing a
letter to a local newspaper, as the teacher-plaintiff did in
Pickering” and “discussing politics with a co-worker.” Foley
v. Randolph, 598 F.3d 1, 6 (1st Cir. 2010) (discussing
Garcetti, 547 U.S. at 423). In Garcetti, the plaintiff did not
engage in these types of actions; instead he “spoke as a
prosecutor.” 547 U.S. at 421. That speech was unprotected
because “[w]hen a public employee speaks pursuant to
employment responsibilities” there generally is not a
“relevant analogue to speech by citizens who are not
government employees.” Id. at 424.

    In the case before us, we confront what it means to speak
as a police officer. I would not interpret the Supreme Court’s
caution against formalism—the “practical-inquiry” passage
from Garcetti—as an obstacle to our evaluating a public-
employee plaintiff’s case against the backdrop of legal and
professional norms. See, e.g., Tamayo v. Blagojevich,
526 F.3d 1074 (7th Cir. 2008) (taking notice, in reviewing a
motion to dismiss, of the oversight responsibilities of a state
legislative committee and of the duties of the administrator of
the gaming board); Foley, 598 F.3d at 4 (considering
                    DAHLIA V. RODRIGUEZ                        53

Massachusetts General Laws ch. 48 § 42, which spells out a
fire department chief’s “powers and duties,” as well as the
specific contract that governed the chief’s employment).

                                B

                                1

    California courts tell us that, “[u]nlike civilians,” that
state’s police officers are “expected to prevent others from
committing crimes, to assist in the investigation of crime, and
to use their law enforcement authority to maintain the trust of
the public in its criminal justice system.” People v. Owens,
69 Cal. Rptr. 2d 428, 430–31 (Ct. App. 1997) (upholding a
District Attorney’s decision to single out an off-duty police
officer for prosecution for engaging in a pyramid scheme
because, in contrast to his civilian confederates, he had
“failed to discharge” the “special obligations” of his office).

    This principle was first articulated in the canonical case
of Christal v. Police Commission of City and County of San
Francisco, 92 P.2d 416 (Cal. Ct. App. 1939). See also Titus
v. Los Angeles Cnty. Civil Serv. Comm’n, 181 Cal. Rptr. 699,
703 (Ct. App. 1982) (stating that Christal “enunciated the
role of a law enforcement officer.”). “Among the duties of
[California] police officers” is the responsibility to disclose
“all information known to them which may lead to the
apprehension and punishment of those who have
transgressed” their state’s laws. Christal, 92 P.2d.at 419.
The case further explained that “[w]hen police officers
acquire knowledge of facts which will tend to incriminate any
person, it is their duty to disclose such facts to their superiors
and to testify freely concerning such facts when called upon
to do so before any duly constituted court or grand jury.” Id.
54                      DAHLIA V. RODRIGUEZ

Christal went so far as to say that “[i]t is for the performance
of these duties that police officers are commissioned and paid
by the community.” Id. (emphasis added); compare with
Garcetti, 547 U.S. at 422 (explaining that when the plaintiff
“performed the tasks he was paid to perform” he had “acted
as a government employee” (emphasis added)). Dahlia has
not marshaled any authority undermining Huppert’s
conclusion that police officers still have these obligations
when speaking to external law enforcement agencies, such as
the county sheriff or FBI. See 574 F.3d at 707.4

   My colleagues deride these duties as either relics of a
bygone era or judicial musing too naive to credit. See Maj.
Op. at 20 n.9 (the “passage from Christal relied upon by the


  4
    California law, in fact, suggests just the opposite. In one case, an
Alhambra Police Department Officer who had sexually harassed a
motorist went to his union representative for help in dealing with the Los
Angeles Sheriff’s Department investigation into his misconduct.
Alhambra Police Officers Ass’n v. City of Alhambra Police Dep’t, 7 Cal.
Rptr. 3d 432, 434–35 (Ct. App. 2003). In that meeting, the officer
disclosed incriminating details; the union representative failed to pass
along evidence to his superiors and helped the officer retrieve a document
with the driver’s telephone number on it—a violation of several
department policies. Id. The California Court of Appeal found that the
union representative had an obligation to assist in bringing the officer’s
misconduct to light, based on Christal and its progeny. Obviously this
broad duty is part of the special responsibility of police and not something
characteristic to most other forms of public employment. See, e.g., Davis
v. McKinney, 518 F.3d 304, 316 (5th Cir. 2008) (explaining it was not
within a public university’s “auditor’s job function to communicate with
outside police authorities [such as the FBI] or other agencies [such as the
Equal Employment Opportunity Commission] in an investigation”);
Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006) (deciding that it was not
part of a correctional officer’s “official tasks to complain to [a] Senator or
the [Inspector General] about the state’s failure to perform its duties
properly”).
                   DAHLIA V. RODRIGUEZ                      55

Huppert majority reads like a civics textbook”). Yet the
California Government Code in force today states that public
safety officers may be ordered “to cooperate with other
agencies involved in criminal investigations [and] [i]f an
officer fails to comply with such an order, the agency may
officially charge him or her with insubordination.” Cal.
Gov’t Code § 3304. And, numerous California cases have
cited the Christal principle over the decades to express “the
all-important concept of the peculiar and delicate position
police officers hold in society.” Frazee v. Civil Serv. Bd. of
Oakland, 170 Cal. App. 2d 333, 335 (Ct. App. 1959). As the
City of Burbank has argued to us, in a wide variety of settings
the unique charge of those tasked with enforcing the criminal
laws has overridden other important rights. See, e.g., Titus,
181 Cal. Rptr. at 363–65 (demanding that officers forsake
attorney-client privilege in order “to cooperate in a criminal
investigation”); Riverside Cnty. Sheriff’s Dept. v. Zigman,
87 Cal. Rptr. 3d 358, 361–62 (Ct. App. 2008) (describing “a
law enforcement officer’s duty to report criminal activity to
his or her employer,” and explaining that the “statutory
privilege at issue in this case, must yield when [its] exercise
is inconsistent with the performance of the officer’s duties”).

    The majority also rejects this “court-created job
description applicable to every member of [the] profession”
by invoking the specter of employer gamesmanship. Maj.
Op. at 21. Given its seventy-plus year lineage, the California
police officer description of duty could not possibly be a
reaction to the Garcetti opinion. Cf. Garcetti, 547 U.S. at 431
n.2 (Souter, J., dissenting) (“I am pessimistic enough to
expect that one response to the Court’s holding will be moves
by government employers to expand stated job
descriptions. . . .”). More importantly, however, there are
legitimate reasons for California to have imposed admittedly
56                   DAHLIA V. RODRIGUEZ

exacting obligations on its police. Just as Caesar’s wife must
be above reproach, “peace officers have been held to a higher
standard than other public employees,” because that is
essential to “maintain the public’s confidence in its police
force.” Pasadena Police Officers Ass’n v. City of Pasadena,
797 P.2d 608, 611 (Cal. 1990) (“[T]he public expects peace
officers to be above suspicion of violation of the very laws
they are sworn to enforce” (internal quotation marks and
alterations omitted)).

                                 2

    Recently, the Supreme Court recalled that categorical
rules have the virtue of keeping “easy cases easy.” Florida
v. Jardines, 133 S. Ct. 1409, 1417 (2013). In that spirit, I
read Garcetti as fully compatible with a stated obligation of
California police officers to report crime—a subset of which
is to help expose and to assist in the investigation of crime
within their ranks.5 A California-police-officer plaintiff must
engage with “California’s jurisprudence defining such
duties.” Huppert, 574 F.3d at 707. After all, “the plaintiff
bears the burden of showing [his] speech was spoken in the
capacity of a private citizen and not a public employee.”
Eng, 552 F.3d at 1071.

    When as here, a court is called on to evaluate whether a
complaint states a First Amendment retaliation claim, it
should evaluate its plausibility against this legal landscape.
Cf. Morales, 494 F.3d at 598 (“[T]he Milwaukee Police
Department requires officers to report all potential crimes.


     5
     See Dahlia v. Rodriquez, 689 F.3d 1094, 1105 (9th Cir. 2012)
(characterizing Huppert’s rule as one under which “whistleblowing on
fellow officers is part of a police officer’s official duties”).
                   DAHLIA V. RODRIGUEZ                      57

By informing A.D.A. Chisholm of the allegations against
Chief Jones and Deputy Chief Ray, Morales was performing
that duty as well. Accordingly, his conversation with A.D.A.
Chisholm is not protected under the First Amendment after
Garcetti.”). In a similar vein, as mentioned above, the
Seventh Circuit considered whether a complaint stated a
claim for First Amendment retaliation in the context of state-
law duties:

       Ms. Tamayo’s testimony was given to the
       House Gaming Committee, a legislative
       committee responsible for overseeing the
       activities of the [Illinois Gaming Board], and
       her testimony involved the alleged
       wrongdoing of public officials in their
       attempts to encroach on the agency’s
       independence. As the Administrator of the
       agency, she had a duty to see that the law was
       administered properly. This responsibility
       encompassed a duty to bring alleged
       wrongdoing within her agency to the attention
       of the relevant public authorities—here, the
       House Gaming Committee.

Tamayo, 526 F.3d at 1091. That administrator sought to
“escape the strictures of Garcetti by including in her
complaint the conclusory legal statement that she acted ‘as a
citizen . . . outside the duties of her employment.’” Id. at
1092. Appropriately invoking Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), the court did not credit these
legal conclusions “couched as a factual allegation.” Id.

    Similarly, it would be up to a California police officer to
“plead[] factual content that allows the court to draw the
58                     DAHLIA V. RODRIGUEZ

reasonable inference that” his department imposes less
stringent crime-reporting duties on its employees than
California courts routinely acknowledge. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).6 He would need to put at issue that
his is a “case[] where there is room for serious debate.”
Garcetti, 547 U.S. at 424. Such application of Garcetti is
also in line with the rule that, in measuring the sufficiency of
a complaint, “the reviewing court [should] draw on its
judicial experience and common sense”; it is eminently
logical that officers have precisely the duty that California
courts claim they do. Iqbal, 556 U.S. at 679.7

    Assuming an officer’s “well-pleaded facts” do suggest
that Christal/Huppert are a poor fit for his circumstance, id.
at 679, then the case would proceed to summary judgment.
At that stage, evidence showing that his duties are truly
limited in the fashion he had alleged would need to be
proffered. Discovery generally will have unearthed the
relevant materials, and then the court would be free to discern
which statements, if any, fell outside the officer’s duties. See,
e.g., Brammer-Hoelter v. Twin Peaks Charter Acad.,
492 F.3d 1192, 1204–05 (10th Cir. 2007) (deciding at
summary judgment which statements by teachers passed and
failed Garcetti); Charles v. Grief, 522 F.3d 508, 513 n.17 (5th


   6
     An officer might do that by describing his employment contract, a
collective bargaining agreement, or a (formal or informal) policy limiting
his disclosure obligations.
 7
   Simply put, “[t]here is nothing startling in the conception that a public
servant’s right to retain his office or employment should depend upon his
willingness to forego his constitutional rights and privileges to the extent
that the exercise of such rights and privileges may be inconsistent with the
performance of the duties of his office or employment.” Christal, 92 P.2d
at 419.
                       DAHLIA V. RODRIGUEZ                      59

Cir. 2008) (considering the “factual circumstances
surrounding the speech at issue” to decide “whether Garcetti
applies”).

     The Court’s mission in Garcetti was to articulate a
“screening test a judge should apply” when a government
employee tried to invoke the First Amendment. See Garcetti,
547 U.S. at 445–46 (Breyer, J., dissenting). Concerned that,
in practice, not every police department in California expects
its officers to live up to the duties spelled out by its judiciary,
the majority decides to screen almost nothing. By contrast,
as I have explained, the approach faithful to Garcetti would
have been to preserve Huppert as the default presumption,
while also acknowledging the possibility that on occasion a
police officer might be able to avoid its application.

                                  III

    With utmost respect to my colleagues in the majority, I
find their “guiding principles” about implementing Garcetti
similarly untenable. Maj. Op. at 28.

    First, the majority decides that if “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.” Maj. Op. at 29.
By contrast, as California courts have made clear,8 the police
have a unique role in society that makes it inappropriate to
rely on case law involving other types of public employment
to decide that officers’ speech will be protected when
delivered “to persons outside the work place,” i.e., outside

 8
     See supra note 7 and accompanying text.
60                    DAHLIA V. RODRIGUEZ

their own police department. Id. at 28; cf. Kendall Turner,
Dahlia v. Rodriguez: A Chance to Overturn a Dangerous
Precedent, 65 Stan. L. Rev. Online 59, 63 (2012) (astutely
perceiving that “[i]f a janitor cleaning Dahlia’s station had
noted the same illegal interrogation tactics, he could
presumably enjoy First Amendment protection while
reporting them because his job did not require him to expose
illegal activity”).9

    The majority’s third “guiding principle”—an employee is
no longer carrying out his professional duties when he does
so in the face of a threat or directive by his supervisor to
break the law or protocol—follows the Second Circuit’s
misguided approach. See Jackler v. Byrne, 658 F.3d 225, 242
(2d Cir. 2011). Once again, the majority resorts to the
“practical-inquiry” passage for substantiation. Maj. Op. 31.
And once again, we “get[] Garcetti backwards.” Bowie v.
Maddox, 653 F.3d 45, 48 (D.C. Cir. 2011).

    There are two key problems with the Second Circuit’s
approach that our court adopts today. First, it conflates the
“adverse-action” element of a retaliation claim and the
“pursuant-to-official-duties” test. Subtly, the Jackler rule
allows concern for what happened to a particular plaintiff to
color the threshold question about job duties. See Bowie,
653 F.3d at 48 (“[I]t is not difficult to sympathize with the
Second Circuit’s dubious interpretation of Garcetti. The
police chief’s instruction to Jackler and the actions he ordered
Jackler to take were clearly illegal. But the illegality of a
government employer’s order does not necessarily mean the


  9
     I would not adopt the majority’s second principle concerning the
“subject matter” of speech for the same reason. Maj. Op. at 30. A police
officer is not “an average public employee.” Id.
                    DAHLIA V. RODRIGUEZ                       61

employee has a cause of action under the First Amendment
when he contravenes that order.”).

    Second, Jackler’s holding subverts Garcetti by not
applying the Court’s categorical rule that the protected-status
inquiry hinges on job duties, and job duties alone. Jackler
involved a police officer who witnessed his sergeant lose his
temper and unjustifiably strike an arrestee. 658 F.3d at
230–31. After the officer reported what had happened in a
supplemental report, the sergeant pressured him to substitute
his honest report for one “which contained false, incomplete
and misleading information.” Id. at 231. He refused, and
was fired. Id. at 232.

    In dismissing his claim under Garcetti, the district court
determined that it was “clear on the facts as alleged by
Jackler that he refused to withdraw or alter his truthful report
in the belief that the proper execution of his duties as a police
officer required no less.” Id. at 233. The Second Circuit did
not disagree that as a “police officer [he certainly] ha[d] a
duty not to substitute a falsehood for the truth.” Id. at 241.
But then, instead of applying “Garcetti’s employee-versus-
citizen rule,” the Second Circuit “created a significant
exception to it.” Caroline A. Flynn, Note, Policeman,
Citizen, or Both? A Civilian Analogue Exception to Garcetti
v. Ceballos, 111 Mich. L. Rev. 759, 775 (2013).

    Today’s en banc court simply borrows Jackler without
discussing its rationale; but as the D.C. Circuit has explained,
that case is indefensible. The Second Circuit reasoned that
Officer “Jackler’s refusal to comply with orders to retract his
truthful Report and file one that was false has a civilian
analogue and that Jackler [thus] was not simply doing his job
in refusing to obey those orders from the department’s top
62                     DAHLIA V. RODRIGUEZ

administrative officers and the chief of police.” Jackler,
658 F.3d at 241–42. The problem with this approach is that
while Garcetti did state that its abstract ambition was to
protect the kinds of speech for which there is a relevant
civilian analogue, 547 U.S. at 424, the Supreme Court
unambiguously settled on a categorical rule as opposed to the
potentially more calibrated (but also more subjective)
proposals floated in the trio of dissenting opinions. See
Bowie, 653 F.3d at 48 (“As all of the dissenting justices
recognized, Garcetti categorically denies recovery . . . to
plaintiffs who spoke pursuant to official duties.” (internal
quotation marks and alteration omitted)). The principal
dissent puts this matter as plain as can be, explaining that
“when a law enforcement officer expressly balks at a
superior’s order to violate constitutional rights he is sworn to
protect” the majority opinion places this “speaker[] beyond
the reach of First Amendment protection against retaliation.”
Garcetti, 547 U.S. at 433 (Souter, J., dissenting).10

    I would therefore adopt neither the majority’s “contrary-
to-orders” maxim nor its rule about “disclosures outside the
chain of command.”


  10
     Although the academic literature—some of which has been cited in
the briefs—has urged us to do otherwise, our duty is to apply Supreme
Court precedent fairly rather than whittle it away in a case with
sympathetic facts. See, e.g., Turner, supra, at 64 (“While lower courts are
of course not free to ignore Garcetti, they are free to—and should—take
a narrow view of what constitutes an employee’s ‘official duties.’”); id. at
63 (“Of course, the fundamental problem may be with Garcetti itself
rather than Huppert.”); Flynn, supra, at 772 (although disposed to the
dissenting view as a policy matter, conceding, “in agreement with the D.C.
Circuit, that the Second Circuit misapplied Garcetti in Jackler: a civilian
analogue exception does not follow from either the language or the logic
of that decision”).
                   DAHLIA V. RODRIGUEZ                       63

                              IV

    Remaining now is the application of the foregoing
framework to Dahlia’s complaint.

                               A

                               1

    As for Dahlia’s report to Internal Affairs (“IA”), the
majority states “[i]t is possible that Dahlia’s professional
duties required him to meet with IA at IA’s insistence, but it
is also plausible that Dahlia’s act of meeting with IA was
outside his job duties for the purpose of the First
Amendment.” Maj. Op. 34. Under the Supreme Court’s
Twombly and Iqbal precedents, it is plaintiff’s responsibility
to show that his speech qualifies for constitutional protection.
See Iqbal, 556 U.S. at 678 (the Rule 8(a) pleading standard
“asks for more than a sheer possibility . . . .[w]here a
complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief” (internal
quotation marks omitted)). The majority incants the term
“plausible” without pointing to allegations which make it so.

    Dahlia’s complaint alleges that IA initiated an
investigation and came to interview him three times. Compl.
¶ 36. Dahlia does not say he sought out IA, nor does he claim
that he was free either to stay silent when asked about the
corruption he had witnessed, or to lie about it. Given the
64                      DAHLIA V. RODRIGUEZ

inherent implausibility of that scenario,11 his complaint most
certainly lacks “factual allegations that ‘raise [his] right to
relief above the speculative level.’” Tamayo, 526 F.3d at
1092 (quoting Twombly, 550 U.S. at 555) (alteration in
original)).

                                      2

    Dahlia’s allegations about his “speech” to the County
Sheriff’s Department are similarly threadbare. The majority
concludes that the protected status of his speech likely turns
on “whether discovery reveals that Dahlia’s supervisors
instructed him to meet with and disclose information to the
[sheriff].” Maj. Op. at 36. Such construction of “pursuant to
official duties” is woefully cramped. See, e.g., Foley,
598 F.3d at 6 (“In analyzing whether Foley spoke as a citizen
rather than as the Chief of the Fire Department, we first note
that it is not dispositive that Foley was not required to speak
to the media.”); Brammer-Hoelter, 492 F.3d at 1203
(“[S]peech may be made pursuant to an employee’s official
duties even if it deals with activities that the employee is not
expressly required to perform.”); Williams v. Dallas Indep.
Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007) (per curiam)
(“Simply because Williams wrote memoranda, which were
not demanded of him, does not mean he was not acting within
the course of performing his job.”).

     Without the majority’s errant gloss, Dahlia’s allegations
fall short. His complaint refers to no facts that suggest, let
alone plausibly suggest, that in cooperating with the sheriff’s


  11
    See, e.g., Jackler, 658 F.3d at 241 (“Of course a police officer has a
duty not to substitute a falsehood for the truth, i.e., a duty to tell ‘nothing
but the truth’. . . .”).
                       DAHLIA V. RODRIGUEZ                             65

investigation of corruption in the Burbank Police Department
he was not “discharging the responsibilities of [his] office,
[but instead] appearing as “[John] Q. Public.” Tamayo,
526 F.3d at 1092. And as already detailed, the case law and
California Government Code Section 3304 indicate that
cooperating with an external law enforcement agency “is a
duty he ‘actually [was] expected to perform.’” Foley,
598 F.3d at 7 (quoting Garcetti, at 424–25).12

    Thus, I must conclude that Dahlia’s complaint does not
state a claim for First Amendment retaliation upon which
relief may be granted.

                                    B

    In our circuit, though, Dahlia still would have one more
chance to pursue his claim. Although the odds are long,
Dahlia could conceivably satisfy the pleading standard as to
the protected status of his speech by adding particular
allegations about the nature of his crime-reporting duty at the
Burbank Police Department. In my view, he would be
entitled to be granted leave to amend his complaint, and it is
on that narrow basis that I would reverse the judgment
dismissing his complaint. See Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000) (en banc) (explaining that the court must


  12
     Because our court is admonished not to manufacture arguments for
parties, unlike the majority, I would not consider Dahlia’s report to the
Burbank Police Officers’ Association as an alternative form of protected
speech. See United States v. Williamson, 439 F.3d 1125, 1138 (9th Cir.
2006); Maj. Op. at 35. Dahlia has not claimed anything beyond his
statements to Internal Affairs, to the sheriff’s department, and his
unsubstantiated report to the FBI as constitutionally protected speech.
Nor, has he even alleged that “the retaliation he faced was directly caused
by this act of reporting.” Maj. Op. at 35.
66                 DAHLIA V. RODRIGUEZ

“grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other facts”).
I also agree with the majority to the extent that Dahlia’s
request for leave to amend to satisfy the adverse action
requirement must be honored. Maj. Op. at 36–37 nn. 22–23.

                              V

    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. Yet we must stay our collective hand, ever
mindful that the “Constitution does not provide a cure for
every social ill, nor does it vest judges with a mandate to try
to remedy every social problem.” Plyler v. Doe, 457 U.S.
202, 253 (1982) (Burger, J., dissenting) (citing Lindsey v.
Normet, 405 U.S. 56, 74 (1972)). Alongside his First
Amendment cause, Dahlia brought claims under provisions
of California law that (1) protect public employees from
retaliation for disclosing an abuse of authority or a danger to
the public safety, California Government Code § 53298, and
(2) that shield employees who complain to a government
agency, California Labor Code § 6310. These are the kinds
of remedies that the Supreme Court has explained
whistleblowers should pursue in the absence of a
constitutional claim. See Garcetti, 547 U.S. at 425. However
righteous our aims, when we stretch the Constitution to match
our sense of justice, we exceed “[t]he judicial power” vested
to us in Article III and, by rendering state law nugatory,
disserve our federal union.
                   DAHLIA V. RODRIGUEZ                      67

    While I narrowly concur in the judgment, I must
respectfully dissent from the court’s erroneous analysis of the
First Amendment in this case.
