Huppert v. City of Pittsburg (CA9): When DeShaney, Garcetti, and Federalism (Don't) Collide

Huppert v. City of Pittsburg, No. 06-17362 (9th Cir. July 21, 2009) (available at 2009 WL 2151344; or here) was a disappointing post-Garcetti, opinion. It was disappointing not necessarily because of its outcome, but because of its reasoning.

Some quick background: In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court held that public employees are not entitled to First Amendment protection for speech undertaken pursuant to their official duties. Id. (“The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy.”) Post-Garcetti, lower courts have been busy defining what a government employee's “official duties” are.

In Huppert, a split panel of the Ninth Circuit Court of Appeals held that a city police officer who served as an FBI informant acted pursuant to his official duties as a city police officer. The panel reached its conclusion thusly:

Though Huppert argues that he was repeatedly informed by the FBI that his investigatory work was outside his duties as a police officer, this is not enough to overcome California’s jurisprudence defining such duties. It is clear that in California a police officer’s official duties include investigating corruption, so as to “prevent[ ] the commission of crime, . . . [and] assist[] in its detection.”
Id. at *9338 (quoting Christal v. Police Commission of City and County of San Francisco, 92 P.2d 416, 419 (Cal. Ct. App. 1939).

Under Huppert, then, a police officer who speaks out about police corruption will almost never have First Amendment protection. While Huppert's outcome disincentivizes would-be whistle blowers, it is also analytical unsound. It ignores California common law, as well as the common law of Section 1983. The Ninth Circuit made an important analytical error.

Under California state law, a police officer does not, in fact, have a duty to prevent the commission of crime, or to assist in its detection. This is known as the no-duty rule, and it provides:
As a general rule, a person who has not created a peril has no duty to come to the aid of another no matter how great the danger in which the other is placed, or how easily he could be rescued, unless there is some relationship between them which gives rise to a duty to act. This rule applies to police officers as well as to other citizens: The police owe duties of care only to the public at large and, except where they enter into a special relationship, have no duty to offer affirmative assistance to anyone in particular.
Benavidez v. San Jose Police Dept., 71 Cal.App.4th 853, 859-60 (Cal. Ct. App. 1999) (emphasis added). Moveover, under the common law of Section 1983, police do not have any duty to prevent crime, or assist in its detection. See DeShaney v. Winnebago County, 489 U.S. 189 (1989) (adopting no-duty rule as a matter of federal constitutional law).

Does it make sense to say that city police officers who cooperate with the FBI are simply doing their duty, when in fact, police are not under any legal duty to prevent and investigate crime?  And what of the federalism concerns?

In a world of dual sovereigns, how is a city police officer performing his official (and thus local) duties when cooperating with the FBI (a national entity)?  See United States v. Lanza, 260 U.S. 377, 382 (1922) ("We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.")

Moreover, under Printz v. United States, 521 U.S. 898 (1997), state and local officials may not be commandeered by the federal government.  As Justice Antonin Scalia wrote in Printz:
It is incontestible that the Constitution established a system of "dual sovereignty." Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Although the States surrendered many of their powers to the new Federal Government, they retained "a residuary and inviolable sovereignty," The Federalist No. 39, at 245 (J. Madison).
Given dual sovereignty, how can a local police officer be required to cooperate with the FBI?  California could enact a state law requiring that local police cooperate with the FBI in misconduct investigations.  Yet the Huppert panel cited no such law.  (It is unlikely that such a law exists.)

Perhaps the panel would say that a job duty is not the same thing as a legal duty. That distinction seems facially unpersuasive.  Under California state law, a police officer may not be sued for failure to act, because of the no-duty rule.   If there is no remedy, there is no right. If there cannot be a breach, how can there be a duty?

The Huppert panel should have address the no-duty doctrine before reaching its conclusion.  The Huppert panel should also have considered Printz's no-commandeering principle.  Absent an explicit state requirement, the state is no required to cooperate with the federal government.

Huppert was wrongly decided.  The Ninth Circuit Court of Appeals should review Huppert en banc.