Blair v. City of Pomona (March 21, 2000)

* Court: Ninth Circuit

* Jurisdiction: City of Pomona

* Plaintiff's Job Class: Police Officer

* Trial Court: In favor of City

* Ninth Circuit: Substantially in favor of employee

* Issues: Section 1983, harassment, police corruption, police code of silence

Blair Facts

* Since the trial granted summary judgment, the Ninth Circuit was required to look at the law using only Blair's facts.

* Blair was hired as a police officer with Pomona in 1987.

* In 1995, Officer Olivieri of the department's major crimes task force MCTF) told Blair that MCTF officers were stealing money, leaving early, drinking on duty, planting heroin on a suspect, etc.

* The next day Blair told his lieutenant about what Olivieri had said; the following day the chief thanked Blair.

* Five members of the MCTF were suspended, and three of the five in September 1995 were fired.

* One week after Blair told his lieutenant "rat" was scrawled on his local; three officers turned their backs on him; a "big green gob" of spit was left on his locker; his locker was wired shut with a coat hanger; equipment was stolen out of his locker; one of Blair’s uniform shirts was put in a urinal. In May, trash started being left in his patrol vehicle and soft drinks poured on the driver’s seat. (All of the keys to the same make of police vehicle were same.) In June 1995, Blair called for backup, but none came. In July 1995, a fellow officer grabbed his crotch in front of Blair’s wife and children at a fireworks show. The same mouth Blair was assigned to MCTF(!), even though county fair, Pomona officers yelled at Blair’s wife and mother pretended to vomit. That same month, Pomona officers blocked a van driven by Blair’s mother from entering the department parking lot.

* Blair reported all of these events to his supervisor; little was done.

* In October 1995, Blair had had enough; he received a year of disability pay.

* In December 1997, he was fired for being AWOL (the record does not indicate if Blair filed for disability retirement).

* Blair sued in September 1996, alleging (1)violation of free speech, (2) constructive discharge, (3) interference with civil rights, (4) negligent supervision, (5) intentional inflection of emotional distress, and (6) assault. Blair sued the City and the police chief.

* The district court in February 1998 granted summary judgment on all causes of action in favor of the City and the chief.

* Blair filed a limited appeal.

* The Ninth Circuit ruled in favor of Blair and upheld his section 1983 cause of action and his state claims for interference with civil rights and intentional infliction of emotional distress.

Blair Analysis

* To succeed in a section 1983 action, Blair must show that (1) he was deprived of a constitutional right, (2) the City had a custom, (3) this custom amounted to at least indifference of Blair’s constitutional rights, and (4) the custom caused the deprivation of Blair’s rights.

* Blair possessed a First Amendment right to notify his superiors of misconduct in the department.

* The facts alleged by Blair, if believed by a jury, would establish that the department had a custom of retaliating against whistleblowers, that the custom amounted to a deliberate indifference to Blair’s rights to speak, and deliberate indifference to Blair’s rights to speak, and that the custom caused the deprivation of Blair’s rights.

* The court notes that at trial the city is free to show that the acts were isolated acts committed by individuals and did not constitute a departmental custom.

* The Ninth Circuit panel, while unanimously voting to overturn the district court’s decision, split over a rationale. Two of the three came out strongly against the code of silence: From teenage gangs to adult associations, loyalty has a high place and often operates to discourage and breach of confidentiality thought to be a threat to the interests of the group. The group acts to maintain itself. Understandable as this kind of loyalty is, it is not tolerable when preservation of the organization undercuts the central purpose of the organization. The police are specially armed and empower to act in order to combat crime. Their mission is subverted if they commit crimes and a code of silence protects the crimes. American police do not have the privileges to praetorians. Silence to protect criminal policemen cannot be supported by a civilized community. Ingrained although such a custom may be, it can not be a defense, and indeed it may be a cause of liability, for a city supporting it, when the leads tot he disciplining of an officer brave and straight enough to challenge it as cowardly and perverse.

* The third judge felt that the case may have been blown somewhat out of proportion: The four acts identified by the majority as clearly having been performed under color of state law are not overwhelming evidence of a deprivation of Blair’s civil rights. The first incident, involving the placement of a police car in the path of Blair’s mother, could easily be viewed as trivial. Evidently, she could move in any other direction by forward and was waylaid for no more than a matter of seconds. Second, the interruption of one of Blair’s radio transmissions might have been largely undistinguishable from ordinary radio status and occurred only once. Third, Blair complained of not receiving backup on a single occasion; it is impossible to say, however, whether the 23 minutes he waited is longer or shorter than the average wait for backup. Fourth, Blair was indeed transferred, but so too was his entire team. Conclusion This is an unusual case, centering as it does on the so-called police code of silence. We will probably often see quoted the first quote I cited above, but it is also useful to recall the calmer second quote. Would we have ranted Blair affirmative relief coverage?