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Hagen v. City of Eugene

United States Court of Appeals, Ninth Circuit

December 3, 2013

Brian HAGEN, Plaintiff-Appellee,
v.
CITY OF EUGENE, Peter Kerns, Jennifer Bills, Tom Eichhorn, Defendants-Appellants.

Argued and Submitted Nov. 8, 2013.

Page 1252

[Copyrighted Material Omitted]

Page 1253

Jerome Lidz (argued), Glenn Klein, City of Eugene Prosecutors Office, Eugene, OR, for Defendants-Appellants.

Jamie B. Goldberg (argued), Makler Lemoine & Goldberg PC, Portland, OR, for Plaintiff-Appellee.

Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, Chief District Judge, Presiding. D.C. No. 6:10-cv-06100-AA.

Before: ARTHUR L. ALARCON, MILAN D. SMITH, JR., and ANDREW D. HURWITZ, Circuit Judges.

OPINION

ALARCÓ N, Senior Circuit Judge:

The City of Eugene and Eugene Police Department (EPD) Chief of Police Peter Kerns, Lieutenant Jennifer Bills, and Sergeant Tom Eichhorn appeal from the district court's denial of their motion pursuant to Rule 50(b) of the Federal Rules of Civil Procedure for a judgment as a matter of law (JMOL). Hagen alleged Appellants violated his First Amendment rights when they removed him from his position on the EPD K-9 team in retaliation for repeatedly airing concerns about work-related safety issues to his supervisors. After a two-day trial, a jury found in Hagen's favor against all Appellants. We have jurisdiction under 28 U.S.C. ยง 1291.

We conclude that the evidence presented to the jury does not reasonably permit the conclusion that Hagen established a First Amendment retaliation claim. Where, as here, a public employee reports departmental-safety concerns to his or her supervisors pursuant to a duty to do so, that employee does not speak as a private citizen and is not entitled to First Amendment protection. We reverse the judgment below and hold that Appellants were entitled to judgment as a matter of law.

I

A

Brian Hagen began working for the EPD in 1998, where he joined the K-9 unit in 2004. As a K-9 officer, Hagen occasionally deployed with the SWAT team for potentially dangerous operations.

As early as the late 1990s, the EPD SWAT team began experiencing problems with officers negligently discharging firearms. In an early example, Sergeant Jay Shadwick— who supervised the K-9 team when Hagen joined in 2004— was shot by a SWAT team sniper during an operation in 2001.

The accidental discharges continued after Hagen joined the K-9 team. In 2005, a SWAT team officer unintentionally pulled the trigger on his rifle as he attempted to pull the pin on a flash-bang grenade during the execution of a search warrant. The rifle was aimed at the ground. Nobody was hurt. Following that incident, Hagen and his fellow K-9 officers, Mark Hubbard and Robert Rosales, voiced concern over the accident to their supervisor, Sgt. Tom Eichorn.

In January 2007, a SWAT officer accidentally shot another officer when he mishandled his rifle while climbing a fence.

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The following week, Eichhorn met briefly with officers Hagen, Hubbard, and Rosales to further address their safety concerns. When pressed for details about EPD's proposed response to their safety concerns, Eichhorn became irritated and expressed frustration that the issue was being raised again. After that meeting, Hagen voluntarily took the lead among the K-9 officers in coordinating their complaints.

In April 2007, another SWAT officer unintentionally discharged his rifle during the execution of a search warrant due to a technical malfunction, this time in a residential neighborhood. In an effort to make his growing safety concerns " as public as possible" following this third shooting in two years, Hagen sent an e-mail on May 23, 2007, to a number of sergeants with K-9 and SWAT team experience, inviting them to a meeting at city hall on May 30, 2007, to discuss " safety issues related to our close working relationship with the SWAT team." " Most of these issues," the e-mail explained, " surround the recent accidental discharges and how [the K-9 and SWAT] teams could be better equipped or trained to function more safely together." The record is unclear whether this ...


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