Testimony In Deposition Protected Speech

by Rob Wexler

The Ninth Circuit Court of Appeals recently held that an assistant police chief was not entitled to qualified immunity in a lawsuit by a former employee alleging she was fired in violation of her right to free speech. The case reaffirms that an employer is not shielded from liability for violating an employee’s First Amendment protections in connection with subpoenaed deposition testimony about a matter of public concern and where the employee spoke as a private citizen, rather than in her capacity as an employee.

Nancy Karl worked as the confidential administrative secretary to the Police Chief in the City of Mountlake Terrace, Washington. In 2008, she was subpoenaed to give deposition testimony in a federal lawsuit brought by a police sergeant claiming he was retaliated against for his outspoken criticism of the war on drugs and his involvement with an organization called “Law Enforcement Against Prohibition.”

During the deposition Karl testified that the sergeant had a reputation for honesty, while the Police Chief had a reputation for dishonesty. She also testified that the assistant chief, Pete Caw, was known as a “smooth talker” and a “back stabber.” After the deposition, Caw was overheard stating that Karl’s testimony hurt the City, Karl could not be trusted and the Department needed to “get rid of her.”

A short time later, Karl was involuntarily transferred to a part-time records position, where she was subject to a six-month probationary period. Ten weeks later, Karl was placed on administrative leave following a verbal altercation with a fellow employee who worked in records. When Karl was subsequently fired, she filed suit against the City and Caw alleging her termination was in retaliation for her deposition testimony. Caw claimed he was entitled to qualified immunity.

The doctrine of qualified immunity protects government officials from liability for civil damages provided their actions do not violate clearly established statutory or constitutional rights.

The First Amendment shields a public employee from retaliation for their protected speech activities. To determine whether speech is protected, the courts have come up with a balancing test that asks the following questions: (1) Was the speech a matter of public concern? (2) Did the employee speak as a private citizen and not within the scope of her official duties? (3) Did the employee suffer adverse action or retaliation as a result of her speech? Unless all these questions are affirmatively answered, the speech is not protected. Even if the speech is protected, however, an employer can still take adverse action against an employee if the employer can show that its interest in suppressing the speech outweighed the employee’s free speech interest or that it would have taken the adverse action against the employee even absent the protected speech.

The Court found that an employee’s testimony is a matter of public concern if it is made in connection with an administrative or judicial proceeding in which government misconduct is at issue. The Court also found that Karl’s testimony was given as a private citizen outside the scope of her clerical duties as the confidential assistant to the Police Chief, and that but for her speech Karl would not have been fired. Finally, the Court found that Caw reasonably should have known that Karl’s deposition testimony was entitled to First Amendment protection and, as a result, it held he was not entitled to the shield of qualified immunity.

Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th Cir. 2012).