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Ninth Circuit to Weigh Legal Shield for Public Worker Testimony

April 14, 2021, 9:31 AM

A federal appeals court in San Francisco will consider a case that could determine the level of protection that police, lab technicians, and other public employees in the nation’s largest judicial region have against retaliation for rejecting orders to give what they believe is false testimony at trials.

During oral argument Wednesday, counsel for forensic scientist Greg Ohlson will try to convince the U.S. Court of Appeals for the Ninth Circuit to revive his lawsuit claiming he was forced to quit for defying orders to testify untruthfully during a criminal evidentiary hearing.

A federal judge said his testimony was protected by the First Amendment, but that the constitutional shield wasn’t clearly established at the time of his alleged constructive discharge. That meant Ohlson’s supervisors at the Arizona Department of Public Safety deserved “qualified immunity” from his claim because they reasonably believed they could control what he said on the stand, the judge said.

The doctrine of qualified immunity is often used by law enforcement to stop civil suits alleging violations of constitutional rights. Debate around the doctrine has intensified since the death of George Floyd in Minneapolis police custody, which put a spotlight on accountability for increased concerns about racially motivated police brutality.

Qualified immunity blocks claims against government officials unless they violated “clearly established” rights, aside from the rare instance in which the violation was so egregious that they should have known it was unconstitutional.

But critics say the doctrine has gone off the rails in part because courts have increasingly demanded that a court decision establishing a right matches up with the facts of the case at issue.

In one example, the Sixth Circuit granted qualified immunity to a cop accused of using a police dog on a suspect who had surrendered by sitting on the ground with his hands up—despite circuit precedent saying police use of a dog on a suspect who surrendered by lying on the ground was unconstitutional.

Protections for Testimony

In terms of developing anti-retaliation protections for public employee testimony, what the Ninth Circuit says about Ohlson’s First Amendment rights while on the stand is more important than its view on his supervisors getting qualified immunity, legal scholars said.

An opinion could narrowly say his testimony was protected and leave courts in the Ninth Circuit with a lot of latitude on how they apply it in future cases, scholars said. The circuit covers California, Washington, Arizona, Oregon, Nevada, Idaho, Montana, Hawaii, and Alaska.

Testimony protection, for example, might not stand as a clearly established right if a public employee was fired for lying at a civil hearing instead of a criminal evidentiary hearing, the academics said. Or it could be a shield for only forensic scientists and not other public employees, they said.

“When it comes to qualified immunity, I could imagine district courts saying anything,” said Alexander Reinert, a law professor at the Cardozo School of Law who authored a study of more than 4,000 appellate rulings on qualified immunity. “You can slice the onion pretty thinly on how courts will apply precedent.”

A broadly written opinion, on the other hand, could produce broad protections, scholars said.

For instance, the Ninth Circuit could say the First Amendment prohibits public employers from trying to control their workers’ testimony, said Teressa Ravenell, a Villanova University law professor who focuses on police misconduct and civil rights litigation.

An opinion that includes certain phrases like “let me be clear, this is a violation,” and “government employers should be on notice,” would also increase the scope of protection, Ravenell said.

‘Shape the Truth’

The issue of protections for government worker testimony stems from Ohlson’s 2018 lawsuit against his supervisors at the Arizona Department of Public Safety.

Ohlson claimed that he was suspended and then forced to quit after defying orders to lie under oath and conform his testimony to the office’s position on the reliability of blood alcohol testing procedures.

U.S. District Judge Douglas Rayes granted qualified immunity in 2020, pointing out that courts haven’t addressed the First Amendment protections for public employees who routinely testify as part of their duties.

On appeal at the Ninth Circuit, Ohlson said in his brief that his supervisors should have known they couldn’t force him to lie under oath at a criminal trial. The fact that it’s a federal crime to obtain a conviction through false testimony should have made that clear, he said.

Allowing the government to “shape the truth” by pressuring expert witnesses in criminal proceedings undercuts basic principles of the justice system, said Ohlson’s lawyer, Joseph St. Louis of Nesci & St. Louis.

On the Stand, On the Job

National Police Accountability Project, a nonprofit that represents plaintiffs in police misconduct cases, filed a brief backing Ohlson. First Amendment protections for government workers testifying to their personal opinion about a matter of public concern is “beyond debate,” the group said.

The Supreme Court’s 2014 ruling in Lane v. Franks that public employees can’t be fired for testimony they give outside their normal job duties, and Ohlson testifying in his professional capacity, doesn’t strip his speech of protections, the group said.

The Arizona attorney general’s office said in its brief that Ohlson’s testimony deserved no free-speech protection because he was performing a paid job to act as the public safety agency’s representative.

But even if he was acting as a private citizen speaking on a matter of public concern, the speech still wasn’t protected because the state had a strong interest in controlling his testimony, the office said.

“Ohlson’s speech activities and disregard for the lab’s position impaired those interests, which far outweighed any interests that Ohlson had as a speaker,” the office said.

Moreover, the lack of clarity in the law shows why the judge was correct to grant qualified immunity.

The Arizona attorney general’s office didn’t respond to requests for comment.

The case is Ohlson v. Brady, 9th Cir., No. 20-15656, oral argument 4/14/21.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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