[D. Scarlatti]

Today's case is Garcetti v. Ceballos, which Associate Justice Roberts will hear early in the Court's fall term on October 10. Gil Garcetti was the District Attorney for Los Angeles County for eight years and Ceballos a deputy DA with supervisory responsibilities over several other DAs.

In the course of a murder investigation, Ceballos was made aware by one of the defense lawyers that a related search warrant affidavit may have contained information fabricated by one of the arresting officers. Ceballos determined that the affidavit contained gross factual misrepresentations.

Ceballos's superiors agreed, and, in a memo to them, Ceballos recommended that the case be dismissed. After requesting that Ceballos revise the memo to soften the direct accusations made against the arresting officer, Ceballos's boss declined to dismiss the case, preferring instead to rely on the court's disposition in a defense motion requesting dismissal on the above grounds.

In the meantime Ceballos informed the defense attorney that he believed the warrant was bogus, and the defense subpoenaed Ceballos to testify at the motion hearing. In fact Ceballos not only testified at the hearing, but he also turned over to the defense his internal memoranda on the subject, which he was required to do by law.

The court sustained many of the prosecution's objections to the defense attorney's questioning of Ceballos at the hearing and as a result, according to Ceballos, he was unable to testify as to several of the reasons why he believed the search warrant was impermissibly obtained.

Nonetheless, following the motion hearing, Ceballos's superiors took what Ceballos alleged were retaliatory and adverse employment actions against him in violation of his right to free speech. Although he lost in district court, the 9th Circuit reversed and held that Ceballos's rights trumped both the qualified and sovereign immunity defenses the DA's office had mounted.

Qualified immunity protects individual public officials' actions against suit unless those actions violate the plaintiff's clearly established constitutional rights. Sovereign immunity refers to the 11th Amendment, which protects state governments against legal action.

Freedom of speech of course is a clearly established constitutional right. But the right is not absolute generally, and public employers can further stifle speech when that speech impairs the promotion of workplace efficiency and causes workplace disruption. Even though Ceballos's speech was directed toward his coworkers, the 9th Circuit determined that since the speech concerned wrongdoing on the part of the law enforcement agencies, its value as a matter of public concern outweighed the county's claims of qualified immunity.

On the 11th Amendment question, the 9th Circuit held that its protections cannot be claimed by county agencies, despite the fact they are subdivisions of the state. Since a county District Attorney acts both in the dual capacities of agent of the county and agent of the state, and retaliatory adverse employment actions occur pursuant to the former, Garcetti was unable to claim the 11th Amendment as protection against Ceballos's allegations.

Fascinating, yes?