A federal appeals court in San Francisco today rejected a bid by two former Pittsburg police officers for the right to sue their city for alleged retaliation for their participation in corruption probes.

A panel of the 9th U.S. Circuit Court of Appeals by a 2-1 vote upheld a federal trial judge’s dismissal of the civil rights lawsuit filed in 2005 by former officers Ron Huppert and Javier Salgado.

Huppert, who claimed he was denied promotions and favorable job assignments, retired on disability in 2004. Salgado was fired in 2004 after he pleaded no contest to a charge of falsifying police reports. Salgado died in a car accident in 2007.

The two men claimed they were retaliated against for statements they gave in several corruption investigations.

Huppert assisted in an investigation of possible corruption at a city-owned golf course, gave statements in an FBI probe of the Pittsburg Police Department and testified before a civil grand jury looking into possible corruption. Salgado participated in the golf course probe.

The two men claimed the alleged retaliation violated their First Amendment right of free speech.

But the court majority, citing a 2006 U.S. Supreme Court decision, said that First Amendment protections didn’t apply because the officers’ statements were made in the course of their official duties.

Circuit Judge Richard Tallman, who wrote the majority decision, said the officers could use other options, such as the state’s whistleblower law, to challenge alleged retaliation for revealing police department misconduct.

Circuit Judge William Fletcher said in a dissent he believed that Huppert’s civil grand jury testimony was protected free speech because he spoke as a citizen rather than as a public employee.

Fletcher also said Huppert’s statements to the FBI and both men’s statements during the golf course probe might be protected by the First Amendment and that a trial jury should decide the issue.

Joseph Quinn, a lawyer for the city, said the decision “is true to the spirit of the Supreme Court ruling.”

Russell Robinson, a lawyer for Huppert and for Salgado’s heirs, said they will appeal, either by asking the appeals court to reconsider or by petitioning the U.S. Supreme Court.
Robinson said, “I think the court majority was wrong. I think police officers go outside their job description when they cooperate with outside agencies.”

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