Judge Hurwitz surely describes the facts of this case in a way that's extremely persuasive. He says:
"Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, deemed Avila insubordinate for not claiming overtime and fired him.
Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, deemed Avila insubordinate for not claiming overtime and fired him."
Well, geeze. I agree. That's totally outrageous. I'm not at all surprised the jury found in his favor, and that the Ninth Circuit affirms. Way to go.
Except for one thing.
Judge Vinson -- sitting by designation from Florida -- gives a little more color to those facts in his dissent. Color that's darn persuasive as well. He says:
"The majority repeatedly states that Avila and two fellow officers, Romney and Anderson, were disciplined only after they testified in the Maciel litigation. See, e.g., Maj. Op. at 5 (“[The] termination occurred only after Avila had testified in [the Maciel suit.]”); accord id. at 5 (“The evidence at trial was that the only officers disciplined . . . were those who testified against the LAPD in the Maciel suit[.]”). Although technically true, the substance of their Maciel testimony is critical, as Avila, Romney, and Anderson were also the only officers who had openly admitted to insubordination while they testified. Specifically, they admitted that for several years they failed to report overtime — and failed to report supervisors who allegedly told them to do so — even though they knew it was “serious misconduct” for which they could be fired. Accordingly, when the majority says “the only officers singled out for discipline were those who testified at the Maciel action”, id. at 16, it is more complete and factually accurate to say that “the only officers singled out for discipline were those who testified at the Maciel action and who admitted under oath that for years they knowingly and repeatedly violated policies that they were specifically told would subject them to termination.”"
Well, shucks. That does make it more complicated, doesn't it?
Imagine, for example, a situation in which one police officer files a wrongful termination suit, saying that he shouldn't have been fired for accepting bribes, and three other officers testify therein that they routinely accept bribes as well: that everyone does, and everyone knows about it.
Is it really illegal to fire those officers given their admission that they're doing something illegal? Even if you only fire them? Why isn't it okay to fire the class of people who admit to illegality? Even if that class is composed entirely of people who testified at trial, and the only evidence of that illegality is that testimony?
Sure, you should fire everyone who commits illegal acts, not just those who testify about it. But I'm sure that the department would say that that's exactly what they did. And wouldn't it be rational to at least start with the firing of the people against whom the evidence is overwhelming -- i.e., those who admitted to the misconduct -- and then potentially go after the remainder? Moreover, maybe there's a reason you stop after firing the self-confessed criminals: maybe the evidence against the others (given the absence of a confession) is too ambiguous, the required prosecutorial resources too great, the risk of litigation too high, etc. Might not that make sense?
Mind you, I have a keen suspicion -- as does Judge Hurwitz, I imagine -- that there are other things at work here. I'm inclined to believe that the LAPD was pissed at the officers for testifying adversely to the department. So when it decided to "target" these people, I think there might well have been a direct reaction not just to the content of their testimony, but also to the mere fact that it was made. "Breaking the Code of Silence" and all. Not "supporting" the Department.
But it's tough to create a real standard here. Imagine that the testimony is not just about taking bribes, but also beating suspects and killing innocent people. Same rule? Just have to show that the LAPD's anger at breaking the Blue Wall was a substantial motivation in terminating the people? Really?! Isn't it sufficient just to say: Hey, this is serious stuff. You can't keep your job once you admit to things like this. Even if it's possible that other, non-testifying, officers also might commit similar offenses (but have not confessed to them) and not be punished.
One other point. In other areas of the law involving police, we don't care about subjective motives. For example: Did they really pull you over because you had tinted windshields, or was their true motivation just to search your car? We don't care. We only care that there was an objective basis for what the police did.
Here, by contrast, there's no doubt an objective basis for what the police department did. But we're spanking them anyway.