Derwin Longmire v. City of Oakland

FILED
NOT FOR PUBLICATION AUG 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DERWIN LONGMIRE, No. 11-17870
Plaintiff - Appellant, D.C. No. 3:10-cv-01465-JSW
v.
MEMORANDUM*
CITY OF OAKLAND; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted October 10, 2013
San Francisco, California
Submission Vacated December 20, 2013
Resubmitted August 14, 2014
Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.
Plaintiff Derwin Longmire appeals from the district court’s order dismissing
his Fourteenth Amendment claim and the court’s subsequent order granting
summary judgment in favor of Defendants on his Fourth Amendment and First
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Amendment claims. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
affirm.
1. The parties have stipulated that Longmire’s Fourteenth Amendment
equal protection claim for “perceived as” religious discrimination is moot based on
the adjudication on the merits of a related state law claim. See Longmire v. City of
Oakland, No. A137344, Slip op. (Cal. Ct. App. Jul. 28, 2014).
2. Longmire did not have a reasonable expectation of privacy in the
information that Defendants allegedly disclosed to the press. “Fourth Amendment
rights are implicated only if the conduct of the [defendants] infringed ‘an
expectation of privacy that society is prepared to consider reasonable.’” O’Connor
v. Ortega, 480 U.S. 709, 715 (1987) (citation omitted). The information that
Defendants allegedly disclosed was not highly personal and instead related only to
Longmire’s work (and alleged misconduct) as a police officer. See, e.g., Engquist
v. Or. Dep’t. of Agric., 553 U.S. 591, 599 (2008) (“[The] government has
significantly greater leeway in its dealings with citizen employees than it does
when it brings its sovereign power to bear on citizens at large.”); Lissner v. U.S.
Customs Serv., 241 F.3d 1220, 1223 (9th Cir. 2001) (noting that “by becoming
public officials, [police officers’] privacy interests are somewhat reduced”).
2
3. With respect to his First Amendment claim, Longmire did not
“sp[eak] on a matter of public concern.” See Dahlia v. Rodriguez, 735 F.3d 1060,
1067 (9th Cir. 2013) (en banc) (citation omitted). Longmire’s “Pre-Disciplinary
Response” letter alleged that Defendants’ internal affairs investigation violated his
procedural due process rights. The “essential question is whether the speech
addressed matters of ‘public’ as opposed to ‘personal’ interest.” Desrochers v.
City of San Bernardino, 572 F.3d 703, 709 (9th Cir. 2009) (citation omitted).
“Speech by public employees may be characterized as not of ‘public concern’
when it is clear that such speech deals with individual personnel disputes and
grievances and that the information would be of no relevance to the public’s
evaluation of the performance of governmental agencies.” Allen v. Scribner, 812
F.2d 426, 431 (9th Cir. 1987).1
AFFIRMED.
1
Longmire’s Motion to Supplement the Record is DENIED. See United
States v. W.R. Grace, 504 F.3d 745, 766 (9th Cir. 2007) (“In general, we consider
only the record that was before the district court.”). Practically speaking,
comparable facts already are in the record.
3