Hagen v. City of Eugene

Where a public employee reports departmental-safety concerns to his or her supervisors pursuant to a duty to do so, that employee does not speak as a private citizen and is not entitled to First Amendment Protection.

Brian Hagen joined the Eugene Police Department (“EPD”) K-9 unit in 2004. Hagen’s duty position necessitated he periodically respond with EPD’s SWAT team, to potentially dangerous calls. As early as the late 1990s, EPD’s SWAT team began to have problems with accidental firearm discharges. From 2005 to 2007, Hagen and two other K-9 officers voiced their concern over these discharges with their supervisor. In 2007, two discharges brought the K-9 officers complaints to a head. One of these discharges wounded a fellow officer. Hagen disagreed with his supervisor’s response, or lack thereof, to the K-9 unit's safety complaints. Hagen coordinated a meeting at city hall between the K-9 and SWAT teams regarding his concerns. Thereafter, Hagen’s supervisor removed Hagen from the K-9 team, characterizing his behavior as “passive insubordination” and finding he was, “the spokesman for the majority of the [discharge] complaints.” The Eugene Chief of Police would reinstate Hagen after his first demotion but Hagen would eventually be removed from the K-9 team indefinitely. A jury found Hagen proved, by a preponderance of the evidence, that he was deprived of his “First Amendment Right of Free Speech under the [U.S.] Constitution.” The Ninth Circuit considered whether sufficient evidence supported the jury’s finding that Hagen had spoken as a private citizen. The panel held that, “[w]here […] a public employee reports departmental-safety concerns to his or her supervisors pursuant to a duty to do so, that employee does not speak as a private citizen and is not entitled to First Amendment Protection.” The panel noted: Hagen expressed his concerns at work and through his “chain of command,” the speech concerned “employment and safety issues” he was required to report, and found his concerns were “inextricably intertwined with his duties.” REVERSED and REMANDED.