Friedman v. Jenkins

Background

Jack Arne Friedman alleged that he had worked as an investigator for the Office of the San Francisco District Attorney, Independent Investigations Bureau. He investigated officer-involved shootings and recommended whether criminal charges should be filed. In November 2020, he prepared a request and affidavit for an arrest warrant for Officer Samayoa concerning the shooting death of a carjacking suspect. A California Superior Court found probable cause and issued the warrant, and former District Attorney Chesa Boudin brought charges.

After Brooke Jenkins became District Attorney, her staff directed an investigator to prepare a memorandum about the decision to charge Officer Samayoa. Friedman alleged that he told Jenkins he feared the memorandum would undermine his affidavit and that the investigator was being coerced to give false testimony. He said he made these communications in December 2022 and January 2023. At the end of January 2023, Jenkins placed Friedman on administrative leave and allegedly ordered him not to speak about the Samayoa case. In February 2023, Jenkins dismissed the charges.

Friedman sued Jenkins and the City and County of San Francisco. Against Jenkins, he asserted a First Amendment free-speech claim under 42 U.S.C. § 1983 and a retaliation claim under California Labor Code section 1102.5. Jenkins moved to dismiss those claims and moved to strike Friedman’s request for punitive damages.

Section 1983 and First Amendment Claim

The court applied the standard for a motion to dismiss for failure to state a claim. At this stage, the court accepts well-pleaded facts as true and asks whether the complaint plausibly shows an entitlement to relief.

For a public employee’s First Amendment retaliation claim, the court explained that the employee must allege that: (1) the speech concerned a matter of public concern; (2) the employee spoke as a private citizen rather than as a public employee; and (3) the speech was a substantial or motivating factor in an adverse employment action. If those requirements are met, the government may still defend the action by showing adequate justification for treating the employee differently from the general public.

The court held that Friedman had not plausibly alleged that his restricted speech concerned a matter of public concern. The court stated that whether district attorneys should prosecute police officers can theoretically involve a public issue, but found that Friedman’s allegations focused more narrowly on whether Jenkins should have followed his recommendation in the Samayoa case. The court also viewed his allegations about Jenkins’s statements concerning his honesty and legal and ethical responsibilities as an individual personnel dispute rather than speech about public welfare.

The court separately held that Friedman had not alleged sufficient facts showing that he spoke as a private citizen. As pleaded, his communications primarily concerned his official duties in recommending charges against police officers. The court found no plausible allegation that the speech occurred outside the context of his employment responsibilities.

The court also concluded that Jenkins and the District Attorney’s Office had an interest in limiting speech by the subject of an internal investigation when the speech related to that investigation. Because the court found that Friedman had not alleged speech involving a matter of public concern, it held that only a minimal government interest was needed to justify the restriction and that the interest outweighed Friedman’s First Amendment interest.

The court granted dismissal of the section 1983 claim on these grounds, with leave to amend. Jenkins also argued that qualified immunity protected her from liability. Qualified immunity generally protects government officials from damages liability unless they violated a clearly established statutory or constitutional right. The court deferred ruling on qualified immunity because it was giving Friedman an opportunity to amend his allegations.

California Labor Code Section 1102.5 Claim

Jenkins argued that California Labor Code section 1102.5 does not authorize a retaliation claim against her personally. Friedman argued that the statute’s reference to “any person acting on behalf of the employer” permits individual liability.

The court predicted that the California Supreme Court would not allow section 1102.5 retaliation claims against nonemployer individuals. It relied on California decisions holding that individual supervisors are not personally liable for certain discrimination and retaliation claims, and reasoned that decisions to hire, fire, promote, discipline, or investigate employees are part of supervisory duties that can later be alleged to be retaliatory.

The court held that Friedman had no cause of action against Jenkins individually under section 1102.5. It therefore did not reach Jenkins’s argument that California Government Code section 820.2 immunized her from liability. The court found that further amendment would be futile and dismissed the section 1102.5 claim with prejudice.

Motion to Strike

Jenkins moved under Federal Rule of Civil Procedure 12(f) to strike Friedman’s request for punitive damages, arguing that the complaint did not adequately allege malice, oppression, or reckless disregard of his rights. The court discussed the allegations but denied the motion to strike as moot because it was allowing Friedman to amend his section 1983 claim. The court stated that any renewed punitive-damages request would require more than a conclusory allegation of wrongful intent.

Disposition

The court granted Jenkins’s motion to dismiss. Friedman’s section 1983 claim against Jenkins was dismissed without prejudice, and his section 1102.5 claim against Jenkins was dismissed with prejudice. Jenkins’s motion to strike was denied as moot. Friedman was permitted to file an amended complaint within 21 days. The court also set an initial case-management conference for May 31, 2024, and ordered the parties to submit a case-management statement by May 24, 2024.