WORK WITH US
Agency Wins Qualified Immunity From Scientist’s Claim That The First Amendment Protected His On-Duty Trial Testimony
The State of Arizona employed Greg Ohlson as a forensic scientist. Ohlson worked in the Department of Public Safety, Scientific Analysis Bureau (Department). Ohlson’s job was to test blood samples for alcohol content, report the findings, and testify about those findings in court.
The Department used a variety of quality control policies, including ensuring the accuracy of blood samples by looking at an entire batch of samples. That quality control policy allowed the Department to identify non-conformities and catch instrument failures or malfunctions that skew test results. Department policy limited criminal defendants to only the individual sample results; absent a court order, the remaining samples in the batch were not disseminated.
Ohlson felt strongly that the Department should provide the results of all of the samples within a batch to criminal defendants. He suggested releasing the batch data on a public website. Ohlson suggested this approach to his supervisors on multiple occasions. Each time, they informed him that while the release of batch results may be a good idea, it was not feasible because the Department would need technological help. Also, Ohlson’s supervisors said they were not authorized to make a Department-wide decision.
Ohlson began creating a private PDF file of all the data within the batches. Part of Ohlson’s job duties was to meet with defense attorneys for pre-trial interviews. During those interviews, he began instructing defense attorneys to request the data for the entire batch.
Then, in May 2016, Ohlson testified in a criminal proceeding that the disclosure of the entire batch was necessary to ensure accuracy of the result and that he had a PDF of the batch results he could send to the parties if permitted to do so. Ohlson’s supervisors told him he had violated Department policy, counseled him to bring his future testimony in line with policy, and directed him to delete the PDF files. After Ohlson reacted strongly, Ohlson’s supervisor gave him a Performance Notation that instructed him to, among other things, adheres to policies, stops scanning of batch results, ceases use of job-related legal proceedings to advance his personal views, and align his testimony with the Department’s positions.
A few days later, Ohlson testified in another evidentiary hearing. Ohlson testified that his personal belief, after 35 years of job experience, was that batch results should be disclosed. He also expressed his disagreement with his supervisors. He underscored his testimony by stating that it was not in his “best interest in terms of career advancement” to testify as he had.
Following his testimony, the Department placed Ohlson on administrative leave pending an investigation by the Professional Standards Unit. After the investigation findings led to a 16-hour suspension, Ohlson gave notice of his retirement.
Ohlson then filed a complaint in federal district court alleging a First Amendment retaliation claim for: “testifying truthfully and completely under oath”; and advocating within the Department for “a change in the manner in which the Department responds to requests in criminal cases for entire batch runs.” The district court found that while Ohlson had First Amendment rights to his trial testimony, those rights were not clearly established, so the Department had qualified immunity. After the district court entered judgment in the Department’s favor, Ohlson appealed.
On appeal, Ohlson argued that the First Amendment protected both his testimony in court and his advocacy in the workplace concerning the production of batch results.
The Ninth Circuit determined that the only dispute was whether Ohlson was speaking as a private citizen or a public employee. If Ohlson was speaking as a private citizen, his speech was protected by the First Amendment; if he was speaking as part of his duties as a public employee, it was not. The Ninth Circuit disagreed with the district court that Ohlson’s speech was protected, in large part because Ohlson spoke against his supervisor’s orders. If courts were to protect speech that violates a supervisor’s orders, it would be difficult for a public agency to enforce any rules.
The Ninth Circuit also disagreed with the district court’s conclusion that because citizens have a duty to testify, Ohlson was speaking as a private citizen. The Ninth Circuit noted that Ohlson was testifying in court as part of his job duties; Ohlson was not called to testify as a private citizen.
The Ninth Circuit noted that the US Supreme Court had not addressed whether a government employee who testifies as part of her job duties has First Amendment protection in that speech. The only US Supreme Court case on the topic involved a government employee whose testimony was not made as part of his job duties. (See Lane v. Franks, 573 U.S. 228, 238 n.4 (2014).)
The Ninth Circuit affirmed the district court’s ultimate decision that regardless of whether Ohlson had a First Amendment right, the Department was entitled to judgment because the Department had not violated any clearly established law. Because Ohlson’s First Amendment rights were not clearly established, the Department had qualified immunity.
Ohlson v. Brady (9th Cir. 2021) 9 F.4th 1156.
Qualified immunity protects government employees from being sued for violating an individual’s civil rights. Qualified immunity is generally available if the law a governmental official or entity violated is not “clearly established.” Here the Ninth Circuit noted that after 40 years of US Supreme Court cases on the First Amendment rights of public employees, many free speech issues still remain unsettled.