Greg Ohlson v. BETH BRADY, Arizona Department of Public Safety

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREG OHLSON,
Plaintiff-Appellant,
v.
BETH BRADY, Arizona
Department of Public Safety;
JOSEPH TRIPOLI, Arizona
Department of Public Safety;
VINCENT FIGARELLI, Arizona
Department of Public Safety,
Defendants-Appellees.
No. 20-15656
D.C. No.
2:18-cv-01019-DLR
OPINION
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted April 14, 2021
San Francisco, California
Filed August 23, 2021
Before: Mary M. Schroeder, Johnnie B. Rawlinson, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Schroeder

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OHLSON V. BRADY 2
SUMMARY*
Civil Rights
The panel affirmed the district court’s judgment in favor
of government officials on grounds of qualified immunity in
plaintiff’s action alleging that his employer violated his First
Amendment rights by disciplining him for protected speech.
Plaintiff was a forensic scientist employed by the state of
Arizona in the Arizona Department of Public Safety,
Scientific Analysis Bureau (“Department”), an agency that
analyzes blood samples for alcohol content. His job was to
test blood samples and report the findings, and to testify
about those findings in court proceedings. Plaintiff advocated
for changes in how the lab disclosed batched test results and,
contrary to his superiors’ orders, communicated his opinions
within the Department, with defense attorneys, and in court
hearings. He was disciplined and eventually forced to retire.
The district court concluded that plaintiff spoke as a private
citizen and that his speech was protected expression but that
defendants were entitled to qualified immunity.
The panel noted that there was no dispute that plaintiff’s
advocacy led to his employer’s action against him. Nor was
there any serious dispute that what he was speaking
about—the manner in which forensic evidence is produced
and presented in court—was a matter of public concern. The
only serious dispute was whether plaintiff’s speech should be
treated as that of a private citizen exercising the right
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OHLSON V. BRADY 3
protected by the First Amendment to criticize the
government, or as that of a government employee subject to
discipline for undermining agency administration and public
confidence in agency operations.
The panel first disagreed with the district court’s
conclusion that plaintiff spoke as a private citizen, and
therefore his speech was protected, in large part because he
spoke against his supervisors’ orders. The panel held that
protecting speech because it violates a supervisor’s order
would make it difficult for an agency to enforce any rules,
even those necessary to preserve proper agency
administration. The panel also had doubts about the district
court’s conclusion that, because citizens have a duty to testify
when subpoenaed to do so, plaintiff was speaking in court as
a citizen rather than as an employee. The panel noted that
plaintiff’s job duties included testifying in court. Whether
testimony given as part of a government employee’s duties
was protected speech was a question the Supreme Court left
open in Lane v Franks, 573 U.S. 228 (2014).
The panel also could not say that defendants failed to
identify any possible injury. The panel noted that plaintiff’s
advocacy in the course of his employment duties could
conceivably have adversely affected confidence in the
accuracy of the Department’s test results, as well as in the
Department. The panel agreed, however, with the district
court that defendants had not violated any clearly established
law. The panel stated that where, as in this case, an
employee, in the course of doing the job, has expressed views
the employer regards as contrary to its interests, controlling
legal principles remained particularly uncertain. Because it
was abundantly clear that the law was not clearly established,
defendants were entitled to qualified immunity.

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OHLSON V. BRADY 4
COUNSEL
Joseph P. S. Louis (argued), Nesci & St. Louis, Tucson,
Arizona; Michael Garth Moore, Tucson, Arizona; for
Plaintiff-Appellant.
Michael K. Goodwin (argued), Assistant Attorney General;
Mark Brnovich, Attorney General; Office of the Attorney
General, Phoenix, Arizona; for Defendants-Appellees.
Kolya D. Glick (argued), Andrew T. Tutt, and R. Stanton
Jones, Arnold & Porter Kaye Scholer LLP, Washington,
D.C., for Amicus Curiae National Police Accountability
Project (NPAP).
OPINION
SCHROEDER, Circuit Judge:
It has been well accepted for more than fifty years that
public employees have First Amendment rights to speak out
on matters of public interest and concern, so long as the
speech does not interfere with the legitimate and orderly
administration of government operations. See Connick v.
Myers, 461 U.S. 138, 147 (1983), Pickering v. Bd. of Ed. of
Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568
(1968). In this case, the plaintiff claims that state employees
have violated those rights by retaliating against protected
speech. In such cases it has often proved difficult to draw the
line between speech that is shielded by the First
Amendment–because the employee is speaking as a citizen
about matters of public concern–and speech as a public
employee which amounts to sanctionable employee

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OHLSON V. BRADY 5
misconduct. See, e.g., Dahlia v. Rodriguez, 735 F.3d 1060,
1068–76 (9th Cir. 2013) (en banc).
The plaintiff, Greg Ohlson, was a forensic scientist
employed by the state of Arizona in the Arizona Department
of Public Safety, Scientific Analysis Bureau (“Department”),
an agency that analyzes blood samples for alcohol content.
His job was to test the samples and report the findings, and to
testify about those findings in court proceedings. Samples
were analyzed in batches that included samples from several
different defendants.
When a report on an individual’s blood sample was
requested, the Department policy was to report the result for
that individual. Ohlson, however, believed defense attorneys
could better evaluate the accuracy of the result if the samples
of the individual in question were reported along with the
results for the entire batch of samples with which that
individual’s samples were tested. Contrary to his superiors’
orders, he said so, both in communications within the
Department and with defense attorneys, and in court hearings.
He was disciplined and eventually forced to retire.
There is no dispute that the plaintiff’s advocacy led to the
employer’s action against him. Nor is there any serious
dispute that what he was speaking about–the manner in which
forensic evidence is produced and presented in court–is a
matter of public concern. The only serious dispute is whether
his speech should be treated as that of a private citizen
exercising the right protected by the First Amendment to
criticize the government, or as that of a government employee
subject to discipline for undermining agency administration
and public confidence in agency operations.

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OHLSON V. BRADY 6
The district court concluded that the speech was protected
expression but entered judgment in favor of the government
on grounds of qualified immunity. The district court’s
conclusion that Ohlson spoke as a private citizen, and
therefore that his speech was protected, was based in large
part on the fact that Ohlson spoke against his supervisors’
orders. In the district court’s view, this was strong evidence
that the speech should be protected. We disagree with this
aspect of the district court’s reasoning. Protecting speech
because it violates a supervisor’s order would make it
difficult for an agency to enforce any rules, even those
necessary to preserve proper agency administration. See
Pickering, 391 U.S. at 568.
The district court looked to the Supreme Court’s decision
in Pickering, insofar as it calls for a balancing of the First
Amendment interests of the plaintiff with the interests of the
government. The district court emphasized that Ohlson spoke
out against Department procedures when he was a witness in
court proceedings. The district court concluded that because
all citizens have a duty to testify when subpoenaed to do so,
Ohlson was speaking in court as a citizen rather than as an
employee. We have some doubts about this conclusion as
well, because testifying in court was part of Ohlson’s job
duties. He was not called upon to testify as a private citizen.
Whether testimony given as part of a government employee’s
job duties is protected speech is a question the Supreme Court
has left open. Lane v. Franks, 573 U.S. 228, 238 n.4 (2014).
In weighing the First Amendment interests of the plaintiff
against the interests of the state, the district court said that the
state agency had not identified any particular injury to the
state, so the scales tipped strongly toward Ohlson. Our
analysis comes out somewhat differently. Ohlson was

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OHLSON V. BRADY 7
advocating, in the course of his employment duties, for a
different and, in his view, better way the agency should report
results. At least conceivably, this could have adversely
affected confidence in the accuracy of the results as well as
in the agency that was reporting them. The Department was
duly licensed and accredited. Its operations, including the
manner of reporting test results, were in accord with industry
standards. We cannot say that the defendants failed to
identify any possible injury.
With respect to liability, the district court held that the
defendants were entitled to judgment because the defendants
had not violated any clearly established law. We agree with
that conclusion, and affirm the district court’s judgment in
favor of the defendants.
BACKGROUND
Greg Ohlson began working at the Department in 2004.
Defendants include Joe Tripoli, Ohlson’s supervisor, Beth
Brady-Morris, Tripoli’s supervisor and the Crime Lab
Manager, and Vincent Figarelli, Brady-Morris’s supervisor
and the Superintendent of the Scientific Analysis Bureau.
Ohlson started as a lab analyst in the drug toxicology unit and
transferred to the alcohol unit in 2015. At the alcohol unit in
2016, he was the most senior level forensic scientist.
The Department has a variety of quality control policies.
Most relevant here is the Department’s approach to ensuring
accuracy among blood samples by looking at an entire batch
of samples. When the Department receives blood alcohol
samples from law enforcement agencies, it analyzes each
individual sample. A “batch” of samples is then reviewed.
The Department’s quality assurance manual policy and

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OHLSON V. BRADY 8
national standards require this step to ensure non-
conformities in batches are identified and to catch instrument
failures or malfunctions skewing results. Under Department
policy, individual sample results are released to a defendant,
but, absent a court order, not the other samples in the batch.
They may be viewed at the lab, however.
The Department is nationally accredited, and its
laboratory policies and protocols have been approved by the
appropriate accrediting body. The Department sought
Ohslon’s input on laboratory policies on several occasions,
and he became increasingly insistent on certain policy
changes. Ohlson felt strongly that the Department should
make the results of all of the samples within a batch readily
available to the criminal defendants; he suggested making the
batch data public by releasing it on a website. Ohlson
brought this up in conversations with Brady-Morris and
Tripoli on numerous occasions. He was told to put it in
writing, and he sent this suggestion, and many others, in
emails to his supervisors.
Ohlson’s supervisors informed him that, though the
release of batch results may be a good idea, it was not
feasible because the Department would need technological
help, and Ohlson’s supervisors were not in a position to make
that Department-wide decision.
Contrary to Department policy, Ohlson then began
creating a private PDF file of all of the data within batches.
As part of his job, Ohlson regularly conducted pre-trial
interviews with defense attorneys. In those interviews, he
began instructing them to request the production of data for
the entire batch.

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OHLSON V. BRADY 9
Also, as part of Ohlson’s job as an analyst, he regularly
testified in state court proceedings. Either side could
subpoena Ohlson to testify. In his deposition he said he did
so over a hundred times. Another laboratory employee also
testified that blood-alcohol analysts regularly testify in court.
While testifying, Ohlson was regarded as on duty and
provided a Department vehicle to get to court.
In May 2016, Ohlson testified, in the case of State v.
Worthen, that he felt the disclosure of the entire batch was
necessary to ensure accuracy of the result, and testified
further that he had a PDF of the batch results that he could
send to the parties if permitted to do so. On June 29, 2016, as
a result of this testimony, Ohlson’s supervisors told him he
had violated Department policy, and counseled him to bring
his future testimony in line with that of laboratory policy and
to delete the PDF files.
He reacted strongly, requesting a meeting with the
Assistant Director, venting to a coworker, and meeting with
a manager. Ohlson’s supervisors then gave him a
Performance Notation that instructed him to, among other
things, adhere to general lab policies, cease his personal
scanning of batch results, cease use of legal proceedings to
advance personal views, and modify testimony to bring it in
alignment with the Department’s positions. Ohlson wrote
“Unable to comply completely” by the relevant paragraphs.
Ohlson was called upon a few days later to testify in
another evidentiary hearing, State v. Morel. Defense counsel
in that case had sought the batch report, apparently per
Ohlson’s suggestion, because they had spoken earlier. The
state had declined to produce it, taking the position that the
other results within the batch were not relevant to the

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OHLSON V. BRADY 10
defendant’s blood results. The defense attorney specifically
questioned Ohlson about his scanning of the batch tests
results, the complexity of that process, and whether it was
against Department policy to produce the batch results. The
attorney asked whether there had been a situation where the
batch samples had shown a problem with the Department’s
methods or equipment. Ohlson responded: “Not personally
in the last year, but I’ve been doing this for 35 years, so I
have seen circumstances that have caused that to happen,
which is why I have my specific position in this.” The
attorney followed up: “And what is your specific position in
this?” Ohlson answered that his personal belief was that
batch results should be disclosed. Further, he expressed his
disagreement with his superiors, and closed by recognizing
that it was not in his “best interest in terms of career
advancement” to testify as he had. He also stated that he had
been instructed to delete his private copies of batch results.
Following this testimony, Ohlson was placed on
administrative leave pending an investigation by the
Department’s Professional Standards Unit. In November, the
investigation resulted in a 16-hour suspension, followed later
that month by Ohlson giving notice of his retirement.
Ohlson then filed a complaint in federal district court
alleging, as relevant here, a First Amendment retaliation
claim for “testifying truthfully and completely under oath in
the [Worthen and Morel cases], and in 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 granted defendants’ summary
judgment motion, holding that Olson established a violation
of his First Amendment rights, but failed to show that they
were clearly established. The district court analyzed the

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OHLSON V. BRADY 11
allegations of retaliation for both the internal advocacy and
testimony, and held that Ohlson established a violation of his
First Amendment rights with respect to both types of speech.
Addressing first whether Ohlson’s speech was on a matter
of public concern, the district court held that it was because
his “advocacy involved [the Department’s] duty to serve the
criminal justice system by improving . . . access to accurate
test results.” The district court held that Ohlson’s speech was
made as a private citizen principally because, though
Ohlson’s job responsibilities involved testifying in court and
updating scientific methodology, his supervisors told him to
stop advocating and he nevertheless persisted. The district
court also noted that Ohlson’s internal advocacy went outside
of his chain of command when he spoke “with attorneys
privately about the importance of receiving results in a
batch.” See Dahlia, 735 F.3d at 1074.
Defendants argued before the district court that, under
Pickering, the state’s interests as an employer in promoting
efficiency in public services outweighed Ohlson’s interest in
commenting on matters of public concern. Defendants
contended that Ohlson’s role as “the public face of [an]
organization” made his advocacy particularly harmful to the
effective operation of the Department.
The district court concluded that the government had
failed “to indicate how its legitimate interests suffered
particularized injury as a result of [Ohlson’s] speech.”
Nevertheless, it granted summary judgment to the defendants
on the basis of qualified immunity, holding Ohlson’s First
Amendment rights were not clearly established.

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OHLSON V. BRADY 12
On appeal, Ohlson argues that the defendants were not
entitled to qualified immunity because their violations of his
First Amendment rights, particularly his right to testify
truthfully in court, were clear. Defendants maintain that,
even if they violated the First Amendment, they are entitled
to immunity and further contend there were no violations
because Ohlson was at all times speaking pursuant to his
official responsibilities, and not as a private citizen exercising
First Amendment rights.
DISCUSSION
A. Legal Background
This has not been an easy case for the district court or for
this court, at least in part because the key decisions of the
United States Supreme Court span a period of over four
decades. This contributed to the district court’s conclusion
that, although, in the court’s view, the actions of the
defendants in this case violated Ohlson’s First Amendment
Rights, those rights were not so clearly established that the
defendants should have known they were committing
constitutional transgressions. A review of the Supreme Court
decisions, and our court’s efforts to apply them, demonstrates
why we must agree that the plaintiff’s rights were not clearly
established. Where, as here, an employee, in the course of
doing the job, has expressed views the employer regards as
contrary to its interests, controlling legal principles remain
particularly uncertain.
Our review begins with the tumultuous decade of the
1960’s when freedom of expression was the focus of seminal
First Amendment cases. See, e.g., New York Times Co. v.
Sullivan, 376 U.S. 254 (1964); Tinker v. Des Moines Indep.

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OHLSON V. BRADY 13
Cmty. Sch. Dist., 393 U.S. 503 (1969). With respect to the
rights of government employees, we look to Pickering,
391 U.S. 563. That was the classic case of the public school
teacher who was fired for writing a letter to the editor of the
local paper criticizing the budgetary actions of the school
board. The Court said its task was to arrive at a “balance
between the interests of the teacher, as a citizen, in
commenting upon matters of public concern and the interest
of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.” Id. at
568. The analysis became known as the Pickering balancing
test. See, e.g., Moser v. Las Vegas Metro. Police Dep’t,
984 F.3d 900, 905 (9th Cir. 2021).
In ruling for the teacher, the Court held that the First
Amendment interests of the teacher outweighed the
administrative interests of the Board. The teacher had a First
Amendment interest in expressing his views, he had not
seriously interfered with the Board’s functions, and the
subject was one of public concern. Pickering, 391 U.S.
at 571–73. The interest of the school board was no greater
than it would have been had the speaker been an ordinary
citizen. Id. at 572–73.
Just short of two decades later, the Court found the
balance went the other way in Connick, 461 U.S. 138. There,
a disgruntled government employee circulated a nasty
questionnaire to fellow employees that was critical of the
employer and intended as a salvo in what was essentially a
personnel dispute. Id. at 141. The employee was
commenting on matters of public concern “in only a most
limited sense,” and the employer, in disciplining the
employee, was upholding legitimate administrative interests.
Id. at 151–54.

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OHLSON V. BRADY 14
The problem for the courts was different in Garcetti v.
Ceballos, 547 U.S. 410 (2006). There the employee had
expressed disagreement with a superior’s decision on a matter
of public concern, but the employee had done so in the course
of performing his job duties. Id. at 420–22. The plaintiff was
a deputy district attorney who had been disciplined for
sharply criticizing his supervisor’s decision to pursue a case
involving what the deputy thought were serious “inaccuracies
in an affidavit used to obtain a critical search warrant.” Id.
at 413–15. The Supreme Court majority there reversed our
court’s decision in favor of the deputy, with the Supreme
Court stressing that the deputy was not speaking as a citizen
but pursuant to his duties in the district attorney’s office. Id.
at 424–26. The dissenters lamented an apparent loss of the
Pickering balancing test. Id. at 427–44 (Souter, J.,
dissenting); Id. at 444–50 (Breyer, J., dissenting).
Our court endeavored to articulate the Supreme Court’s
guidance to that point. Eng v. Cooley, 552 F.3d 1062 (9th
Cir. 2009). We there noted the “tangled history” of public
employee free speech law, and clarified that the Pickering
balancing test could be distilled into five factors:
(1) whether the plaintiff spoke on a matter of
public concern;
(2) whether the plaintiff spoke as a private
citizen or public employee;
(3) whether the plaintiff’s protected speech
was a substantial or motivating factor in the
adverse employment action;

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OHLSON V. BRADY 15
(4) whether the state had an adequate
justification for treating the employee
differently from other members of the general
public; and
(5) whether the state would have taken the
adverse employment action even absent the
protected speech.
Id. at 1070.
Eng explained that, at the fourth step, the burden shifts to
the defendants to show that “the state’s legitimate
administrative interests outweigh the employee’s First
Amendment rights.” Id. at 1071 (quotation marks and
citation omitted). The court further observed that, though the
balance is “ultimately a legal question,” it often turns on an
underlying factual question of whether the state had an
“adequate justification” in restricting the speech. Id.
at 1071–72.
It was after Eng, and still in the wake of the Supreme
Court’s Garcetti decision, that our court decided Dahlia, on
which the district court in this case principally relied. We
went en banc to overrule an earlier decision of this court that
had applied Garcetti to hold that an employee acting pursuant
to his job duties is never protected by the First Amendment.
See Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.
2009). The plaintiff in Dahlia was a detective for the
Burbank Police Department who had reported police
misconduct both internally and to the Los Angeles County
Sheriff’s’s Department. Dahlia, 735 F.3d at 1064–65.
Looking to the Pickering balancing analysis, the majority
concluded that the employee’s speech was not within the

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OHLSON V. BRADY 16
scope of his duties, emphasizing that the Supreme Court’s
analysis in Garcetti embodied some flexibility because of its
fact-intensive nature. Id. at 1067, 1074, 1076–78.
We outlined some “guiding principles” to
determine whether public employees are speaking as private
citizens: (1) whether or not the employee had confined his
communications to his chain of command; (2) the subject
matter of the communication; and (3) whether the employee’s
speech was in “direct contravention” of his supervisor’s
orders, which our court said indicates the “speech may often
fall outside of the speaker’s professional duties.” Id.
at 1074–75. Dahlia said that the first, “chain of command,”
factor was “a relevant, if not necessarily dispositive, factor.”
Id. at 1074. Thus, in holding the plaintiff was speaking as a
citizen, the opinion emphasized that the plaintiff had gone
outside his agency’s chain of command to report the
misconduct. Id. at 1077–78. The majority rejected the view
of the concurrence, which had stressed that the plaintiff’s job
required him to report misconduct and that in its opinion
Garcetti announced a bright-line rule that conduct in the
course of performing required duties is not protected. Id.
at 1069 n.7.
In Dahlia, it was important to the majority that the
plaintiff had reported the misconduct beyond his superiors
and outside the chain of command in order to differentiate
that situation from Garcetti, where the criticism of the
employee’s superiors was made in the course of
communications required as part of the job. Id. at 1077–78.
This distinction supported the majority’s conclusion that the
plaintiff was speaking as a private citizen rather than as an
employee. Id. The plaintiff had gone outside the scope of his
regular job duties to report misconduct.

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OHLSON V. BRADY 17
The district court in this case, however, focused on a
different Dahlia “guiding principle”: whether the employee
was speaking in contravention of his supervisors’ orders. The
court relied on that principle to conclude that Ohlson was
speaking as a citizen rather than as an employee.
The problem for us in this case, however, is that when
Ohlson contravened orders, he was at all times speaking in
the course of his employment duties–whether conducting pre-
trial interviews with attorneys, advocating within the
Department for different procedures, or speaking more
publicly as a witness called to testify on behalf of the
Department as part of his job. As Pickering itself counseled,
the interests of the government agency in orderly
administration must be considered and weighed against the
First Amendment interests of the speaker. Speaking in
defiance of orders does not, by itself, trigger First
Amendment protection, and we do not believe Dahlia stands
for that proposition. This is because orderly government
administration requires there to be some rules about
employee conduct and misconduct. Insubordination cannot
be regarded as per se protected activity. Yet the district
court’s analysis, in treating speech as protected because it was
uttered in defiance of orders, comes close to holding just that.
The district court did not take into account the fact that
Ohlson was testifying in court as the Department’s employee,
and that the Department had an interest in what he said.
Neither Dahlia nor the Supreme Court cases preceding it
involved an employee’s testimony in court. The year after
Dahlia, however, a decision of the Supreme Court did. Lane,
573 U.S. 228. What the Supreme Court held and did not hold
in Lane serves to highlight the difficulties in distinguishing
between protected and unprotected speech when an

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OHLSON V. BRADY 18
employee’s testimony, as in this case, concerns the
employee’s job.
In Lane, the plaintiff was a director of a community
college program who had exposed malfeasance of a
subordinate employee and then testified as a fact witness in
the subsequent criminal trials. Id. at 231–33. The plaintiff
was fired on the basis of that testimony. Id. at 233–34. In the
plaintiff’s suit against the employer for violating his right to
free speech, the Eleventh Circuit held that, in testifying, the
plaintiff had spoken as an employee, not as a citizen, and his
speech was not protected. Id. at 235. The Supreme Court
disagreed. Id. at 241. The Court held that the plaintiff as a
citizen had a duty to testify when subpoenaed to do so and
was therefore speaking as a citizen, not as an employee. Id.
It employed the Pickering balancing test to determine that the
government lacked any adequate justification to discipline the
plaintiff. Id. at 242. The Court observed that his testimony
was not false or erroneous and that he made no improper
disclosures. Id. The plaintiff’s job as a program director did
not require him to testify, and he was testifying outside the
duties of his job. The majority opinion stressed that as an
employee, the plaintiff must be protected when performing a
duty to testify that is required by all citizens and not a duty
imposed solely as a result of his job duties. Id. at 238. This
was critical to the Court’s conclusion that the plaintiff’s
speech was protected by the First Amendment.
The Court nonetheless held that the plaintiff’s rights were
not clearly established at the time of the violation; the law of
the Eleventh Circuit supported the defendants in that case and
they could not have known the Supreme Court would
overrule it. Id. at 243–46. The Court held the defendants
were therefore entitled to qualified immunity. Id. at 243. A

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OHLSON V. BRADY 19
special concurrence by Justice Thomas expressly reserved the
question of whether testimony given as part of the duties of
the job, like those of a policeman or laboratory analyst, would
be protected. Id. at 247 (Thomas, J., concurring). Lane
opens the door to the case before us.
Ohlson claims that both his testimony in court and his
advocacy in the workplace concerning the production of
batch results were protected by the First Amendment. We
deal with them in turn.
B. Ohlson’s Testimony
This case, unlike Lane, concerns testimony by an
employee who was required to testify as part of his
government employment. Ohlson’s job duties included
analyzing blood samples, producing the testing results when
they were requested by defense counsel, and explaining the
results in court testimony when called upon to do so. Ohlson
was disciplined in large part because, in his testimony in two
separate cases, he had expressed his view that flaws in testing
could be better identified if the Department disclosed
requested testing results in batches rather than individually.
Such disclosure was contrary to the Department’s practice,
one that had met industry standards. Ohlson believed his idea
was better and violated orders not to so testify. He contends
the resulting discipline violated his First Amendment rights
because his testimony was protected speech.
The only relevant Supreme Court decision bearing on
whether court testimony is protected is Lane, 573 U.S. 228.
That case, however, involved testimony of an individual who
had been subpoenaed as a fact witness at a criminal trial of
another employee. Id. at 231–33. As we have noted, the

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OHLSON V. BRADY 20
witness in Lane was not required to testify as part of his job
duties. Whether testimony given pursuant to the duties of a
government job is protected by the First Amendment was an
issue explicitly left open in Lane. In holding the testimony in
that case was protected, the concurrence emphasized that the
Lane holding did not apply to individuals, such as “laboratory
analysts,” who testify pursuant to job duties. Id. at 247
(Thomas, J., concurring) (citations omitted). Ohlson is one
such laboratory analyst. His case is therefore the one Lane
pointedly did not decide.
Thus, the opinion and concurrence in Lane, together with
the lack of authority on the matter since Lane, compel us to
conclude that there is no clearly established law protecting
the testimony that Ohlson gave in the course of performing
his duties as a laboratory analyst for the state. We deal with
it as an issue of first impression.
To the extent Ohlson contended in the district court that
his testimony concerning batch production was spoken as a
private citizen because he was speaking in defiance of orders,
the district court seemed to agree. We believe the district
court’s ruling in this regard was founded upon a
misunderstanding of our opinion in Dahlia, 735 F.3d 1060.
There, in providing some “guiding principles” to determine
when the employee’s speech was within the scope of his
duties, we stated that “no single formulation of factors can
encompass the full set of inquiries relevant to determining the
scope of a plaintiff’s job duties.” Id. at 1074. Importantly,
we decided Dahlia before we had the benefit of Lane, where
the Supreme Court went out of its way to leave open the
question of whether testimony pursuant to job duties can be
protected speech.

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OHLSON V. BRADY 21
In Dahlia, we were writing in the aftermath of Garcetti,
which had proven problematic in that it had compelled a
panel of our court to apply a rigid rule that expression within
the scope of an employee’s job duties was never protected.
See Huppert, 574 F.3d 696, overruled by Dahlia, 735 F.3d
1060. We held in Dahlia that Garcetti called for a more
practical approach. 735 F.3d at 1069–70. The most
important factor in Dahlia was that the employee reported the
misconduct “outside his chain of command.” Id. at 1074,
1077–78. The subject matter of the speech was also
important, with routine incident reports falling within the
scope of duties, and concerns about “corruption or systemic
abuse” likely falling outside. Id. at 1074–75. Third, we said
that when a public employee “speaks in direct contravention
to his supervisor’s orders, that speech may often fall outside
the speaker’s professional duties,” especially if the speaker is
threatened or harassed by superiors. Id. at 1075–76.
Dahlia does not stand for the proposition that speech in
defiance of orders is always a strong indication that an
employee is speaking as a private citizen and the speech
protected, although that appears to have been the district
court’s interpretation. Such an interpretation could lead to
protecting not only those government employees exercising
First Amendment rights to speak freely about matters of
public concern, but also to protecting those employees
defying legitimate orders aimed at deterring employee
misconduct. This would incentivize insubordination and
make government administration more difficult. Dahlia laid
down no hard and fast rules, and could not do so in light of
Pickering’s balancing test that requires weighing the interests
of both sides.

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OHLSON V. BRADY 22
The district court decided the case on summary judgment
without considering evidence of the scientific merit to both
parties’ positions, or the full administrative impacts of
Ohlson’s advocacy on the Department. We believe further
proceedings on those issues would be required for an actual
balancing of interests. We recognized in Eng that, while the
balancing inquiry is a legal requirement, it often comes down
to factual disputes about the value of competing interests.
552 F.3d at 1071. We do not attempt to resolve any such
dispute or engage in the weighing of interests here.
We do know that Ohlson was a qualified professional
employee, and the procedures used by the Department met
applicable standards. With these two opposing interests, this
case is not like Lane or Dahlia, where the speech in question
was exposing corruption and held to be protected. This case
is also unlike Pickering, where the employer had no greater
interest in the content of the speech than if the speech was
that of a member of the general public rather than of a
government employee. 391 U.S. at 572–73. Ohlson’s
testimony was given as an expert explaining the testing
process, and, as we have seen, would have a much greater
potential impact on public perception and confidence in
laboratory procedures than would views expressed by a lay
member of the public. On the basis of the record before us,
we express no opinion as to whether the interests of Ohlson,
in publicly expressing his views on better laboratory
procedures, outweighed the interests of defendants in the
administration of their duties. We see the balancing inquiry
as more difficult than the district court perceived it, and
disagree with its view on summary judgment that the balance
clearly favors Ohlson.

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OHLSON V. BRADY 23
What is abundantly clear to us, as it was to the district
court, is that the law is not clearly established, and the
defendants are entitled to qualified immunity.
C. Ohlson’s Internal Advocacy
Ohlson alleges that he was also retaliated against for
internal advocacy he conducted within the Department. His
complaint alleged retaliation for “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 analyzed this claim together
with the claim for retaliation against protected testimonial
speech. It held the merits favored Ohlson in both claims but
that the defendants were entitled to qualified immunity for
both because no law clearly established Ohlson’s rights.
The Supreme Court has said that a constitutional right is
clearly established when “any reasonable official in the
defendant’s shoes would have understood that they were
violating [a plaintiff’s constitutional right].” Plumhoff v.
Rickard, 572 U.S. 765, 779 (2014) (citations omitted). No
“directly on point” case is required, but the constitutional
question must be “beyond debate.” Kramer v. Cullinan,
878 F.3d 1156, 1163 (9th Cir. 2018) (citations omitted). We
have been directed to no case recognizing a First Amendment
violation with respect to governmental action against an
employee’s speech within the workplace. We did recognize
such a violation in Garcetti, but we were reversed by the
Supreme Court. Ohlson is therefore not able to show that the
Department violated clearly established law with respect to
this claim.

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OHLSON V. BRADY 24
CONCLUSION
The judgment of the district court in favor the defendants
on grounds of qualified immunity is AFFIRMED.

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