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SAN FRANCISCO (CN) — Former Oakland Police Chief LeRonne Armstrong was dealt another setback in court Thursday when a judge denied his second attempt to sue the city of Oakland over his claims that he was terminated in retaliation for protected whistleblower activity.
Alameda Superior Court Judge Peter Borkon issued a tentative ruling granting**** the city’s request challenging Armstrong’s second amended complaint, finding that Armstrong’s claims do not rise to the level of whistleblower protections.
Borkon said that Armstrong did not clearly specify what he said during a call with ex-Oakland Mayor Sheng Thao and then-City Administrator Ed Reiskin on Jan. 19, 2023 — the sole basis of his retaliation claim.
Borken also said that Armstrong failed to provide objective facts to support his claim that Robert Warshaw — the federal monitor over the Oakland Police Department — was violating the law.
He further added that Armstrong’s claims that Warshaw was acting unlawfully to personally enrich himself are “speculative and fail to meet the objective standard.”
Borkon gave Armstrong a final chance to amend his complaint to state a claim for whistleblower retaliation to be filed within 10 days.
On Jan. 19, 2023, Armstrong was placed on leave after a federal judge made public a scathing report of officer misconduct identified in three confidential investigations. The investigation found that internal investigators mishandled a case involving a sergeant who failed to report crashing his police vehicle and fired his gun inside a city building.
Oakland Police Department has been under a federal monitor for more than two decades after a string of scandals involving multiple police officers — including accusations of police brutality and sexual assault — sparking national outcry and many protests.
While on leave, Armstrong repeatedly slammed Warshaw and the city of Oakland, attending a rally to demand reinstatement, where he accused the federal monitor of manufacturing crises to extend oversight for his own personal profit.
Then still mayor, Thao fired Armstrong on Feb. 15, 2023, attributing her decision to January’s report. She also cited Armstrong’s denial of findings of serious issues inside his department.
A year later, Armstrong filed a lawsuit in Alameda Superior Court, claiming that the city and Thao violated his First Amendment rights to free speech and retaliated against him for protected “whistleblowing activities.”
“In sum, Chief Armstrong raised complaints of actual and/or potential illegality … while working working for the city, and the city retaliated against him by taking adverse employment actions, including placement on leave, termination, and the failure to rehire him notwithstanding the Police Commission’s support and revelations that the criticisms of Armstrong’s performance had no merit,” Armstrong said in his complaint.
After the case was removed to federal court, U.S. District Judge Trina Thompson, a Joe Biden appointee, rejected Armstrong’s argument, ruling that Thao was protected from the lawsuit because Armstrong was a “policymaker” who could be legally fired by the mayor for political reasons. However, she sent the retaliation for whistleblowing claims back to the lower court for re-examination.
“By criticizing the federal monitor, with ‘extensive’ news coverage of those criticisms, and stating that the federal monitor was attempting to ‘extend his lucrative monitoring contract,’ Armstrong was undermining the ability of Mayor Thao’s administration to work with the monitor assigned by the court to oversee OPD,” Thompson said in her decision.
In March, Borkon granted the city’s request for demurrer over Armstrong’s first amended complaint, ruling that Armstrong had not properly established protected whistleblower activity. However, he granted Armstrong leave to amend to file a second amended complaint to include specific claims of what he said during the communications, who he talked to, and what law he reasonably believed Warshaw was violating.
The city of Oakland declined to comment.
Representatives for Armstrong did not immediately respond to a request for comment.
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