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Botello v. Gammick
Citation: 347 F. App'x 277Docket: No. 07-17243
Court: Court of Appeals for the Ninth Circuit; June 12, 2009; Federal Appellate Court
Adriana Botello, as administrator of Rene Botello's estate, appeals the district court's judgment favoring District Attorney Richard Gammick and others in a First Amendment retaliation case. The appellate court affirms part of the decision, reverses another part, and remands for further proceedings. To establish a First Amendment retaliation claim against a government employer, a government employee must demonstrate that (1) they engaged in protected speech, (2) the employer took adverse employment action, and (3) the speech was a significant factor in the adverse action. The court found the district court erred in ruling that Botello did not engage in constitutionally protected speech. His comments to the Nevada Attorney General about potential inaccuracies in the Child Abuse Response and Evaluation Services (CARES) program were deemed to pertain to public concern and were made as a private citizen, not within the scope of his official duties. The district court correctly concluded that the defendants did not take adverse action related to Botello's employment as a school police officer, as prosecutors are absolutely immune from liability for their decisions regarding witness use. However, the court erred by excluding evidence regarding Gammick's alleged interference with Botello's position as a truancy officer, which was included in the pre-trial order and had been adequately notified to the parties. The appellate court found this error significant since it was not harmless, and the prosecutors could not claim absolute immunity for actions unrelated to their judicial functions. The case is remanded for the district court to determine if Gammick’s actions regarding the truancy officer position constituted adverse action motivated by Botello's protected speech. The decision is not published and does not set precedent.