The Ninth Circuit reinstated a First Amendment retaliation claim brought by Pleasanton, California, Police Department (PPD) Officer Peter McNeff, holding that he plausibly alleged that Police Chief David Swing terminated him because of protected political expression. The Court reversed the district court’s dismissal, concluding that McNeff adequately pleaded both causation and the violation of a clearly established constitutional right, defeating qualified immunity at the motion to dismiss stage.
According to the complaint, McNeff attended a political rally. A few days after Swing learned of his attendance, Swing placed him on administrative leave. At roughly the same time, an anonymous complaint identified several Facebook posts McNeff had made more than six years earlier, prior to his employment with the Department. During McNeff’s pre-employment screening, he had disclosed his Facebook account to a PPD investigator, who “did not find any of the postings objectionable.” None of the posts had been disruptive, and no one inside or outside the Department had been aware of them before the rally.
Despite McNeff’s undisputedly “stellar” performance record, Swing initiated an investigation immediately after receiving the anonymous complaint. Over the next two months, Swing searched through McNeff’s social media history without informing him of the basis for the investigation. McNeff alleged that this was part of “a concerted effort” by Swing and “the liberal PPD leadership” to remove officers with conservative political views. At the end of the investigation, Swing terminated McNeff’s employment.
To state a First Amendment retaliation claim, a public employee must allege that protected private speech was a substantial or motivating factor in the adverse action and was a but-for cause of that action, “meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” The Court explained that motive may be shown with direct or circumstantial evidence and is typically a jury question.
The Ninth Circuit held that McNeff adequately pleaded causation in two independent ways.
First, McNeff plausibly pleaded that he was terminated based on his social media posts. Because the Department itself identified the posts as the reason for firing him, McNeff’s allegations established but-for causation at the pleading stage.
Second, the timing and circumstances plausibly supported the inference that the Department relied on the posts as a pretext to punish McNeff for attending the political rally. Swing acted only days after learning that McNeff attended the rally — but more than six years after the posts were made and long after the Department had already reviewed and approved them during hiring. The Court cited this temporal proximity, together with the Department’s prior acceptance of the posts, as circumstantial evidence of retaliatory motive.
The Ninth Circuit also rejected the district court’s conclusion that receipt of the anonymous complaint supplied a legitimate, independent rationale for the termination. Whether the employer would have taken the same action for a non-retaliatory reason is an affirmative defense that ordinarily cannot be resolved on a motion to dismiss. At this stage, McNeff was not required to disprove alternative motives; instead, he needed only to allege facts plausibly showing that retaliation was the motivating cause.
Finally, the Court held that the Department could not prevail based on qualified immunity, because McNeff plausibly alleged a constitutional violation of his right to be free from termination based on protected political expression, which is a clearly established right.
McNeff v. Pleasanton Police Dep’t, 2025 WL 3034697 (9th Cir. Oct. 30, 2025).