dissenting:
I respectfully dissent.
Former police officers Ron Huppert and Javier Salgado (“Plaintiffs”) sued their former employer, the City of Pittsburg, California, and several individual members of the Pittsburg Police Department (“PPD”) (collectively, “Defendants”) under 42 *711U.S.C. § 1983 and several provisions of California law. Their § 1983 suit was primarily based on the contention that Defendants unlawfully retaliated against them for engaging in speech protected under the First Amendment. Huppert contends that he engaged in constitutionally protected speech on four occasions. Salgado contends that he engaged in constitutionally protected speech on the third of these occasions. Plaintiffs contend that Defendants unlawfully retaliated against them for this speech. The district court granted summary judgment against Plaintiffs on their First Amendment claims based on Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
The majority concludes that Huppert and Salgado’s speech on these four occasions was not protected under the First Amendment. I agree with the majority with respect to Huppert’s speech on the first occasion. But I disagree with the majority with respect to Huppert’s speech on the second, third, and fourth occasions and Salgado’s speech on the third occasion.
I. Factual Background
The majority opinion provides a somewhat truncated narrative of the evidence before the district court. I provide a more extended, free-standing narrative of that evidence, laying the full foundation for Huppert and Salgado’s First Amendment claims. I could have made my narrative shorter by adding discrete pieces of information to supplement the majority’s narrative in various places, but the result would have been choppy and awkward. My narrative is necessarily somewhat redundant, but it is intended to make the reader’s ultimate task easier. My narrative relies only on evidence in the record that is properly cognizable on summary judgment.
In his sworn declaration, Plaintiff Huppert states that he joined the PPD in 1991. In 1995, when he was a patrol officer, he was assigned to work a continuous 24-hour shift at the Pittsburg Seafood Festival. He requested a modification of the shift to allow breaks during the 24-hour period. After the request was denied, he consulted a labor attorney. Without Huppert’s knowledge, the attorney contacted the PPD. Defendant Aaron Baker was then a Lieutenant in the PPD. Then-Lieutenant Baker was “unhappy” with Huppert as a result of his complaint about his 24-hour shift. At Baker’s direction, Huppert was presented with a letter asking him to acknowledge his sick leave abuse. Huppert refused to sign the letter and demanded to see his “sick leave slips” for the relevant period. Huppert states that the matter was then “apparently dropped.”
Huppert states that in 1996, after he had been promoted to Inspector, he was assigned to investigate a vehicular manslaughter case. One of Huppert’s supervisors, Sergeant Keeler, had been pursuing a carjacking suspect at speeds of up to 100 m.p.h. without using his siren or emergency lights. During the chase, the suspect struck and killed an innocent third person. Huppert reported his “concerns about Keeler’s conduct during the pursuit.” He also reported Keeler’s use of “racial slurs, including ‘nigger’ and ‘gorilla’ with reference to African-Americans.” Keeler was a personal friend of Baker. Now a Commander, Baker charged Huppert with misconduct for not having previously reported Keeler’s use of racial slurs and sent him a “warning” letter. (In his sworn declaration, Baker calls it a “letter of advisement.”) Huppert states that even though Keeler’s use of racial slurs was verified by another officer, Baker concluded that Huppert’s report was “unfounded.”
*712Huppert states that in 1997 and 1998, he was selected by the Contra Costa County District Attorney to assist with an investigation into corruption at the public works yard. “From that time on, my superiors treated me with scorn and as an outcast.”
Huppert states that in 1998 he took the sergeant’s exam. He finished first on the written portion. During the oral portion of the exam, he was questioned “mostly” about his goatee. He was not promoted to sergeant. The day after the oral examination, Baker told him that he had been passed over because of the goatee.
Huppert states that sometime prior to 2001 he began cooperating with the FBI in an investigation of corruption in the PPD. Huppert characterizes this cooperation as being “outside [his] duties as a member of the PPD.” Defendant Baker had been promoted to Chief of Police in September 1998. Huppert states that Baker learned of his cooperation with the FBI and in 2001 had him transferred from Investigations to Code Enforcement. Commander William Hendricks was in charge of this unit. Hendricks states in his sworn declaration that the Code Enforcement unit “was known as the ‘Penal Colony’ because disaffected and/or disfavored officers were assigned there.” He states, “Chief Aaron Baker expressly ordered me to terminate plaintiff Huppert or force him to take a position outside the Department; then-Lieutenant William Zbacnik was present during this conversation.” Huppert states in his declaration that Hendricks told him that Baker had “told him to see that I left or find a way to fire me.”
Huppert states that Defendant Zbacnik told him that he was not allowed to work overtime for the six-month period between January and June 2001. Huppert was physically transferred from the newly rebuilt Pittsburg Civic Center to a building where the “Penal Colony” worked. Huppert’s office in the Penal Colony was a “tiny converted bathroom without computer access.” Even though Huppert was assigned to investigate gangs, the Penal Colony building did not have “a secured area that a Gang and Intelligence office would need.”
Plaintiff Salgado states in his sworn declaration that in September 2001 he was assigned to the Code Enforcement unit and became Huppert’s partner. Both Huppert and Salgado state that the City Manager then asked them to “investigate possible corruption at the City-owned golf course.” They state that Baker told them not to inform their superior, Hendricks, of the investigation. Their investigation “revealed improper conduct by members of the PPD, including gambling, accepting free golf, and possible illegal drug activity.” Hendricks states in his declaration that after two interviews and only one day of investigating, Baker ordered Huppert and Salgado to stop the investigation.
Hendricks states, “I tried to protect [Huppert and Salgado] from any retaliation. I went to the FBI with what I believed to be a major gambling operation, and told Baker that I had referred the matter to the FBI. I learned from my discussions with Chief Baker and others that Zbacnik, Lt. Robert Gomez, and other people under Zbacnik’s command were involved in illegal activity at the Golf Course. I told Baker that he may be violating the law by trying to bury the investigation by Huppert and Salgado. Baker threatened me with my career if I continued to press the matter.”
Huppert states that he and Salgado continued to investigate “with the knowledge and encouragement of Hendricks.” Hendricks states that Baker ordered them not to write a report, but Huppert states that he nonetheless reported their “initial findings” in an “ ‘abridged’ memo.” Huppert *713states that his report included “a finding that defendant Zbacnik had accepted thousands of dollars in gratuities and other illegal perks.” However, Baker took “no action” against Zbacnik, “calling Zbacnik’s actions a ‘training issue.’ ” Huppert states that he and Salgado informed only Baker and the City Manager of their findings. However, he stated that Ray Giacamelli, a member of the PPD and a personal friend of Zbacnik, told Huppert and Salgado that “we were sticking our noses where they did not belong and that we were ‘going to go down.’ ” Huppert and Salgado reported the threat to Baker, but Baker said that “no investigation was warranted.”
Huppert and Salgado state that in May 2002 the Code and Enforcement unit was moved back to the main Civic Center building. They were not given an office initially, but were eventually assigned one in “an old storage room.”
Huppert states that in December 2002, Hendricks was “forced out.” Defendant Michael Barbanica became the new supervisor of them unit. In January 2003, Barbaniea and Defendant William “Brian” Addington falsely accused Huppert and Salgado of having engaged in an improper pursuit. Huppert and Salgado state that neither of them had been involved in the pursuit in question. Barbanica initially said that an “ ‘anonymous concerned citizen’ ” had called to complain about Huppert and Salgado’s alleged pursuit, but Barbanica later admitted that he had made this up.
Huppert and Salgado state that in late 2003 and early 2004 their supervisor was Sergeant Reposa. When Reposa was absent, neither Huppert nor Salgado was permitted to serve as acting supervisor, even though that would have been the normal practice. Huppert and Salgado were thereby denied the opportunity to earn “out-of-class pay.”
Huppert and Salgado state that in February 2004, Defendant Wayne Derby became their supervisor. Derby informed them that he was Baker’s “ ‘hatchet man’ ” and that Baker saw them as “malcontents.” Derby took away the unmarked undercover car that Salgado had previously driven and replaced it with a Ford Taurus that, while unmarked, was “easily recognizable as a police vehicle.” Driving the Taurus “hindered” Huppert and Salgado’s “ability to function as gang detectives.”
Huppert states that in March 2004 he was subpoenaed to testify before a civil grand jury that was “probing corruption in the PPD.” Huppert had been contacted about the probe several years earlier by Senior Investigator Tom Leary of the Contra Costa County District Attorney’s Office. On what he describes as his “personal time,” Huppert had met with Leary, Deputy District Attorney Sepulveda, and FBI Special Agent Joe Davidson. Huppert states that Davidson told him that his “actions in connection with the probe were as an individual and not in my capacity as a member of the PPD.” Grand jury subpoenas were delivered to the PPD for service on about a dozen individual officers. Huppert was served with his subpoena in front of other PPD officers, and the subpoena was recorded in a log posted in the break room. Huppert states that Baker told him that he knew he had testified before the grand jury. However, Baker states in his declaration that “I was not aware that Huppert ever testified before the Grand Jury regarding these issues.” Baker states further, “I have never been informed of the substance of such testimony by Huppert.”
Huppert states that after he testified before the grand jury, Defendant Derby informed him that his position as gang investigator was being “eliminated.” Hup*714pert was transferred to the Investigations unit where his supervisor was Defendant Addington. Although detectives junior to Huppert were assigned to “person crimes,” Huppert was assigned to fraud, which was regarded as a less desirable assignment. After Huppert was assigned to fraud, Addington changed the procedure so that all fraud cases originating with the Patrol Bureau came to Huppert. Previously, fraud eases originating with the Patrol Bureau could be closed at that level. Under the new procedure, Huppert was required to close those cases and to write reports for all of them. Huppert states that the change was a “purposeless increase in workload intended to harass me.”
Huppert states that Addington engaged in numerous acts to make his work life difficult. For example, he sent reports back to Huppert “because of ‘flaws’ such as the letter ‘M’ (for ‘Male’) being in the wrong font”; he refused to allow Huppert to wear a uniform shirt with an out-of-date embroidered badge when other officers were permitted to do so; and he told Huppert to come see him because he had his “‘pink slip,’” and then said he was kidding. Further, Addington attempted to replace a “superlative” yearly evaluation of Huppert by Sergeant Stroup that was already in his personnel file with an evaluation of his own, even though Addington had not been Huppert’s supervisor at the time in question. After Huppert and the Patrol Officers’ Association filed a grievance against the PPD and Addington, Baker restored Stroup’s evaluation to Huppert’s file.
Beginning in April 2005, Huppert retired on disability due to a knee injury. He states in his declaration that elective surgery on his knee “might” have enabled him to return to active police work. “However, given the persistent and pervasive discrimination and harassment I suffered, the fact that my long-time partner, Salgado, was terminated after he began his association with me, and the other means by which the defendants in this action sought to destroy my career and the careers of other good officers, I accepted the disability retirement and elected not to undergo surgery.” (In the district court, Huppert claimed racial discrimination in violation of state law, and his reference to “discrimination” in the just-quoted sentence is a reference to that claim. Huppert has not appealed the district court’s summary judgment ruling on his state-law discrimination claim.)
Salgado states that in late 2003 and early 2004, Addington began investigating PPD Officer Jim Hartley for alleged falsification of reports. It was “apparent” to Salgado that “Addington disliked Hartley and was seeking to terminate him.” Addington attempted to persuade Salgado to “claim first-hand knowledge of incidents I had not witnessed.” Salgado refused.
Salgado states that in May 2004 he was placed on administrative leave pending an investigation into whether he had falsified reports in California Health and Safety Code § 11550 (“driving under the influence”) cases. Salgado states in his declaration that he “did ‘cut and paste’ when writing such reports,” but that this was “an accepted practice at the time in the PPD.” He states that “the individual test results for each suspect were accurately recorded.” Salgado states further that “cutting and pasting ... was actually encouraged by some supervisors.” “On several occasions defendants Barbaniea and Addington asked me to provide officers with one of my preformatted reports, and during the investigation of my reports I saw reports written by officers Raman, Albanese, and Wentz using my template. ... A number of the questioned reports that led to my termination were in *715fact reviewed and approved by defendants Addington and Barbanica, both of whom were also present at some of the arrests in question.”
Salgado states that in July 2004 he was given a Notice of Proposed Disciplinary Action proposing his termination from the PPD. Two days before his scheduled hearing under Skelly v. State Personnel Board, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 (1975), Salgado received a telephone call from a newspaper reporter who told him that Baker was planning to terminate him and that the District Attorney would bring a criminal prosecution. A newspaper article to that effect appeared on the day scheduled for the hearing. On advice of counsel, Salgado did not appear. Baker, performing as Acting City Manager, terminated Salgado’s employment three days later. Shortly thereafter, Baker reinstated Salgado. Defendant Barbanica then informed Salgado that if he resigned, all criminal charges would be dropped. Salgado learned, however, that his personnel file was being “purged of all positive references.” Salgado looked at his file and discovered that all of his good performance reviews had been removed, including his 2001 Officer of the Year award. Salgado did not resign and was formally terminated in late August 2004.
Defendant Addington testified in his deposition that one of the two Deputy District Attorneys to whom he spoke was reluctant to file criminal charges against Salgado. Addington testified that after he made “my own pitch” to the Deputy criminal charges were filed. Salgado pleaded no contest to five felony counts of falsifying reports in violation of California Penal Code § 118.5.
Except as noted during the course of the foregoing narrative, Defendants do not contest the factual accuracy of Huppert, Salgado, and Hendricks’ sworn declarations.
II. Legal Background
For nearly four decades, we determined whether a public employee’s speech was protected under the First Amendment by following the analysis in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Pickering, a public school teacher had sent a letter to the editor of the local newspaper criticizing the board of education and superintendent of schools for their handling of school funding. See id. at 564, 88 S.Ct. 1731. The teacher was fired in retaliation for the letter. He brought suit, claiming that the First Amendment protected his speech. The Supreme Court agreed, stating that speech deserves First Amendment protection when it addresses “a matter of legitimate public concern.” Id. at 571, 88 S.Ct. 1731.
The Supreme Court’s recent decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), has made it more difficult for government employees to establish that their speech is protected under the First Amendment. Ceballos, a deputy district attorney, concluded that an affidavit used to obtain a search warrant in a pending criminal case contained “serious misrepresentations.” Id. at 414, 126 S.Ct. 1951. He stated this in a “disposition memorandum” to his supervisors, who allegedly retaliated against him because of the memorandum. Id. at 414-15, 126 S.Ct. 1951. Ceballos brought suit under § 1983, claiming that his speech was protected under the First Amendment. The Court disagreed, holding that “when public employees make statements pursuant to their official duties, the ... First Amendment ... does not insulate their communications from employer discipline. Ceballos wrote his disposition *716memo because that is part of what he, as a calendar deputy, was employed to do.” Id. at 421, 126 S.Ct. 1951.
The Court wrote that “the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate.” Id. at 424, 126 S.Ct. 1951. However, the Court did provide a few guidelines. It explicitly rejected the “suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions.” Id. Rather, the Court stated that “[t]he proper inquiry is a practical one[,]” as “[fjormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform.” Id. at 424-25. The Court also noted that speaking in the workplace, rather than in public, does not necessarily mean that the speech was made pursuant to official duties. See id. at 420-21, 126 S.Ct. 1951. Furthermore, whether the speech concerns “the subject matter of [the speaker’s] employment ... is nondispositive.” Id. at 421, 126 S.Ct. 1951.
In four eases decided after Ceballos, we have addressed whether a government employee’s speech was made pursuant to his or her official duties. The first case is Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006), in which Freitag, a correctional officer at Pelican Bay Prison, complained that inmates were sexually harassing her and undermining her ability to impose discipline by repeatedly masturbating in front of her. Freitag first complained to her supervisors about the sexual harassment. She complained to them again after they repeatedly refused to take disciplinary action against the offending prisoners. For example, one of Freitag’s supervisors threw away the form on which she had reported masturbation, saying that she was the only person who had a problem with this inmate and that “it’s only sex.” Id. at 533.
When Freitag’s immediate supervisors continued to ignore and belittle her complaints, she wrote to the head of the California prison system, the Director of the California Department of Corrections and Rehabilitation (“CDCR”). After her supervisors retaliated against her for having written to the Director, Freitag contacted a state senator and California’s Office of the Inspector General (“Inspector General”), an independent agency that oversees the CDCR. Freitag’s supervisors further retaliated against her for having contacted the state senator and the Inspector General.
We were unsure, based on the record before us, whether Freitag’s letter to the Director of the CDCR was protected speech under the First Amendment. We remanded for a factual determination of the scope of Freitag’s “official duties,” stating that “[w]e are unsure whether prison guards are expected to air complaints ... all the way up to the Director.” Id. at 546. However, we were certain that Freitag had not spoken “pursuant to [her] official duties,” and that she was protected by the First Amendment, when she contacted the state senator and the Inspector General. Id. at 545. We wrote:
Freitag acted as a citizen when she wrote letters to Senator Polanco and communicated with the Inspector General regarding her complaints of sexual harassment. Her right to complain both to an elected public official and to an independent state agency is guaranteed to any citizen in a democratic society regardless of his status as a public employee. Under Ceballos, Freitag does not lose her right to speak as a citizen simply because she initiated the commu*717nications while at work or because they concerned the subject matter of her employment.
Id. (citations omitted); see also Fuerst v. Clarke, 454 F.3d 770 (7th Cir.2006) (holding that plaintiff deputy sheriffs adverse comments on the sheriffs decision to hire a public relations officer were not made pursuant to his official duties).
The second case is Marable v. Nitchman, 511 F.3d 924 (9th Cir.2007), in which Marable, a Chief Engineer in charge of the engine department of a ferry operated by the Washington State Ferries (“WSF”), complained of corrupt financial practices by WSF managers. He complained in two telephone calls to the Maintenance Director of the WSF; in two conversations with a Washington Department of Transportation auditor; in a conversation with a former CEO of the WSF; and in a complaint to the Washington Executive Ethics Board. See id. at 929. Marable’s superiors retaliated against him for having made these complaints.
We held that Marable’s complaints were protected by the First Amendment. We wrote:
At the outset, we think it worth noting that an employee’s charge of high level corruption in a government agency has all of the hallmarks that we normally associate with constitutionally protected speech. The matter challenged was a matter of intense public interest, had it become known, and criticisms of a government lie at or near the core of what the First Amendment aims to protect.
Id. at 932. We concluded that Marable’s speech, including his speech within the WSF hierarchy, was protected because it was not made pursuant to his official duties:
The Supreme Court has observed that the inquiry into whether employee speech is pursuant to employment duties is a practical one.... Functionally, ... it cannot be disputed that [Marable’s] job was to do the tasks of a Chief Engineer on his ferry, and such tasks did not include pointing to corrupt actions of higher level officials whom he purportedly thought were abusing the public trust and converting public funds to their own use by overpayment schemes.
Id.
The third case is Eng v. Cooley, 552 F.3d 1062 (9th Cir.2009), in which Eng, a Los Angeles County Deputy District Attorney, presented a report to his supervisors recommending that no criminal charges be brought against persons involved in the planning and construction of the local school district’s Belmont Learning Complex. 552 F.3d at 1064. Eng’s report conflicted with the report of Anthony Patchett, the leader of the Belmont Task Force, and with the political agenda of Eng’s boss, the recently-elected District Attorney, who had campaigned on a promise to reform the Belmont project. Id. The Task Force adopted Eng’s report. Id. At the meeting of the Task Force adopting his report, Eng argued that the financing for the Belmont project fell through because Patchett “had improperly leaked to the IRS that the School District had committed fraud in purchasing the Belmont property.” Id. Thereafter, Eng’s supervisors purportedly retaliated against him by falsely accusing him of sexual harassment and suspending him for improper use of an office computer, a trumped up charge. Id. at 1065-66. The Los Angeles Times later published an article on Eng’s case that included statements from Mark Geragos, Eng’s attorney. Id. at 1065.
In reviewing Eng’s First Amendment retaliation claim, we stated that “ ‘the question of the scope and content of a plaintiffs job responsibilities is a question *718of fact.’ ” Id. at 1071 (citation omitted). “In evaluating whether a plaintiff spoke as a private citizen, we must therefore assume the truth of the facts as alleged by the plaintiff with respect to employment responsibilities.” Id. We concluded that while Eng had a duty to submit his report, “Eng’s version of the facts plausibly indicates that he had no official duty to complain about [Patchett’s] leak to the IRS or to authorize Geragos to speak to the press.” Id. at 1073. We held that Eng properly stated a First Amendment retaliation claim. Id. at 1074.
The fourth case is Robinson v. York, 566 F.3d 817 (9th Cir.2009). Robinson, a sergeant in the Los Angeles County Office of Public Safety, testified in a class action lawsuit alleging discrimination by his employer and filed several misconduct reports pertaining to problematic behavior, some of which he observed while off duty. Id. at 820-21. The reports described, for example, officers who appeared to be consuming alcohol while on duty and instances of potential battery or excessive force. Id. Robinson alleged that his supervisors discouraged him from filing so many reports and indicated that filing fewer reports would improve his chances of being promoted to lieutenant. Id. at 821. Robinson thereafter performed very well on an examination for promotion to lieutenant but was not promoted. Id. He filed suit under the First Amendment. Id.
In determining whether Robinson’s reports were filed pursuant to his official duties, we stated that the “scope of Robinson’s duties is a question of fact. [W]hen there are genuine and material disputes as to the scope and content of the plaintiffs job responsibilities, the court must reserve judgment ... until after the fact finding process.” Id. at 823-24 (internal quotation marks and citations omitted; bracket and ellipses in original). We concluded that we must “assume the resolution of this dispute in the non-moving party’s favor.” Id. at 824 (citing Eng, 552 F.3d at 1067).
The lesson from the Supreme Court’s decision in Cebados, and from the four cases we have decided since then, is clear. If a public employee’s speech is made pursuant to his or her official duties, it is not protected under the First Amendment. However, if there is a genuine issue of material fact as to whether speech was made pursuant to a plaintiffs official duties, that issue may not be treated as a question of law to be resolved at summary judgment. Rather, it must be treated as a question of fact to be resolved in a fact-finding proceeding.
In Freitag, we were uncertain whether Freitag had a duty to report her complaints to the Director of the CDCR. 468 F.3d at 546. Rather than deciding the scope of Freitag’s duties as a question of law, we remanded for a factual determination. Id. It was only because there was no dispute that Freitag’s speech to a state senator and the Inspector General was not made pursuant to her official duties that we did not require a factual determination on that issue. Likewise, in Marable it was only because the speech by Marable to high level officials regarding corruption in his department indisputably fell outside of his duties as an engineer on a ferry that we did not require a factual determination on that issue. The plaintiff in Eng “plausibly” did not have a duty to complain about his co-worker’s leak to the IRS or to authorize his lawyer to speak to the press. 552 F.3d at 1073. That was enough to survive summary judgment and to require a factual determination at trial. Finally, because the duties of the plaintiff in Robinson were disputed, we permitted the First Amendment claim to proceed, stating that we “must reserve judgment ... until after the fact finding process.” 566 F.3d *719at 824 (emphasis added, internal quotation marks omitted, ellipsis in original).
Requiring factual determinations by a jury, or by a judge after a bench trial, when there is a genuine factual dispute about the scope of a plaintiffs official duties makes sense as a matter of institutional competence. In many instances, a judge can have only an imperfect understanding of the precise duties associated with a public sector job when all he or she knows is a job title. The duties of jobs with the same title often vary substantially depending on the agency and job location. The duties associated with a particular job may change over time. And the actual duties of an employee may vary substantially from the formal, publicly released job description. Thus, for a judge to conclude as a matter of law what is, and is not, included in a public employee’s official duties is a very hazardous enterprise.
III. Plaintiffs’ Protected Speech
Plaintiffs contend that they engaged in protected speech on four occasions: (1) Huppert’s speech during his investigation into corruption at the public works yard in 1997 and 1998; (2) Huppert’s speech during his cooperation with the FBI in its investigation into corruption in the police department sometime prior to 2001; (3) Huppert and Salgado’s speech during their-investigation into police corruption at the city-owned golf course beginning in late 2001; and (4) Huppert’s subpoenaed speech to the grand jury in 2004 during its investigation into corruption in the police department.
I agree with the majority that the district court’s summary judgment with respect to Huppert’s speech on the first occasion should be affirmed. In my view, Huppert has provided insufficient evidence that his speech on that occasion was not uttered pursuant to his official duties to survive summary judgment.
However, I disagree with the majority with respect to Huppert’s speech on the second, third, and fourth occasions, and with respect to Salgado’s speech on the third occasion. In my view, there is a genuine issue of material fact whether Plaintiffs’ speech on the second and third occasions was uttered pursuant to their official duties and, therefore, whether it was protected under the First Amendment. Further, in my view, Huppert’s speech on the fourth occasion was protected, as a matter of law, under the First Amendment:
A. Huppert’s Speech During the FBI Investigation into Corruption in the Pittsburg Police Department
Huppert states in his declaration that sometime prior to 2001 he began cooperating with the FBI in its investigation of corruption in the Pittsburg Police Department (“PPD”). Huppert specifically states that his cooperation was “outside [his] duties as a member of the PPD.” Huppert states that in 2001, when Police Chief Baker learned of his cooperation with the FBI, he retaliated by transferring Huppert to the Code Enforcement unit of the PPD, otherwise known as the Penal Colony.
In my view, Huppert has created a genuine issue of material fact as to the scope of his official duties. Huppert has specifically, and not implausibly, stated that his speech during his cooperation with the FBI’s investigation into corruption in the PPD was not part of his official duties as a member of the PPD. I therefore conclude that the scope of Huppert’s official duties, and the motivation for Baker’s assignment of Huppert to the Penal Colony, are questions of fact to be resolved by a jury, not an issue- of law to be resolved on summary judgment.
*720B. Huppert and Salgado’s Speech During the Investigation into Police Corruption at the City-Owned Golf Course
Huppert and Salgado state in their declarations that the City Manager asked them to conduct the investigation into police corruption at the city-owned golf course. Commander Hendricks states in his declaration that Police Chief Baker told Huppert and Salgado to stop their investigation after only one day. Hendricks states that Baker explicitly ordered Huppert and Salgado not to write a report. Huppert states that, in direct disobedience to Baker’s order, he and Salgado continued their investigation and that he wrote a report of their “initial findings.” Huppert and Salgado state that they were retaliated against for this speech.
Huppert and Salgado contend that because they continued their investigation, and because Huppert wrote the report in direct contravention of orders from Police Chief Baker, the speech contained in the report was not made pursuant to their official duties. I recognize that Huppert and Salgado continued their investigation with the knowledge and encouragement of Commander Hendricks. But any encouragement from Hendricks conflicted with the direct order of Police Chief Baker. In my view, a direct order from the Chief of Police is a more authoritative source for determining the scope of a police officer’s official duties than the encouragement of a lower-ranking officer in the department to disobey that order. At most, Hendricks’ encouragement of Huppert and Salgado creates a factual question as to the scope of their official duties. This is precisely the type of question that we saved for fact-finding proceedings in Freitag, Eng, and Robinson. Huppert and Salgado’s version of the facts “plausibly indicates that [they] had no official duty” to prepare the report on their public golf course corruption investigation. Eng, 552 F.3d at 1073. Consequently, we must “assume the resolution of this dispute in the non-moving parties’] favor.” Robinson, 566 F.3d at 824.
Police Chief Baker, who is a defendant in this suit, may be able to provide evidence that would help a jury determine the scope of Huppert and Salgado’s official duties. For example, Baker could testify that in directing them not to prepare the report, he was defining the contours of their official duties. If this is so, Huppert was not acting pursuant to his official duties when he wrote the report, and his (and Salgado’s) speech is protected under the First Amendment. On the other hand, Baker could testify that writing the report was part of their official duties, and that Baker was directing them not to perform their duty. If this is so, Baker may have been behaving improperly by attempting to cover up corruption in his police force, but Huppert and Salgado were acting pursuant to their official duties in preparing the report, and their speech was not protected.
C. Subpoenaed Testimony Before the Grand Jury Investigating Corruption in the Pittsburg Police Department
Huppert was subpoenaed to appear before a civil grand jury investigating corruption in the Pittsburg Police Department. He appeared before the grand jury in compliance with the subpoena. We do not know his actual testimony, but we know that he testified concerning corruption in the PPD. Huppert states that after he testified he was subjected to various retaliatory actions.
The majority relies on Christal v. Police Commission of San Francisco, 33 Cal.App.2d 564, 92 P.2d 416, 419 (1939), to conclude that police officers in California *721have an official duty to testify pursuant to a subpoena before grand juries investigating corruption in their department. Christal states, “When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors and to testify freely concerning such facts when called upon to do so before any duly constituted court or grand jury.” I do not regard Christal as relevant to the question before us. In my view, if a public employee is subpoenaed to testify before a grand jury, he or she has a duty as a citizen that is independent of any duty he or she might also have as an employee. In testifying pursuant to a subpoena, the employee is therefore not performing an official duty within the meaning of Ceballos.
The majority’s conclusion that Huppert’s subpoenaed speech before the grand jury is not protected under the First Amendment conflicts with two recent decisions by our sister circuits. In Morales v. Jones, 494 F.3d 590 (7th Cir.2007), Milwaukee police officer Morales testified in a deposition pursuant to a subpoena. The substance of his testimony concerned evidence that the Chief and Deputy Chief of Police had harbored a fugitive, the brother of the Deputy Chief, and that the Chief had retaliated against another officer in another matter. Morales claimed in a § 1983 suit that the Chief of Police and the Deputy Chief retaliated against him for his deposition testimony. The Seventh Circuit held that Morales’ speech during the deposition was protected under the First Amendment. The court wrote,
Being deposed in a civil suit pursuant to a subpoena was unquestionably not one of Morales’ job duties because it was not part of what he was employed to do. Nonetheless, Morales testified about speech he made pursuant to his official duties and we must determine whether that fact renders his deposition unprotected. We hold that it does not....
Id. at 598.
In Reilly v. Atlantic City, 532 F.3d 216, 220 (3d Cir.2008), Atlantic City police officer Reilly testified in a criminal trial against a fellow officer accused of corruption. A high-ranking Atlantic City police officer who was a friend of the allegedly corrupt officer had been a suspect but had not been charged. Reilly claimed in a § 1983 suit that the Chief of Police and the high-ranking officer retaliated against him for his trial testimony. The Third Circuit held that Reilly’s testimony was protected under the First Amendment. The court wrote:
[T]he act of offering truthful testimony is the responsibility of every citizen, and the First Amendment protection associated with fulfilling that duty of citizenship is not vitiated by one’s status as a public employee. That an employee’s official responsibilities provided the initial impetus to appear in court is immaterial to his/her independent obligation as a citizen to testify truthfully.
Id. at 231.
A recent district court decision in our own circuit is even more directly on point. In Evans v. Housing Authority of Benicia, 2008 WL 4177729 (E.D.Cal. Sept.8, 2008), Evans was an accountant for the Benicia Housing Authority (“BHA”). Evans observed that Peterson, one of his supervisors, was working “reduced hours” and was not collecting certain past due rents. Evans reported his observations to the Chairperson of the BHA. He later testified about his observations before a civil grand jury investigating the BHA.
The court held that Evans’ testimony before the grand jury was protected, both as to the hours worked by Peterson and to her failure to collect rents. The court wrote:
*722Testifying before the Grand Jury was not in any way part of Evans’ official job duties. It was clearly not within the scope of Evans’ official job duties to testify before the Grand Jury about Peterson’s alleged failure to collect past due rents.... Nor was it within the scope of Evans’s duties to testify before the Grand Jury about Peterson’s reduced work hours. Rather, it was Evans’ duty as a citizen to expose such official malfeasance to broader scrutiny.
Id. But see Deprado v. City of Miami, 446 F.Supp.2d 1344, 1346 (S.D.Fla.2006) (holding that “[i]n accordance with the [Miami] Police Department’s regulations, and the plaintiffs obligations as a State-certified law enforcement officer,” grand jury testimony by a Miami police officer was not protected speech under the First Amendment).
Morales, Reilly, and Evans hold that where there is an independent legal duty to speak (in our case, to testify before the grand jury pursuant to a subpoena), the employee has First Amendment protection for truthful speech uttered in performance of that independent legal duty. The fact that the employer may require its employees to obey a law that exists independent of the employment relationship does not allow the employer to retaliate against an employee for obeying that law.
This holding comports with sound policy. There are strong reasons to avoid holding that police officers have an official duty, within the meaning of Ceballos, to testify before a grand jury pursuant to a subpoena about corruption among their fellow officers. Such a holding would result in a Catch 22. If a police officer were subpoenaed to testify, he or she would have two choices. One choice would be to testify before the grand jury. In that event, the officer could lawfully be fired in retaliation for his or her testimony. The other choice would be to refuse to testify. In that event, the officer would face contempt (and possibly other adverse consequences) for failing to comply with a subpoena.
The subject of Huppert’s testimony before the grand jury was, in the words of our decision in Marable, “high level corruption in a government agency,” which “has all the hallmarks that we normally associate with constitutionally protected speech.” 511 F.3d at 932. When he appeared before the grand jury, Huppert acted “as a citizen,” exercising a right “guaranteed to any citizen in a democratic society regardless of his status as a public employee.” Freitag, 468 F.3d at 545. He also appeared pursuant to his duty as a citizen, independent from his duty as a public employee, to comply with the subpoena. That Huppert’s speech concerned “the subject matter of [his] employment ... is nondispositive.” Ceballos, 547 U.S. at 421, 126 S.Ct. 1951. Sound policy counsels us not to conclude that his speech was made pursuant to his official duties. So do Morales and Reilly, the only opinions by courts of appeals on this issue. I think we are fully justified in following these cases and holding that when an officer testifies before a grand jury pursuant to a subpoena concerning corruption of his or her fellow officers, the officer is not performing an official duty within the meaning of Ceballos.
Conclusion
The majority holds that Huppert’s speech during the FBI investigation into corruption in the Pittsburg Police Department, and Huppert and Salgado’s speech during the investigation into police corruption at the city-owned golf course, were not protected under the First Amendment. In so holding, the majority fails to follow our binding circuit precedent in four cases decided after the Supreme Court’s decision *723in Ceballos — Freitag, Marable, Eng, and Robinson.
The majority also holds that Huppert’s subpoenaed speech to the grand jury investigating corruption in the Pittsburg Police Department was not protected by the First Amendment. In so holding, the majority creates a circuit split with the Seventh Circuit’s decision in Morales and the Third Circuit’s decision in Reilly.
I respectfully dissent.