Moonin v. Tice, 15-16571

• Citation: 868 F.3d 853
• Decision Date: 22 August 2017
• Docket Number: No. 15-16571,15-16571
• Parties: Matt MOONIN; Donn Yarnall ; Erik Lee, Plaintiffs-Appellees, v. Kevin TICE, Defendant-Appellant, and Luis Zapata; State of Nevada Department of Public Safety, Highway Patrol Division (NHP), Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

868 F.3d 853

Matt MOONIN; Donn Yarnall ; Erik Lee, Plaintiffs-Appellees,

v.Kevin TICE, Defendant-Appellant,andLuis Zapata; State of Nevada Department of Public Safety, Highway Patrol Division (NHP), Defendants.

No. 15-16571

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 13, 2016 San Francisco, California

Filed August 22, 2017

Joseph F. Tartakovsky (argued), Deputy Solicitor General; Brandon R. Price, Deputy Attorney General; Cameron P. Vandenberg, Supervising Senior Deputy Attorney General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Carson City, Nevada, for Defendant-Appellant.

Kenneth J. McKenna (argued), Reno, Nevada, for Plaintiffs-Appellees.

Before: Marsha S. Berzon and Mary H. Murguia, Circuit Judges, and Frederic Block,^* District Judge.

OPINION

BERZON, Circuit Judge:

We address a question arising out of a dispute regarding the management of the Nevada Highway Patrol ("NHP") canine drug interdiction program ("K9 program")—whether a policy announced in an email sent by defendant-appellant Major Kevin Tice to NHP K9 program officers, including plaintiff-appellee Matt Moonin, violated the First Amendment by imposing an impermissible "prior restraint" on government employee speech.¹ We hold that the sweeping policy imposed by Tice's email violated the troopers' clearly established First Amendment rights. Accordingly, we affirm the district court's denial of qualified immunity.

I.

Moonin had been a trooper in the NHP K9 program. He alleges in his complaint that certain NHP officers sought to undermine the effectiveness of the K9 program, and that the policy announced by Tice was designed to prevent police officers involved in the program from making the problems in the K9 program known to the public.² The operative amended complaint asserted ten claims for relief pursuant to 42 U.S.C. §§ 1983 and 1985, including the First Amendment "prior restraint" claim at issue here, and named as defendants several officers and state and municipal entities.

The question before us turns on the constitutionality under the First Amendment of a policy imposed in a February 24, 2011 email sent by Tice to southern command K9 officers, including Moonin. The email at issue, sent shortly after the K9 program was reorganized, reads:

Good afternoon,As we reengage in K9 and interdiction program oversight at the regional command level, it is important to ensure appropriate flow of communication. It is critical that we identify and resolve issues and inconsistencies that have developed since the current program's inception.

Effective immediately, except for allied [law enforcement] agencies and [High Intensity Drug Trafficking Area] representatives, there will be NO direct contact between K9 handlers, or line employees[,] with ANY non-departmental and non-law enforcement entity or persons for the purpose of discussing the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect logistics therein. All communication with ANY non-departmental and non-law enforcement entity or persons regarding the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect logistics relating to these programs WILL be expressly forwarded for approval to your chain-of-command. Communication will be accomplished by the appropriate manager/commander if deemed appropriate. Any violation of this edict will be considered insubordination and will be dealt with appropriately.

Lieutenants Haycox, Smith and Acting Lieutenant Lee: Please document your discussion and understanding of this direction with Troopers Matt Moonin [and other named employees] immediately. In addition, please have necessary discussions with appropriate Sergeants.

Moonin contends that no follow-up meeting occurred; Tice disputes that. The parties agree that at the time Tice sent the email, the K9 officers, including Moonin, were subject to pre-existing NHP confidentiality policies not contested here.

Tice's email was sparked by concerns arising from, in the words of one of Tice's superiors, "questions coming from the legislature ... [and from] governor's offices and from different sources ... [with] incomplete understandings of what's going on." Tice later explained that the policy's intent "was to forbid direct contact with ‘Friends for K9’ representatives by the K9 and interdiction employees." Tice described Friends for K9 as a private organization that was "intentionally meddling into how the unit was run." According to Tice, "[s]evering contact with members of Friends for K9 was appropriate to eliminate their inappropriate influence and access."

The plaintiffs' First Amendment "prior restraint" claim concerning this email survived the district court's rulings on defendants' motions to dismiss. The plaintiffs moved for partial summary judgment on the "prior restraint" issue; the defendants shortly thereafter cross-moved for summary judgment on all remaining claims.

The district court granted in part and denied in part each party's summary judgment motion. After concluding that Moonin had standing to bring the First Amendment claim, the district court determined that "Tice's email was not a lawful prior restraint" and that Tice was not entitled to qualified immunity because "a reasonable supervisor would have known that such a mandate was an unconstitutional intrusion into Plaintiffs' established First Amendment rights." Finding no disputed issue of material fact that would preclude summary judgment with respect to this issue, the court granted Moonin's motion for partial summary judgment on the First Amendment claim and denied Tice's cross-motion in relevant part. Tice appealed.

Although some issues remain to be determined by the district court,³ we have jurisdiction to review a district court's denial of qualified immunity to a government official. See Thomas v. Dillard , 818 F.3d 864, 874 (9th Cir. 2016). We review de novo whether, viewing the facts in the light most favorable to Moonin, Tice is entitled to qualified immunity as a matter of law. Id. We also have jurisdiction over the portion of the district court's order granting Moonin partial summary judgment on the same claim, because that ruling rested on the same factual and legal issues as the district court's denial of qualified immunity to Tice and "finally and conclusively determined all liability issues against" Tice. See Mueller v. Auker , 576 F.3d 979, 989–90 (9th Cir. 2009). In reviewing the district court's order granting partial summary judgment to Moonin, we view the facts in the light most favorable to Tice. See id. at 991.⁴

II.

Resolution of this appeal turns, ultimately, on whether Tice is entitled to qualified immunity. We must grant Tice qualified immunity unless Moonin can show that Tice "violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." City of San Francisco v. Sheehan , ––– U.S. ––––, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015) (citation omitted). We first consider whether Tice's email imposed an unconstitutional "prior restraint" on the K9 troopers' speech. We then address whether any rights Tice violated were clearly established at the time of his alleged misconduct. See Pearson v. Callahan , 555 U.S. 223, 232, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

A. Constitutional Violation

"[C]itizens do not surrender their First Amendment rights by accepting public employment." Lane v. Franks , ––– U.S. ––––, 134 S.Ct. 2369, 2374, 189 L.Ed.2d 312 (2014). Moreover, "[t]here is considerable value ... in encouraging, rather than inhibiting, speech by public employees," because "government employees are often in the best position to know what ails the agencies for which they work." Id. at 2377 (brackets, internal quotation marks, and citation omitted). At the same time, "[g]overnment employers, like private employers, need a significant degree of control over their employees' words and actions." Id. (quoting Garcetti v. Ceballos , 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ). Accordingly, government employees may be subject to some restraints on their speech "that would be unconstitutional if applied to the general public." City of San Diego v. Roe , 543 U.S. 77, 80, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam).

A two-step analysis derived from the Supreme Court's decision in Pickering v. Board of Education , 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), guides our analysis of restrictions on public employee speech. We first ask whether the restriction at issue impacts a government employee's speech "as a citizen on a matter of public concern." See Garcetti , 547 U.S. at 418, 126 S.Ct. 1951. This initial inquiry removes from First Amendment scrutiny policies affecting only speech uttered pursuant to public employees' official duties. See id. at 421, 126 S.Ct. 1951. If the challenged speech restriction at issue reaches expression communicated in a government employee's capacity "as a citizen" and includes discussion of "matter[s] of public concern," "[t]he question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public," as by disciplining or discharging him on the basis of speech. Id. at 418, 126 S.Ct. 1951. "Under some factual circumstances, ... the Pickering balancing test can favor protected speech even where the speech violates the employer's written policy requiring speech to occur through specified channels." Robinson v. York , 566 F.3d 817, 825 (9th Cir. 2009).

Although the Pickering framework is most often applied in the retaliation context, a similar analysis is used when assessing prospective restrictions on government employee speech. See United States v. Nat'l Treasury Emps. Union (NTEU) , 513 U.S. 454, 465–68, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) ; Gibson v. Office of Attorney Gen. , 561 F.3d 920, 926–27 (9th Cir. 2009). Where a ...