Government Liability Update

Claim for Failure to Provide Adequate Warning Barred by Design Immunity Where Warnings Addressed by Plans

In Stufkosky v. California Department of Transportation, ordered published November 28, 2023, the Second District Court of Appeal, Division 6 affirmed summary judgment in the state's favor based on design immunity.  On a state highway, a vehicle struck a deer.  The impact sent the deer into the opposing lane, where it struck another vehicle.  That vehicle veered across the centerline and collided with the vehicle driven by the plaintiffs' decedent.  At the roadway portion where the accident occurred, a four-foot-wide painted median with rumble strips separates traffic.  Six deer warning signs appear along the 15-mile segment of the roadway where the accident occurred.  The closest one facing westbound traffic is approximately a mile from the accident site; the closest one facing westbound traffic two miles away, a position it was moved to after a request from the Department of Fish and Game.  The plaintiffs sued the state for maintaining a dangerous condition of public property, alleging the roadway's design, lack of deer crossing signs, and high speed limit.  The trial court found design immunity under Government Code section 830.6 was a complete defense to the plaintiffs' claims.

The appellate court agreed.  The state established the elements of design immunity.  The plaintiffs' allegations allege the required causal connection, by alleging that the state designed the roadway without certain safety features they contend would have made it safer.  The state satisfied the burden of establishing discretionary approval of the plan by submitting detailed plans for the area of the roadway where the accident occurred, and by a traffic engineer attesting to the applicable design standards and how the state addressed the dangers posed by deer entering traffic and vehicles crossing the median.  The entity need not submit evidence that it considered a particular design feature but decided not to include it.  Limiting design immunity to those features expressly considered would be tantamount to requiring public entities to address all conceivable design features during the approval process. They need not do so.  The state produced substantial evidence that the design was reasonable.  The plaintiffs did not dispute the plans  were properly approved and complied with prevailing design standards. Nor did they dispute the state placed deer warning signs east and west of the accident site. These facts alone are sufficient to show the approved design plans were reasonable. The state also submitted a traffic engineer's declaration that the accident rate for the area was below the statewide average for similar locations; that a state system for determining whether median barriers would improve safety did not identify the system, due to insufficient centerline collisions;  that no additional deer warning signs were warranted; that the speed limit accorded with the vehicle code; and that the state reasonably approved all relevant plans before construction and that the design was reasonable.  The plaintiff's expert's disagreement did not eliminate substantial evidence of reasonableness.  The appellate court rejected the plaintiff's argument that the trial court failed to address their separate and independent allegation that the state created a dangerous condition by failing to warn adequately of deer crossings, and that under Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639 design immunity did not bar this claim.  Tansavatdi declined to decide the issue presented here:  whether design immunity affects a failure to warn claim when a public entity produces evidence that it considered whether to provide a warning.  The state produced evidence that its design plans specified the quantity and placement of deer crossing signs.  The plaintiffs disputed only that the state warned motorists of this danger adequately.  The trial court resolved that issue in the state's favor.  Substantial evidence supports that finding.

Public Employee's Dangerous Condition Suit against Employer for Injury on Employer's Property Barred by Exclusive Remedy Rule

In Jones v. Regents of the University of California, ordered published November 28, 2023, the Fourth District Court of Appeal, Division 3 affirmed summary judgment for the defendant regents.  An employee of the regents who worked on the UC Irvine campus was riding home from her work on a bicycle.  Ten seconds into her ride, while still on campus, she swerved and attempted to brake to avoid a trench, and fell off her bike, sustaining injuries.  She sued the Regents for maintaining a dangerous condition of public property.  The trial court granted the regents summary judgment, ruling that the plaintiff's exclusive remedy was workers' compensation.

The appellate court affirmed.  The premises line rule provides that after the worker enters the employer's premises, injury is generally presumed subject to workers' compensation until the employee leaves the premises.  Because the plaintiff's injuries occurred on the employer's campus, just after she left her workstation, her injuries occurred in the course and scope of her employment as a matter of law.  The facts that she was leaving work, that she was not using an employer-designated vehicle or route, and that the campus is large do not raise triable issues.

Officers Were Entitled to Qualified Immunity for Using Deadly Force on Unarmed Domestic Violence Suspect Who Charged Them in Confined Space

In Waid v. County of Lyon, published November 21, 2023, a divided panel of the  9th Circuit Court of Appeals affirmed summary judgment in favor of two police officers.  The defendant officers responded to a 911 call seeking help with a domestic violence incident.  When one of the officers knocked on the door of the caller’s home, the caller’s minor children came out and told the officer their parents were fighting and their mother needed an ambulance.  One child said there were no weapons in the house except a BB gun.  The officers entered, the lead officer announcing himself and the officer behind him drawing his weapon and pointing it forward as he entered.  As the officers entered the kitchen, the decedent, out of sight, swore at the officers.  The officers saw the decedent at the end of a hallway. Both pointed their weapons at the decedent and told him to get on the ground.  The decedent ignored the commands and ran down the short hallway toward the officers.  The officers shot him five times.  The plaintiffs sued the officers for use of excessive force under the 4th Amendmentand interfering with familial relationships in violation of the 14th Amendment.  The district court granted the officers’ motion for summary judgment based on qualified immunity.

The panel majority affirmed summary judgment on both claims.  The majority held that the facts, even with all disputes resolved in the plaintiffs’ favor, did not show an obvious violation of constitutional rights.  Fourth Amendment violations must be beyond debate to be considered obvious.  Obvious violations are thus found only in exceedingly rare circumstances with extreme facts.  Here, the officers did not obviously violate the decedent’s right to be free of excessive force.  It was not obvious that the use of force was objectively unreasonable in light of the facts and circumstance confronting the officers.  The decedent used aggressive language, ignored an order from the officers, and rushed towards them in a small and confined space.  The officers were responding to an active domestic violence situation, and needed to make split-second decisions.  It is not obvious the officers were constitutionally precluded from firing.  Because there was not an obvious constitutional violation, the plaintiffs had to show controlling authorities or a persuasive consensus that would have put every reasonable officer on notice that the officers’ conduct violated the 4th Amendment.  They failed to do so.  A case holding that shooting a suspect after he had fallen to the ground from gunshots, and stomping his head, violated the 4th Amendment did not apply, because the five shots were continuous, the suspect began falling during the shots, he did not fall until after the shooting stopped, and the officers did not shoot him after he fell.  Other cases where suspects did not advance toward officers or present a danger to the officers or others did not apply where the suspect was advancing, and would have presented a threat to the 911 caller if the officers retreated.  The officers were entitled to summary judgment on the 14th Amendment claim because they did not have time to deliberate, and there was no evidence they acted with a purpose to harm unrelated to the legitimate law-enforcement objective of protecting themselves.

A dissenting judge would have denied qualified immunity as to the use of force claim.  Viewing the facts in the light most favorable to the plaintiffs, the decedent was clearly illuminated, unarmed, shirtless, with both hands visible; and there was nothing to be seen in his hands or waistband.  Further, the decedent was moving away form his wife’s presumed location, and was not actively engaging in a domestic dispute.  The officers were larger than the suspect, and had less-lethal weapons.  They did not warn that they would use deadly force.https://cdn.ca9.uscourts.gov/datastore/opinions/2023/11/21/22-15382.pdf

Filing Declaratory Relief Action Regarding Right to Compensation under Contract, without First Presenting Claim, Did Not Bar Contractor from Later Presenting Claims and Adding Damages Causes of Action

In Stronghold Engineering Incorporated v. City of Monterey, published November 3, 2023, the Sixth District Court of Appeal reversed a summary judgment granted to the defendant city.  The city and the plaintiff entered into a contract to renovate city property.  The parties signed a change order extending the contract term.  As part of the change order, the plaintiff agreed to waiver certain items of compensation for changes.  A dispute arose between the city and the plaintiff about interpretation of this language.  Without first presenting a claim for damages to the city, the plaintiff filed suit against the city with a single cause of action requesting declaratory relief.  The plaintiff requested a judicial determination that according to the change order the “City must compensate Stronghold for due compensable or excusable delays in time and money for any changes made by or caused by the City to the Project that negatively impact the critical path.”  The complaint did not pray for monetary compensation.  It alleged that because it did not seek damages, no claim was necessary.  The city demurred on the ground that no claim had been presented.  The trial court sustained the demurrer with leave to amend.  Multiple amendments followed.  While the suit was pending, the plaintiff presented three claims for damages to the city, arising out of disputes concerning change orders.  After the claims were rejected, the plaintiff filed a Fourth Amended Complaint containing causes of action for breach of contract, seeking damages, along with a cause of action for declaratory relief.  The trial court granted the city's motion for summary judgment.  The court granted summary judgment, reasoning that in the original complaint the declaratory relief action was, in essence, a claim for money or damages; and that the failure to present a claim before the lawsuit was filed barred the entire action.

The appellate court disagreed.  Although the original complaint mentioned "compensation," it sought only declaratory relief, not money or damages.  The original complaint did not seek or attempt to show entitlement to damages of any kind.  Toobtain a money judgment the plaintiff would need to further establish—either by change order or through a breach of contract action—that a particular delay was compensable under the contract and the first change order, as interpreted in the declaratory judgment.  Any future claim for money or damages based on the judicial interpretation the plaintiff sought in the declaratory relief action would require an advance claim for damages to the city.  That is what happened.  But those claims were not necessary for a request to the court to define the parties' rights and duties under a written agreement, versus a judgment that applies that interpretation to a specific factual scenario.  If the latter would potentially create an award of damages, it would require a claim.  Because the initial complaint did not require a claim, the court erred in sustaining the demurrer to it and then granting summary judgment.

Public Park Was Not a Dangerous Condition of Public Property Due to Lack of Surveillance Cameras

In Summerfield v. City of Inglewood, published October 25, 2023, the Second District Court of Appeal, Division 8 affirmed dismissal of a wrongful death suit after demurrer was sustained without leave to amend.  In January 2021, the plaintiffs' decedent drove to a park in the defendant city to play basketball.  While he was in his vehicle, he was shot and killed.  The plaintiffs asserted causes of action against the city, which owned and operated the park, for dangerous condition of public property and negligence.  The operative First Amended Complaint alleged that the park was supposed to be closed to the public due to COVID-19, but a city employee opened the park gym to the public in violation of the city's COVID protocol, which was a substantial factor in drawing the decedent and the perpetrator to the park.  The FAC alleged there were no security cameras in the parking lot, and a lack of attendants, control measures, and security.  The FAC alleged there had been "multiple shootings" at the park before the incident, but described only two incidents, in 1997 and 2012.  The FAC alleged that considering the multiple shootings, the lack of cameras presented attractive opportunities to criminals.  It asserted the city was liable under Government Code sections 815.6 (violation of mandatory duty).  The trial court ruled that the complaint, as amended, failed to identify a dangerous condition of public property.

The appellate court agreed.  Case law establishes that the presences or absence of security guards is not a physical characteristic of public property and thus not actionable as a dangerous condition of public property.  Further, public entities are immune under Government Code section 845 for alleged failure to provide security services or police presence.  The plaintiffs therefore cannot support their claim that failure to provide security at the parking lot was a dangerous condition.  The alleged failure to take adequate precautions from employees opening the gym to the public is also not a dangerous condition or defective in a way that foreseeably endangers those using the property.  Dangerous condition claims must be specifically pleaded, and must specify in what manner the condition constituted a dangerous condition.  The FAC failed to allege sufficient facts that the city's failure to provide adequate precautions was a dangerous condition of public property.  The allegation that the city failed to provide security cameras despite ongoing criminal activity failed because the FAC identified only two crimes over a 23-year span.  Further, third party criminal activity does not constitute a dangerous condition of public property unless the property itself is in a dangerous condition and that condition increases or intensifies the risk of injury to the public.  A parking lot is not dangerous because it lacks surveillance cameras; it needs surveillance cameras if it is dangerous.  The FAC failed to plead sufficient facts to show a causal connection:  that the absence of security cameras created a substantial risk of being shot.  The theory that the city failed to provide adequate warning about the dangerous condition failed because the FAC failed to allege a dangerous condition.  Further, a public entity has no duty to warn against criminal conduct.  Because a city cannot be held liable for nonstatutory negligence, the trial court properly sustained the demurrer against the negligence cause of action.  The plaintiffs failed to adequately show they could amend the complaint to state a claim.

One justice wrote a concurring opinion asserting that to establish a novel theory of tort liability, a plaintiff must establish the benefit would outweigh the burden.  The plaintiffs cannot establish that imposing a duty on public entities to place surveillance cameras and other security wherever crime has occurred would outweigh whatever benefit might result. 

Alleged Confirmation of Cancellation of Business License in Closed Session Did Not Arise Out of Protected Activity for Anti-SLAPP Purposes

In Mary's Kitchen v. City of Orange, published October 25, 2023, the Fourth District Court of Appeal, Division 3 affirmed a trial court decision denying the defendant city's special motion to strike under anti-SLAPP law.  The plaintiff provides homeless services in the defendant city.  The city manager terminated the plaintiff's business license, citing safety concerns.  At a city council meeting, the agenda for which did not mention the plaintiff, the city council held a closed session meeting to discuss potential unspecified litigation.  After the closed session, during the regular session portion of the meeting, the city attorney reported that the city council had unanimously confirmed the actions of the city manager and staff in terminating the license. The minutes of the council meeting stated that the termination was "unanimously confirmed." Representatives for the plaintiff delivered a letter to the city demanding the city cure and correct alleged Brown Act violations that prevented the plaintiff and public from being present during and participating in the cancellation of the license.  The city took the position that it had not taken any action during the closed session.  The plaintiff filed a complaint and petition for writ of mandate, alleging Brown Act violations and seeking declaratory and injunctive relief.  The city filed an anti-SLAPP motion, with a declaration from the city attorney, stating that, in the face of the threat of litigation regarding the city manager's termination of the license, the city council did not take any action; there was no vote, no ratification, no decision to ratify the termination or to terminate the license, and did not make any decision to overturn the termination.  The city attorney declared that the city council unanimously confirmed the city manager's and staff's actions by doing nothing to reverse the city manager's decision.  The trial court concluded that the complaint did not arise from protected activity as defined in Code of Civil Procedure section 425.16.

The appellate court agreed.  The issue is whether the complaint arises from an unprotected action by the city, or protected speech by the city.  The appellate court interpreted the complaint as arising from unprotected action--the unanimous confirmation--and the fact that the agenda had not given proper notice of that action.  It was not based on the conversation between the city council and the city attorney in anticipation of litigation.  The plaintiff's complaint reasonably interpreted the words "unanimously confirmed" in the meeting minutes as the city council taking action, unanimously ratifying the city manager's decision.  That the city attorney provided a contrary declaration is not dispositive on the anti-SLAPP motion; the court accepts as true the evidence favorable to the plaintiff and evaluate the defendant's evidence only to determine if it has defeated the plaintiff's evidence as a matter of law.  A trier of fact could conclude the city attorney's testimony is self-serving and contradicts the meeting minutes.  Assuming that the action of ratifying the termination of the license occurred, it was not conduct in furtherance of free speech; it is ordinary business.  The complaint therefore does not arise from protected activity.

California Public Records Act Does Not Permit Declaratory Relief as to Moot Record Requests, Nor Does It Require Agencies to Retain Records

In City of Gilroy v. Superior Court (Law Foundation of Silicon Valley), published October 23, 2023, the Sixth District Court of Appeal issued writs directing the trial court to vacate its order in a California Public Records Act proceeding.  In 2018, the real party in interest Foundation requested public records from the city concerning homeless encampment sweeps.  The city's response stated in part that the city's law enforcement records concerning the sweep were exempt from disclosure under the CPRA.  It did not provide bodycam footage from officers who participated in sweeps in response to the Foundation's 2018 requests, and did not search for such footage, because the city attorney determined the footage was exempt.  In 2019, when the Foundation discovered that all homeless encampment sweeps are videotaped, the Foundation submitted a request for all video and audio recordings made during sweeps from 2016 to 2019.  It later agreed to limit the request to January 2019 to the present.  The city denied production of the bodycam footage on the ground that it was exempt.  The Foundation stated an intent to petition the court to compel production of the footage.  In response, the city voluntarily placed a litigation hold on the footage to preserve it past the city's one-year retention period.  The city then released bodycam footage from encampment sweeps that did not relate to citations or arrests.  It withheld from disclosure 10 minutes of bodycam footage in which officers issued citations.  The city stated that no other bodycam footage from 2016 to 2019 was in its possession.  The Foundation petitioned the trial court.  The trial court viewed the 10 minutes of withheld footage in camera, and determined it was properly withheld as exempt.  In response to an amended petition, the trial court denied the petition to compel production of footage, and granted declaratory relief, declaring that the city violated the CPRA by conducting an inadequate search in response to the 2018 CPRA requests; that the city had a duty to review the video to determine whether footage was exempt and could be produced, before issuing a blanket exemption, and explain why any withheld records were exempt; and that the city's CPRA response was untimely.  The trial court denied the Foundation's request for a declaration that the city had an obligation to preserve records, and for an injunction preventing the city from destroying any footage for three years after receiving a CPRA request.  Both sides petitioned the appellate court for writ relief.

The appellate court ruled the trial court erred by issuing the declaratory relief.  Once the trial court ruled that the city had provided all nonexempt footage in its possession and had properly withheld exempt records, the Foundation's claims under the CPRA, including its claims regarding the city's responses to past CPRA requests, was moot.  While the trial court had power under the CPRA to issue declaratory relief regarding an agency's obligation to disclose records, neither the CPRA nor the general declaratory relief statute, Code of Civil Procedure 1060, provides for declaratory relief as to moot CPRA claims, or responses to past CPRA claims.  Declaratory relief operates only prospectively and not for redress of past wrongs.  The appellate court rejected the Foundation's petition for a declaration that the city violated the CPRA by failing to preserve past recordings and for an injunction that the city retain recordings for three years.  The CPRA is not a records retention statute.  Other statutes impose particular retention periods for bodycam recordings and other recordings, and the city complied with those statutes.

CPRA Discovery Cannot Demand Production of Public Records Sought or Information about Underlying Events Not Available Through Public Records Act

In County of San Benito v. Superior Court (Western Resources Legal Center), published October 10, 2023, the Sixth District Court of Appeal issued a writ partially overturning a trial court discovery order.  Real Party in Interest Western Resources requested records about a proposed development that was the subject of a pending land use application.  The county provided records it deemed responsive to the request.  It then made a request concerning alleged misconduct relating to the project, including all records concerning or discussing a formal investigation into the alleged misconduct.  The petitioner county stated it would provide nonexempt records responsive to the request on a rolling basis, but the parties disputed the search terms that would be used for the project, and as of the time Western filed its action to compel compliance with the California Public Records Act, the county allegedly had not provided it with records responsive to the request.  Western propounded interrogatories and requests for production.  Among the discovery requests were a request for production of all documents responsive to the public records request, and special interrogatories asking the county to explain, in detail, what action was taken to investigate the alleged misconduct, and if no action was taken, to explain why.  After the county responded, Western moved to compel further responses.  The trial court ordered further responses, including an order for the county to produce all non-exempt records responses to the request for production, a privilege log, and a response to the interrogatories about investigation of misconduct.  The county challenged this order.

The appellate court issued a writ of mandate directing the trial court to set aside the order and issue a new order that did not compel production of the records responsive to the CPRA request or a response to the interrogatory asking why the county did not pursue an investigation of misconduct.  Although discovery is permitted in proceedings to compel compliance with the CPRA, the discovery is circumscribed by the requirement that it be relevant to the narrow issue of whether the public agency has an obligation to disclose the records that the petitioner has requested.  Discovery inquiring into whether a reasonable search was conducted for responsive documents, such as questions about the agency's retention policy, may be reasonable calculated to lead to evidence relevant to that issue.  But a request for production of the non-exempt records responsive to the CPRA request is improper.  It would allow the discovery process to preempt the litigation of the merits of the CPRA proceeding.  While a trial court presiding over a CPRA proceeding may manage the litigation by setting, if necessary, appropriate timelines for a public entity to complete its review and production of undisputedly non-exempt documents, provide its index of responsive exempt documents, or complete other tasks in furtherance of resolution of disputes over the merits, and to adjudicate allegations of improper delay by setting hearings and receiving argument and evidence on the merits, the court cannot allow a discovery order and its enforcement mechanism to swallow the litigation whole.  Compelling a response to the interrogatory about the underlying investigation was improper because creating a detailed narrative of the investigation--or a defense of why no investigation was undertaken--requires the sort of production of new substantive content that the CPRA does not require.  Some information about the underlying investigation, such as the persons involved, the time period, and the means by which the participants communicated with each other, may be sufficiently relevant to the CPRA issues to be permitted.

Prison Officials Not Entitled to Qualified Immunity or PREP Act Immunity for Allegedly Inadequate Attempts to Prevent COVID Spread during Inmate Transfer

In Hampton v. State of California, published October 3, 2023, the 9th Circuit Court of Appeals affirmed the district court's denial of a motion to dismiss a 42 U.S.C. section 1983 lawsuit brought by the wife of an inmate who died of COVID-19 in San Quentin prison.  The case arises out of the same circumstances as Polanco v. Diaz (9th Cir. 2023) 76 F.4th 918:  The state officials allegedly ordered prisoners in the California Institution for Men, which was suffering a severe COVID-19 outbreak early in the Pandemic, transferred to San Quentin, which was COVID-free.  The officials allegedly took insufficient measures to test the transferred inmates or to isolate them from the San Quentin population.  San Quentin went from being COVID free at the end of May 2020 to having 2,000 inmates (2/3 of the population) infected in August 2020.  By September 2020, 26 inmates and one correctional officer had died of the disease.  The decedent was a 62-year-old inmate who died in September 2020 of COVID.  His wife asserted an 8th Amendment claim under section 1983, state statutory claims, and a state law negligence claim.  The defendants asserted all of the claims were barred by the Public Readiness and Emergency Preparedness Act ("PREP Act"), 42 U.S.C. § 247d-6d, immunity; that the 8th Amendment claim was barred by qualified immunity; and that the state law claims were barred by various Government Claims Act discretionary-act immunities and immunities in the California Emergency Services Act.   

The 9th Circuit affirmed the district court's decision that the complaint was not subject to dismissal.  The PREP Act's immunity for decisions regarding taking countermeasures to a declared state of emergency, because the allegations of the complaint were based on failure to apply covered countermeasures.  Qualified immunity did not apply at the pleading stage, because the Polanco decision established that the alleged failure to adequately take precautions during the transfer was deliberate indifference, and because it was clearly established in 2020 that inmates had a right to be free from exposure to a serious disease.  As for the state law immunities, the court reconsidered earlier decisions holding that a circuit court had jurisdiction to consider such immunities via interlocutory appeal.  The California Supreme Court's decision in  Quigley v. Garden Valley Fire Protection District (2019) 7 Cal. 5th 798 established that Government Code immunities were not jurisdictional, and were immunities from liability rather than immunities from suit.  T

Neither 1st Amendment Right Not to Respond to Police Questioning, Nor 1st Amendment Claim for Retaliatory Police Investigation Was Clearly Established for Purposes of Qualified Immunity

In Moore v. Garnand, published September 29, 2023, the 9th Circuit Court of Appeals reversed an order denying summary judgment on the grounds of qualified immunity.  The defendant police officers investigated the plaintiff on suspicion of arson.  They went to the plaintiff's office with a search warrant.  A plaintiff was present with his attorney.  When the officers questioned the plaintiff, his attorney advised him to remain silent.  One defendant explained he had a warrant to seize the plaintiff's cell phone.  The attorney said the plaintiff would not give up his phone.  The officer took a cell phone out of the plaintiff's hand and handcuffed him.  The plaintiff refused to answer any questions.  The plaintiff was taken to the police station, his DNA and fingerprints were taken, and he was released.  The officers obtained a search warrant for the plaintiff's house and executed it.  During the search, a defendant officer said to the other plaintiff, the first plaintiff's wife, “You know we wouldn’t be here if your husband had just talked to us.” The investigation was closed for lack of evidence.  The plaintiffs sued one of the defendant officers under 42 U.S.C. section 1983, alleging 4th amendment violations related to the search warrants.  After learning about the suit, the defendant officers reopened the criminal investigation against the plaintiffs.  The plaintiffs dismissed their previous suit and brought the current action, alleging that the defendants opened the criminal investigations, arrested the first plaintiff, and obtained the search warrant for the home in retaliation for the first plaintiff's exercise of a 1st Amendment right to remain silent, and that their lawsuit and requests for information from the police were also protected 1st Amendment activities.  The defendants moved for summary judgment.  The plaintiffs moved for an order deferring or denying the motion while they sought discovery.  The district court granted the motion and denied the summary judgment motion without prejudice.

 The court of appeals ruled that it had jurisdiction to hear the interlocutory appeal, despite the district court not ruling on the merits of the summary judgment motion.  The court has jurisdiction to consider purely legal qualified immunity questions when, as here, the district court denies the qualified immunity motion (thereby forcing defendants to undergo burdensome discovery) even if the district court leaves the issue open for reconsideration.  The court addressed only the second prong of qualified immunity:  whether the officers' conduct violated a clearly established right.  The claim that the officers retaliated against them because the first plaintiff exercised his 1st Amendment right to remain silent fails because the plaintiffs identify no case that clearly established that a person has a 1st amendment right to remain silent when questioned by police.  The case law establishing that the 1st Amendment right against state action includes the right to refrain from speaking at all defines the right at too high a level of generality to clearly establish the right at issue.  Case law from other jurisdictions, although nonbinding, reinforces the conclusion that a 1st Amendment right to remain silent during police questioning was not clearly established at the time.  The defendants were therefore entitled to qualified immunity as to that claim.  Similarly, no case law clearly establishes that a retaliatory investigation, per se, violates the 1st Amendment.  Again, nonbinding authority from other jurisdictions supports that the issue was not clearly established.