In Moonin v. Tice, published August 22, 2017, the 9th Circuit Court of Appeals affirmed a district court order denying qualified immunity to a Nevada Highway Patrol supervising officer and granting partial summary judgment to a patrolman. The supervisor sent an e-mail to K9 officers in the patrol barring any direct contact between K9 handlers or line employees and any non-departmental or law-enforcement personnel for the purpose of discussing the patrol's K9 and drug interdiction programs. Any communication was to be directed to the chain of command. Violation of the edict was to be considered insubordination. The plaintiff K9 handler alleged that the purpose of the edict was to prevent problems in the K9 program from being made public. He sued the supervisor and others, alleging they had violated his First Amendment rights by imposing a prior restraint on his communications with the public.
The 9th Circuit agreed that the edict violated the First Amendment. It applied an analysis similar to that under which First Amendment retaliation claims are analyzed, except that the government bears a heavier burden in justifying a prior restraint of employee speech. The edict was drawn broadly enough to bar public employees' speech, outside the scope of their duties, on matters of public concern. The edict therefore violated the employees' First Amendment rights unless it bore a close and rational relationship to the employer's legitimate interests. The edict did not meet that test. The interests articulated were preventing disclosure of sensitive law enforcement information, controlling the department's official communications about the program, and ensuring effective operation of the agency without disruption by outside groups. The first two justifications are legitimate ones, but the broad edict is not tailored to them. To the extent the third purpose is to avoid government accountability, it is an insufficient justification.
The 9th Circuit also concluded that the law was clearly established in 2011, when the edict issued, that a broad prohibition on employees contacting the public about a program violated the First Amendment. U.S. Supreme Court and 9th Circuit case law concerning narrower limitations--notice to superiors before speaking, and requiring clearance from superiors before speaking--suggested the broad ban here was improper. Although there was little Supreme Court and 9th Circuit guidance on broad bans like this one, persuasive authority from other circuits, district courts, and a state court clearly established that the ban would be unconstitutional.
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