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.
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