GREG MOORE, ET AL V. SEAN GARNAND, ET AL, No. 22-16236 (9th Cir. 2023)
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Plaintiffs, husband and wife, filed a 42 U.S.C. Section 1983 action against several officers of the Tucson Police Department. Two officers (collectively, “Defendants”) are the only remaining defendants. Plaintiffs’ complaint alleged First Amendment retaliation claims arising from Defendants’ investigation of two arsons that occurred at properties connected to the husband. Defendants appealed from the district court’s order denying without prejudice their motion for summary judgment based on qualified immunity.
The Ninth Circuit reversed the district court’s denial of summary judgment as to the First Amendment claims. The panel concluded that Plaintiffs failed to show that Defendants’ conduct violated clearly established law. It was not clearly established that Plaintiff has a First Amendment right to remain silent when questioned by the police. Nor was it clearly established that a retaliatory investigation per se violates the First Amendment. Defendants were therefore entitled to qualified immunity on the First Amendment claims based on the husband's silence and Plaintiffs’ lawsuits and requests for public disclosures.
Court Description: First Amendment Retaliation/Qualified Immunity The panel reversed the district court’s order on summary judgment denying qualified immunity to police officers in an action alleging, in part, First Amendment retaliation arising from defendants’ investigation of two arsons at properties connected to plaintiff Greg Moore.
Plaintiffs alleged that in retaliation for Mr. Moore remaining silent during police questioning and plaintiffs’ subsequent civil rights lawsuit and request for disclosures of public records, defendants, among other things, opened criminal investigations against them and attempted to induce the IRS into opening a criminal investigation.
The panel first held that it had jurisdiction over the district court’s denial of qualified immunity as to plaintiffs’ First Amendment claims because defendants presented a purely legal issue: whether, taking as true plaintiffs’ version of the facts, it was clearly established that defendants’ conduct violated plaintiffs’ First Amendment rights.
The panel next concluded that plaintiffs failed to show that defendants’ conduct violated clearly established law. It was not clearly established that Mr. Moore has a First Amendment right to remain silent when questioned by the police. Nor was it clearly established that a retaliatory investigation per se violates the First Amendment. Defendants were therefore entitled to qualified immunity on the First Amendment claims based on Mr. Moore’s silence and plaintiffs’ lawsuits and requests for public disclosures.
The panel addressed plaintiffs’ Fourth Amendment claims in a concurrently filed memorandum disposition.
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