by David Reutter

The Ninth Circuit Court of Appeal held that a Nevada Highway Patrol (NHP) policy prohibiting all of its K9 handlers and line employees from discussing its K9 program with any non-departmental entity violated NHP troopers' rights to freedom of speech. The violation involved a well-established constitutional right, so the policy maker was not entitled to qualified immunity.

Matt Moonin, a trooper in the NHP K9 program, filed a 42 U.S.C. § 1983 complaint against NHP's Major Kevin Tice, following Tice's February 24, 2011 email that set policy violating troopers' right to freedom of speech. The email announced that no NHP handler or line employee is permitted to discuss the agency's K9 program with anyone outside of the agency. Failure to comply would result in disciplinary action.

Moonin complained that such prior restraint was intended to unlawfully interfere with troopers' right inform the public of possible problems with the program's administration and management. This violated his right as a citizen to address a public concern. The federal district court denied the defendant's request for qualified immunity. The court also partially granted Moonin's request for summary judgment on prior restraint.

Tice appealed. The Ninth Circuit held that a government employer may have a legitimate interest in restricting that restrictions apply to official duties; they are imposed to prevent anticipated and real harm; and they will actually alleviate the harm. Such harm may include disclosure of sensitive and confidential information; disclosures that may cause confusion in official communications; actions that may cause disruptions in the agency's operations.

The Ninth Circuit held that Tice's overly broad ban of any discussion of the K9 program with any outside agent or entity did not serve a legitimate government interest, and it violated well-established rights to free speech.

The overly broad ban was not tailored to address only official business or sensitive information. It prohibited "ANY" discussion of the K9 program with anyone outside of the agency. This broad ban did not address the troopers' rights as citizens to address legitimate public concerns. The restriction prevented troopers from speaking to their own families, the community, the legislature, or anyone for any reason. The court held that, "This expansive policy does not bear a 'close and rational relationship' to the department's legitimate interests."

The policy also ran afoul of constitutional protections when it mandated pre-approval of the speech. The court only considered information of public concern, not that protected from disclosure by statute. The court held that such pre-approval allowed unacceptable risk of agency censorship, and that violated First Amendment protections.

The policy also violated the well-established precedent holding it is unconstitutional to punish officers for publicly addressing problems perceived in the department's conduct or management. As a citizen in the community, an officer has a right to address such public concerns. Tice argued that silencing opposition would make the program more efficient. The court held that avoidance of accountability is not an interest that justifies restricting free speech.

The Ninth Circuit held that Tice violated the troopers' rights to speak, and he did it despite well-established law prohibiting such action. Accordingly, he was not entitled to qualified immunity. Also, where the decision was based on undisputed facts, Moonin was also granted partial summary judgment.

See: Moonin v. Tice, No. 15-16571, F. 3d (9^th Cir. 2016).

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