Greg Moore v. Sean Garnand
83 F.4th 743
9th Cir.2023Background
- June 8, 2017: an arson occurred at a property connected to Mr. Moore. Police determined it was arson; Mr. Moore identified himself as responsible and left after the fire investigator told him he could.
- The next day officers, with a warrant, went to Mr. Moore’s office while he was with counsel; when he invoked his right to remain silent an officer seized his phone, handcuffed him, transported him to the station, and took DNA and fingerprints; he was released shortly after.
- Five days later officers obtained and executed warrants to search the Moores’ office and home; during the home search an officer told Mrs. Moore, “You know we wouldn’t be here if your husband had just talked to us.”
- Police opened a criminal financial investigation, obtained subpoenas for company records, interviewed witnesses, seized a contractor’s phone, and sought to induce the IRS to investigate; the investigation closed for lack of evidence in April 2018.
- Plaintiffs filed § 1983 claims alleging First Amendment retaliation based on (1) Mr. Moore’s silence during questioning and (2) Plaintiffs’ later lawsuits and public-records requests; the district court denied defendants’ qualified immunity motion without prejudice, and defendants appealed the purely legal question whether the conduct violated clearly established First Amendment law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mr. Moore’s invocation of silence during police questioning is protected by the First Amendment and whether retaliation for that silence was clearly established | Moore: refusing to answer police questions is protected expression/silence; arrest/searches were retaliatory | Garnand/Salisbury: no clearly established First Amendment right to remain silent in response to police questioning; qualified immunity applies | Held: No controlling authority clearly established such a right; defendants entitled to qualified immunity on silence-based claim |
| Whether instituting or pursuing a criminal investigation in retaliation for plaintiffs’ lawsuits and records requests is a clearly established First Amendment violation | Moore: reopening investigation, interviewing witnesses, subpoenas and IRS inducement were retaliatory adverse actions for protected litigation and records requests | Defendants: a retaliatory investigation, by itself, was not clearly established as a constitutional violation; qualified immunity applies | Held: No binding precedent clearly establishes a standalone retaliatory-investigation tort; defendants entitled to qualified immunity on these claims |
| Whether the court of appeals has jurisdiction to review denial of qualified immunity before discovery completed | Plaintiffs: district court left immunity open for reconsideration so appeal not proper | Defendants: denial forced burdensome discovery and presents a purely legal question on clearly established law, permitting interlocutory review | Held: Court had jurisdiction to decide the purely legal qualified-immunity question despite the district court’s procedural posture |
Key Cases Cited
- Ashcroft v. al-Kidd, 563 U.S. 731 (explaining the "clearly established" standard for qualified immunity)
- Anderson v. Creighton, 483 U.S. 635 (officers must have fair warning that conduct is unconstitutional)
- Reichle v. Howards, 566 U.S. 658 (right must be defined with particularity for qualified-immunity analysis)
- Wooley v. Maynard, 430 U.S. 705 (First Amendment includes right to refrain from speaking, but not specific to police questioning)
- Hartman v. Moore, 547 U.S. 250 (not deciding whether a retaliatory investigation alone is a distinct constitutional tort)
- White v. Lee, 227 F.3d 1214 (9th Cir.) (retaliatory investigation violated First Amendment when considered in scope and manner of conduct)
- Ballentine v. Tucker, 28 F.4th 54 (9th Cir.) (framework for evaluating whether unlawfulness was clearly established)
- Ganwich v. Knapp, 319 F.3d 1115 (9th Cir.) (interlocutory appeal allowed when denial of immunity forces discovery burdens)
- Giebel v. Sylvester, 244 F.3d 1182 (9th Cir.) (assuming plaintiff’s version of facts for qualified-immunity review)
- Mitchell v. Forsyth, 472 U.S. 511 (qualified immunity protects officials from burdens of pretrial discovery)