A federal court in Nevada upheld a Nevada Highway Patrol officer‘€™s right to free speech in a ruling filed last week.

A federal court in Nevada upheld a Nevada Highway Patrol officer‘€™s right to free speech in a ruling filed last week.

Three Nevada Highway Patrol employees, Matt Moonin, Donn Yarnall and Erik Lee, first filed a lawsuit against the department in the summer of 2012, claiming NHP administrators sabotaged their K-9 drug-detection unit and retaliated against them after the press reported on alleged illegal searches.

U.S. District Court Judge Larry Hicks handed down a mixed bag of orders in a July 8 filing, ruling in favor of the state on some claims and against it on others.

At the heart of the free speech complaint is an email sent by Kevin Tice on Feb. 24, 2011 to K-9 troopers in NHP‘€™s southern command area. In the message, Tice forbids “direct contact between K-9 handlers or line employees with ANY non-law enforcement entity or persons for the purpose of discussing the Nevada Highway Patrol K-9 program,€” according to court documents. Tice, who is no longer with NHP, told employees that “All communication with ANY non-departmental and non-law enforcement entity or persons regarding (the K-9 program) WILL be expressly forwarded for approval to your chain-of-command.”€ Emphasis using capital letters was reproduced from the court documents.

The court documents detail the allegations about the department‘€™s mishandling of the K-9 program. In the summer of 2011, after the K-9 program was split up, Moonin filed reports with the department saying he noticed “€œa marked increase in unconstitutional searches.” Moonin was alarmed at the routine practice of poking holes in packages at a FedEx sorting facility to make it easier for the dogs to smell the contents.

Nothing came of Moonin‘€™s report.

In Sept. 2011, NHP‘s K-9 troopers, including Moonin and Lee, resigned “en masse” from the program based on objections to new training methods and alleged civil rights violations, according to court documents. Lee and Moonin were placed in lower-status positions with the highway patrol.

Because of the serious nature of the allegations, the court decided that Moonin‘€™s interest as a citizen in commenting on matters of public concern outweighed the state‘€™s interest in confidentiality as an employer. The court agreed that, in Moonin‘€™s case, the email was an unconstitutional prior restraint of his speech.

The court ruled in favor of the state in Lee‘s case, saying he could not make a First Amendment claim since his unit did not receive the email directly. But the court denied the state’s motion for summary judgment in the trespassing claim made by Lee. Whether NHP is liable for damages resulting from the way it entered Lee’s backyard to reclaim an agency-owned dog kennel will have to be determined by a jury.

Because he died earlier this year, Yarnall‘€™s case was not decided, and his family will have to decide how to proceed with his free speech claim. Hicks set a 45-day deadline for those documents to be filed.

Contact Wesley Juhl at wjuhl@reviewjournal.com and 702-383-0391. Follow @WesJuhl on Twitter.

Review-Journal story from 2012: Legal challenge questions reliability of police dogs 

Highway Patrol Violated Officer’s Speech Rights

     RENO, Nev. (CN) – A Nevada Highway Patrol deputy chief violated the free speech rights of a K9 patrol officer when he forbid all employees to talk to outsiders about unrest within the program.
Officers Matt Moonin, Donn Yarnall and Erik Lee sued the state, the highway patrol, the Las Vegas Metropolitan Police Department and several other individuals and entities on June 26, 2012, claiming the defendants engaged in a conspiracy to throttle and hopefully eliminate a new K9 drug interdiction program that some police brass believed a waste of money and resources.
Yarnall, who died earlier this year, was the architect of the program, while Moonin and Lee were officers assigned to it.
The plaintiffs claimed that from the program’s inception, highway patrol administrators “worked to undermine and marginalize it, resulting in routine Fourth Amendment violations.”
The officers claimed the K9 program initially flourished but that their superiors lowered the high standards implemented by Yarnall, and filed false complaints against Yarnall and Lee, removed files from the K9 program’s offices, denied dog food and other basic needs and barred dogs from the K9 program’s offices.
They claimed that as time went on, both human and canine officers were given substandard training, and lax supervision.
Moonin, in particular, expressed alarm that some K9 officers routinely poked holes in packages at a FedEx sorting facility, so that their dogs could more easily smell their contents.
Lee and Moonin went on to claim that after they reported their concerns to department officials in 2009, they were routinely subjected to retaliation, including denial of overtime and abuse from their fellow officers.
According to their complaint, things only grew worse when the state Department of Public Safety divided the K9 program between the Nevada Highway Patrol and the Las Vegas Metropolitan Police Department, a move the plaintiffs claimed led to a “marked increase in unconstitutional searches.”
The plaintiffs claimed the issue came to a head in early 2011, when local television stations began investigating complaints about the K9 program, interviewing state and Las Vegas police officials. Moonin said rumor within the department was that he had tipped the media, but he denied those rumors.
On Feb. 24, 2011, the complaint said, Deputy Chief Tice sent an email to officers warning them not to talk to anyone outside of the department about its K9 or interdiction programs. “All communication with any non-departmental and non-law enforcement entity or persons regarding the Nevada Highway Patrol K9 program or interdiction program or direct and indirect logistics relating to these programs will be expressly forwarded for approval to your chain of command,” Tice wrote. “Any violation of this edict will be considered insubordination and will be dealt with appropriately.”
The plaintiffs claimed Tice’s email was “unconstitutional prior restraint” of their free speech rights. The defendants said it was nothing of the kind, and the parties filed cross motions for summary judgment.
In their motion of dismissal, the defendants claimed Yarnall and Lee had no standing on the claim since Yarnall was not a trooper and Lee was not working in the command that received the email when it was sent.
In a July 2 ruling, U.S. District Judge Larry Hicks said it would be inappropriate to decide the issue in regard to Yarnall until his heirs decide whether to pursue his claims or not. They have 90 days from the time of Yarnall’s death to do so, Hicks said.
As for Lee, Hicks accepted the defendant’s contention that he wasn’t sent the email, but was only advised of it.
“Therefore, Lee has failed to demonstrate sufficient causation to establish standing, and the Court denies Plaintiffs’ motion for Summary Judgment as to Lee on his prior restraint claim.” the judge wrote.
The remaining issue was whether Tice’s email unconstitutionally restrained Moonin’s speech.
“As a threshold matter, the Court determines that, as a matter of law, Tice’s email restricted speech on a matter of public concern and Pickering balancing is appropriate,” Hicks wrote. “Applying the Pickering test, the Court finds Moonin’s interest as a citizen ‘commenting on matters of public concern’ outweigh ‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'”
The judge then went on to consider the specific wording of Tice’s email, particularly is restriction on “any” contact with non highway patrol personnel to discuss the K9 program.
“The focused ‘any,’ combined with the prohibition on ‘discussing … the K9 program,’ suggests that this restriction applies to speech merely ‘related to’ the K9 program,” the judge said, holding that prior restraint of all communication, even when it is only tangentially related to the department business, certainly exceeds the government’s authority, and “regulates troopers’ speech on matters ‘beyond which the employer itself has commissioned or created.’
“Therefore, Tice’s email restricted speech made as a citizen on matters of public concern, and Pickering balancing is appropriate,” Hicks wrote.
The defendants argued no actual injury occurred because the plaintiffs ignored the email directive, and that Tice’s email only enforced the department’s confidentiality policy, and asserted the highway patrol’ interest in keeping official business confidential for officer safety and effective departmental operations.
Hicks was unmoved.
“The Court finds that a reasonable supervisor would have known that such a mandate was an unconstitutional intrusion into Plaintiffs’ established First Amendment rights,” the judge wrote.
He also concluded that given the above facts, Tice is not entitled to qualified immunity on this claim.
“Moonin has … established the elements of prior restraint, and there is no dispute of material fact that would preclude a finding of summary judgment. Therefore, the Court finds that Moonin is entitled to summary judgment on his prior restraint claim,” Hicks wrote.
Representatives of the parties did not immediately respond to a request for comment from Courthouse News.

U.S. judge temporarily blocks wild horse roundup in Nevada

wild-horse-roundupRENO — A federal judge temporarily blocked the roundup of more than 300 wild horses in northern Nevada on Wednesday, saying the government cannot rely on a nearly five-year-old environmental analysis that critics say ignores the latest scientific evidence about the potential harm to the mustangs.

U.S. District Judge Larry Hicks granted the rare preliminary injunction and temporary restraining order preventing the Bureau of Land Management from gathering the horses in the Pine Nut Range southeast of Carson City and injecting dozens of females with a fertility drug that prevents them from reproducing for two years.

He said the federal agency appears to have violated federal law, including the National Environmental Protection Act requiring a more stringent examination of the impacts than the one BLM scientists conducted.

Horse advocates who sought the court order say there’s been significant new research about the potential harms of PZP since BLM reviewed the effects in 2010. New studies confirm earlier concerns the interference with the wild herds prompts mares unable to become pregnant to leave in search of stallions in other bands of mustangs, they said.

“This is a major victory for wild horses and reflects rising concerns about rounding up and drugging wild horses with PZP,” said Jennifer Barnes, a lawyer for Friends of Animals, which brought the suit with the San Francisco-based Protect Mustangs.

Hicks concluded in an eight-page order issued in Reno late Wednesday the two groups are likely to succeed proving the merits of their complaint alleging BLM broke the law by authorizing the roundup without conducting a new or supplemental environmental assessment under NEPA.

“The court finds that the public interest will be best served by enjoining the BLM’s proposed gather, at least until the court has an opportunity to fully consider the merits of the plaintiff’s claims,” the judge wrote. He did not indicate when he might hear additional arguments or set deadlines for future filings on the dispute.

BLM argued that the previous review contemplated further roundups in the Pine Nut Range and that another formal review of the potential impacts on the herds is not required under federal law. The agency’s current plans call for the roundup of all 332 mustangs, with about 200 shipped to holding facilities. The rest would be returned to the range, including some mares that would first be injected with PZP.

BLM maintains there are nearly twice as many horse in the Pine Nut Range as the high desert habitat can support without causing ecological damage, some of which could impact the imperiled sage grouse.

Overall, Nevada is home to about half the nearly 50,000 wild horses and burros roaming federal lands in 10 western states, according to BLM. The agency argues the land — much of it in the throes of multiple years of drought — can only sustain a total population of fewer than 27,000 of the animals across the 10-state region.

The last time a federal judge issued a ruling disrupting a Nevada roundup was in August 2012 when U.S. District Judge Howard McKibben granted a temporary restraining order that cut short by a day a gather near the Nevada-Utah line after he determined a helicopter flew too close to a horse in violation of the law. He later allowed the gather to continue, with special protections aimed at guarding against mistreatment of the animals.

 

Latest suit to block Nevada mustang roundups targets drugs

wild-horse-roundupA federal judge has agreed to let wild-horse advocates make their case for a court order blocking another mustang roundup in Nevada in a legal battle underscoring divisions among protection groups over the use of a fertility drug to slow herd growth.

U.S. District Judge Larry Hicks set a Feb. 9 hearing for the request for a temporary injunction prohibiting the government from gathering 332 horses in the Pine Nut Range southeast of Carson City.

The U.S. Bureau of Land Management agreed to postpone at least until later this month the roundup that had been scheduled to begin last week.

Friends of Animals and Protect Mustangs filed a lawsuit late last month accusing the federal agency of violating the National Environmental Policy Act with the plans to ship about 200 animals to holding pens and return the others to the range, including an estimated 66 mares that will be injected with the fertility control drug, PZP (porcine zona pellucida).wild-horses

A new filing last week seeking a restraining order says the agency plans are based on an outdated 2010 environmental assessment that doesn’t adequately address the physical, behavioral and social impacts of PZP on wild mares.Critics say the only public comment federal agency obtained was on the old assessment from Aug. 23 to Sept. 23, 2010. “A mere 30-day public comment period” failed to provide the public reasonable notice “that more than four years later the Pine Nut herd would be made subject to a hasty roundup in 2015,” they said.

The lawsuit says the federal agency also ignored other studies back then suggesting PZP “likely creates instability in wild horse bands, affects the health of horse and can increase wild horse mortality.” “Since the 2010 EA, significant new scientific information has become available further demonstrating the negative impacts of PZP,” the lawsuit says.

The research includes a paper published later in 2010 in the scientific journal PLOS ONE by Cassandra Nunez, an adjunct assistant professor of ecology at Iowa State University. She was a researcher in Princeton University’s Department of Ecology and Evolutionary Biology when she wrote the paper concluding the Bureau of Land Management’s earlier assessment was “accurate regarding the information that was available at the time.”

“It is outdated now,” she said in a 40-page affidavit attached to the lawsuit Thursday. “Recent research has demonstrated changes in mare stress and reproductive physiology, in addition to changes in male behavior.”

Bands of wild horses historically are stable, with mares staying with the same males much if not all of their lives, the lawsuit says. “However, when they have been treated with PZP and mares cannot get pregnant, they will leave bands.”

Bureau of Land Management officials said they cannot comment on pending litigation. But the agency said on its website that it uses PZP in cooperation with the Humane Society of the United States under FDA rules that apply to research on new animal drugs. “The PZP vaccine does not affect unborn foals, and the vaccinated mares return to normal fertility within four years,” the Bureau of Land Management said.

The National Cattlemen’s Association and others back PZP to supplement roundups of horses they say are robbing their livestock of precious forage. The National Academy of Sciences advanced the idea in a 451-page report in 2013, recommending fewer roundups and more emphasis on fertility control.

While horse groups unanimously oppose roundups, some disagree about PZP.

The American Wild Horse Preservation Campaign, the largest coalition of horse groups in the nation, was among those who urged increased use of PZP in 2011.

“The PZP vaccine represents the most humane and cost-beneficial alternative to the current, cost-prohibitive wild horse removals,” said the policy statement signed by members of the Humane Society, American Society for the Prevention of Cruelty of Animals and Animal Welfare Institute.

Anne Novak, executive director of the San Francisco-based Protect Mustangs, argued that the artificial manipulation of the herds “takes away their freedom to live as nature intended.”

“Management based on PZP drugging is setting up wild horses and burros to be controlled in large zoo-like exhibits on public lands,” she said. “They need to be left alone.”

The Bureau of Land Management said a population survey in August determined there were 332 horses in the horse management area — more than twice as many as it says can be sustained over the 140 square miles in Lyon and Douglas counties.

Craig Downer, a wildlife biologist who works with Protect Mustangs, denied that the Pine Nut herds are overpopulated. He has observed the horses for years and documented that PZP will “disrupt normal social interactions and cause much frustration and dysfunction.”

Problems with PZP have been covered up by proponents, including “wild horse supporters who are being manipulated into supporting PZP,” Downer said.