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 “a 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 stateâs motion for summary judgment in the trespassing claim made by Lee. Whether NHP is liable for damages resulting from the way it entered Leeâs 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.
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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.