Moore v. Garnand

83 F.4th 743

Greg MOORE; Patricia Moore, Plaintiffs-Appellees,andSouthwest Nonprofit Housing Corporation;JC Moore Grandchildren's Trust; ESMJ Partners, Plaintiffs, v. Sean GARNAND, Detective; Dain Salisbury, Sergeant, Defendants-Appellants,andRebecca Lopez, Detective; Richard Radinsky, Sergeant;Kimberly Frie, Sergeant; Amy Garnand; Benjamin Frie;Holly Radinsky; City of Tucson, Defendants.

No. 22-16236

United States Court of Appeals, Ninth Circuit

Argued and Submitted July 12, 2023 San Francisco, California

Filed September 29, 2023

Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding, D.C. No. 4:19-cv-00290-RM-LAB

Dennis P. McLaughlin (argued) and Sarah E. Pace, Principal Assistant City Attorneys; Michael G. Rankin, City Attorney; City Attorney's Office, Tucson, Arizona; for Defendants-Appellants.

Lawrence J. Wulkan (argued) and Jennifer L. Allen, Zwillinger Wulkan PLC, Phoenix, Arizona; Michael G. Moore, Law Office of Michael Garth Moore, Tucson, Arizona; for Plaintiffs-Appellees.

Before: Sidney R. Thomas, Mark J. Bennett, and Holly A. Thomas, Circuit Judges.

OPINION

BENNETT, Circuit Judge:

Greg and Patricia Moore (collectively, "Plaintiffs"), husband and wife, filed this 42 U.S.C. § 1983 action against several officers of the Tucson Police Department. Officers Sean Garnand and Dain Salisbury (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 Mr. Moore.¹ Defendants appeal from the district court's order denying without prejudice their motion for summary judgment based on qualified immunity.

We have jurisdiction to consider the purely legal issue of whether, taking as true Plaintiffs' version of the facts, it was clearly established that Defendants' conduct violated their First Amendment rights. Because Plaintiffs fail to show that Defendants' conduct violated clearly established law, Defendants are entitled to qualified immunity on the First Amendment claims. Thus, we reverse the district court's denial of summary judgment as to the First Amendment claims.

I. BACKGROUND²

Defendants' investigation started on the afternoon of June 8, 2017, when a fire broke out at a building. The cause of the fire was determined to be arson. Mr. Moore arrived at the scene while the firefighters were still tending to the fire. He identified himself as being responsible for the property. Mr. Moore left the scene after an investigator from the fire department told him that he could leave. Later that night, a police officer called Mr. Moore and asked if he could meet to talk about the fire. Mr. Moore said that he could meet the next day at his office.

The next day, Defendants went to Mr. Moore's office with a search warrant that they had obtained on the night of the fire. Mr. Moore was in his office with an attorney. Officer Garnand identified himself and started to ask Mr. Moore questions. The attorney advised Mr. Moore to remain silent. Officer Garnand then explained that he had a warrant to seize Mr. Moore's cell phone and evidence from his person. The attorney said that Mr. Moore would not give up his cell phone. At that point, Officer Garnand took a cell phone out of Mr. Moore's hand and handcuffed him. Mr. Moore refused to answer any questions, stating that he was invoking his right to remain silent. Mr. Moore was transported to the police station, where his DNA and fingerprints were taken. He was released soon after.

Five days after Mr. Moore's arrest, Defendants obtained a warrant to search Mr. Moore's office and the Moores' home. The warrant was supported by Officer Garnand's affidavit, which referenced a 2011 arson at a property connected to Mr. Moore and the recent June 8, 2017 arson. Officer Garnand led the search at the Moores' home. Mrs. Moore was home alone and, sometime during the search, Officer Garnand told her, "You know we wouldn't be here if your husband had just talked to us."

In November 2017, Defendants caused the Tucson Police Department to open a criminal financial investigation against Plaintiffs. As part of the investigation, the police identified companies linked to Plaintiffs and obtained four subpoenas for the companies' financial records. These subpoenas were served on various banks. The investigation was closed on April 11, 2018, because there was no evidence that Plaintiffs had committed any crimes.

On August 13, 2018, Plaintiffs filed a § 1983 action in federal court against Officer Garnand.³ The suit alleged Fourth Amendment violations related to the search warrants. After learning about that suit, Defendants reopened the criminal investigation against Plaintiffs. Defendants questioned two witnesses—the last contractor and the last tenant present at the property before the fire—and seized the contractor's cell phone. Defendants also tried to induce the Internal Revenue Service ("IRS") to open a criminal investigation against Plaintiffs.

In October and December 2018, Plaintiffs submitted public records requests to the Tucson Police Department, seeking all records related to them. In March 2019, Plaintiffs filed a special action in state court against the City of Tucson, seeking to compel the disclosure of certain documents that had been withheld.

Plaintiffs filed this suit in May 2019. They claim that Mr. Moore had a First Amendment right to remain silent when Defendants sought to question him at his office, and that their lawsuits and requests for information were also protected First Amendment activities. In retaliation for exercising those rights, Defendants allegedly, without any reasonable suspicion, opened a criminal investigation against Plaintiffs; obtained four subpoenas for their companies' financial records; interviewed two witnesses; attempted to induce the IRS into opening a criminal investigation against Plaintiffs; and reopened the criminal investigation against Plaintiffs after it had been closed.⁴ Additionally, as to the First Amendment claim based on Mr. Moore's silence, Plaintiffs allege that Defendants also retaliated by arresting Mr. Moore and obtaining and executing the search warrant for Mr. Moore's office and the Moores' home.

In December 2021, a magistrate judge granted Defendants leave to file their oversized motion for summary judgment based on qualified immunity. That same day, the district court lifted its order granting Defendants' law enforcement investigatory privilege ("LEIP"), which had been in effect since December 2019 and significantly limited Plaintiffs' scope of discovery. Plaintiffs moved to stay summary judgment briefing under Federal Rule of Civil Procedure 56(d),⁵ arguing that they had been unable to obtain evidence necessary to oppose the motion because of the LEIP.

In February 2022, Defendants filed an amended motion for summary judgment based on qualified immunity, and Plaintiffs renewed their Rule 56(d) motion. A magistrate judge granted Plaintiffs' Rule 56(d) motion in part by ordering Defendants to produce certain discovery but stayed all other discovery. The magistrate judge also ordered Plaintiffs to respond to Defendants' summary judgment motion.

Plaintiffs challenged the magistrate judge's rulings before the district court. The district court issued an order overruling the magistrate judge's relevant decisions. The order granted Plaintiffs Rule 56(d) relief and lifted the discovery stay. Rather than defer ruling on the motion, the district court decided to deny it: "Defendants' Amended Motion for Summary Judgment (Doc. 348) is denied without prejudice and with leave to re-file after the completion of discovery." Defendants timely appeal from the district court's denial.

II. JURISDICTION

The parties dispute whether we have jurisdiction to consider the "First Amendment" portion of this appeal.⁶ "An interlocutory appeal may be taken from the denial of immunity if the denial presents a question of law." KRL v. Moore, 384 F.3d 1105, 1109-10 (9th Cir. 2004). A question of law is presented if the defendant argues that "assuming the facts as alleged by [plaintiff] to be true, his conduct did not violate [plaintiff's constitutional] rights, and that even if it did, he was entitled to qualified immunity." Giebel v. Sylvester, 244 F.3d 1182, 1186 (9th Cir. 2001) (footnote omitted); see also KRL, 384 F.3d at 1110 ("[T]he application of qualified immunity to Plaintiffs' allegations is a question of law . . . .").

Defendants present a purely legal question. They argue that, even assuming Defendants violated Plaintiffs' First Amendment rights, they are entitled to qualified immunity because the unlawfulness of their conduct was not clearly established. We have jurisdiction to consider that legal issue. See Ames v. King County, 846 F.3d 340, 347 (9th Cir. 2017) ("[W]e may adjudicate 'legal' interlocutory appeals; that is, we may properly review a denial of qualified immunity where a defendant argues . . . that the facts, even when considered in the light most favorable to the plaintiff, show . . . no violation of a right that is clearly established in law.").

Plaintiffs argue that we lack jurisdiction because the district court did not conclusively determine whether Defendants were entitled to qualified immunity. But our caselaw does not support Plaintiffs' position. In Ganwich v. Knapp, 319 F.3d 1115 (9th Cir. 2003), we rejected plaintiffs' argument that we lacked jurisdiction to review the denial of qualified immunity because "the district court's ruling occurred before the completion of discovery and expressly left the qualified immunity question open for reconsideration after the completion of discovery." Id. at 1119. We reasoned that jurisdiction was proper because "[f]orcing the defendant officers to undergo discovery, without the possibility of appeal to us, would erode any qualified immunity to the burdens of discovery the...