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A Nevada Highway Patrol policy against officers discussing its canine program with anyone outside the department violates the officers’ free speech rights, a federal appeals court ruled ( Moonin v. Tice , 2017 BL 293545, 9th Cir., No. 15-16571, 8/22/17 ).
The ruling explains that government employees generally retain their First Amendment rights to speak on topics of public concern. Disclosures by government personnel have received elevated attention in recent months as the Trump administration battles alleged leaks by federal employees.
“This opinion ensures employees they’re going to have First Amendment protection if they expose governmental malfeasance and misconduct,” Ken McKenna, a Reno-based attorney who represented the patrol officers challenging the policy, told Bloomberg BNA Aug. 22. “We want people to expose bad governmental behavior.”
Representatives for the Highway Patrol and the Nevada attorney general’s office, which represented the police agency, didn’t immediately respond to requests for comment Aug. 22.
The policy prohibiting “communication with ANY non-departmental and non-law enforcement entity or persons” was too broad to pass constitutional muster. The Highway Patrol has a legitimate interest in keeping certain information private, but the agency failed to demonstrate any past or anticipated disruptions that would justify such a sweeping prohibition, Judge Marsha S. Berzon wrote for the U.S. Court of Appeals for the Ninth Circuit. Judges Mary Murguia and Frederic Block joined the Aug. 22 opinion.
Officer Matt Moonin said the policy prevented him from discussing concerns such as misuse of public funds and search-and-seizure violations. A second officer who challenged the policy with Moonin, Donn Yarnall, died while the case was litigated. A third, Erik Lee, left the force.
“It was the attempt to shut down the public’s right to know,” McKenna said. “That is the important part of the case. Not for my client but for us, the people that live in democracy. You can’t curtail somebody’s right to inform the public.”
The Highway Patrol contended in a brief that Moonin didn’t believe the policy prohibited all public speech as broadly as he alleged because he spoke out on a protected basis several times after it was put into place. There were some circumstances when his speech shouldn’t have been seen as protected because of the agency’s overriding interest in operating efficiently, it said.
The case returns to a trial court so a jury can determine the amount of damages, McKenna said. A judge already ruled for the officers on whether the highway patrol violated their First Amendment rights, the attorney said.
Joseph Tartakovsky, a Nevada deputy solicitor general in Carson City; Cameron Vandenberg, a supervising senior deputy attorney general in Reno; and Brandon Price, a deputy attorney general in Reno, represented the highway patrol.
To contact the reporter on this story: Jon Steingart in Washington at firstname.lastname@example.org
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Matt_Moonin_et_al_v_Kevin_Tice_et_al_Docket_No_1516571_9th_Cir_Au?doc_id=X1Q6NT39TH82.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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