Greg Moore v. Sean Garnand

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREG MOORE; PATRICIA No. 22-16236

MOORE,

Plaintiffs-Appellees, D.C. No.

4:19-cv-00290-

and RM-LAB

SOUTHWEST NONPROFIT

HOUSING CORPORATION; JC OPINION

MOORE GRANDCHILDREN'S

TRUST; ESMJ PARTNERS,

Plaintiffs,

v.

SEAN GARNAND, Detective; DAIN

SALISBURY, Sergeant,

Defendants-Appellants,

and

REBECCA LOPEZ, Detective;

RICHARD RADINSKY, Sergeant;

KIMBERLY FRIE, Sergeant; AMY

GARNAND; BENJAMIN FRIE;

HOLLY RADINSKY; CITY OF

TUCSON,

Defendants.

2 MOORE V. GARNAND

Appeal from the United States District Court

for the District of Arizona

Rosemary Márquez, District Judge, Presiding

Argued and Submitted July 12, 2023

San Francisco, California

Filed September 29, 2023

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

Thomas, Circuit Judges.

Opinion by Judge Bennett

SUMMARY**

First Amendment Retaliation/Qualified Immunity

The panel reversed the district court’s order on summary

judgment denying qualified immunity to police officers in

an action alleging, in part, First Amendment retaliation

arising from defendants’ investigation of two arsons at

properties connected to plaintiff Greg Moore.

Plaintiffs alleged that in retaliation for Mr. Moore

remaining silent during police questioning and plaintiffs’

subsequent civil rights lawsuit and request for disclosures of

public records, defendants, among other things, opened

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MOORE V. GARNAND 3

criminal investigations against them and attempted to induce

the IRS into opening a criminal investigation.

The panel first held that it had jurisdiction over the

district court’s denial of qualified immunity as to plaintiffs’

First Amendment claims because defendants presented a

purely legal issue: whether, taking as true plaintiffs’ version

of the facts, it was clearly established that defendants’

conduct violated plaintiffs’ First Amendment rights.

The panel next concluded that plaintiffs failed to show

that defendants’ conduct violated clearly established law. It

was not clearly established that Mr. Moore has a First

Amendment right to remain silent when questioned by the

police. Nor was it clearly established that a retaliatory

investigation per se violates the First Amendment.

Defendants were therefore entitled to qualified immunity on

the First Amendment claims based on Mr. Moore’s silence

and plaintiffs’ lawsuits and requests for public disclosures.

The panel addressed plaintiffs’ Fourth Amendment

claims in a concurrently filed memorandum disposition.

COUNSEL

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.

4 MOORE V. GARNAND

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

1

In this opinion, we address only the First Amendment claims. In a

concurrently filed memorandum disposition, we address Plaintiffs’

Fourth Amendment claims.

2

For purposes of this opinion, we accept Plaintiffs’ version of the facts

as true. See Giebel v. Sylvester, 244 F.3d 1182, 1185 n.1 (9th Cir. 2001).

MOORE V. GARNAND 5

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.”

6 MOORE V. GARNAND

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

3

Plaintiffs voluntarily dismissed this suit in mid-2019 and replaced it

with the instant suit.

MOORE V. GARNAND 7

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

4

Defendants opened the criminal investigation in November 2017 and

obtained the subpoenas sometime before April 2018. Because these acts

happened before August 2018, which is when Plaintiffs first engaged in

any protected activity by filing suit against Officer Garnand, we do not

consider them in analyzing Plaintiffs’ First Amendment retaliation

claims based on their lawsuits and requests for information. See Pratt v.

Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (a decision to transfer an

inmate that preceded the inmate’s television interview could not have

been made in retaliation for the interview). As noted below, however,

we do consider them in analyzing the First Amendment retaliation claims

based on Mr. Moore remaining silent.

5

“If a nonmovant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its opposition, the court

8 MOORE V. GARNAND

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

may: (1) defer considering the motion or deny it; (2) allow time to obtain

affidavits or declarations or to take discovery; or (3) issue any other

appropriate order.” Fed. R. Civ. P. 56(d).

6

We resolve the parties’ Fourth Amendment jurisdictional dispute in our

concurrently filed memorandum disposition.

MOORE V. GARNAND 9

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

10 MOORE V. GARNAND

immunity to the burdens of discovery the officers might

possess.” Id.; see also Behrens v. Pelletier, 516 U.S. 299,

308 (1996) (holding that qualified immunity gives

government officials a right “not merely to avoid standing

trial, but also to avoid the burdens of such pretrial matters as

discovery” (internal quotation marks and emphasis omitted)

(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)));

Moss v. U.S. Secret Serv., 572 F.3d 962, 973 (9th Cir. 2009)

(“[A]n order clearing the way for burdensome pre-trial

discovery obligations renders the denial of immunity

effectively unreviewable on appeal from final judgment—

immunity from suit is of no use at that late stage.”).

Under Ganwich, we have jurisdiction to consider purely

legal qualified immunity questions when, as here, the district

court denies the qualified immunity motion (thereby forcing

defendants to undergo burdensome discovery) but leaves the

issue open for reconsideration.7

Plaintiffs contend that Ganwich is distinguishable

because it did not involve a denial of qualified immunity

based on the district court’s perceived need for further

discovery. Under the circumstances, we do not view this as

7

Because the district court denied Defendants’ summary judgment

motion, Miller v. Gammie, 335 F.3d 889, 894 (9th Cir. 2003) (en banc)

(holding that the court lacked jurisdiction over an order that “did not

expressly deny the motion” but “deferred ruling on immunity”), and

Moss v. U.S. Secret Service, 572 F.3d 962, 972–73 (9th Cir. 2009)

(holding that the court lacked jurisdiction over the district court’s

deferral of the summary judgment motion), do not control. Miller and

Moss are further distinguishable because here, the district court’s order

subjected Defendants to discovery without limitation. See Miller, 335

F.3d at 892 (explaining that the order “deferred a ruling, pending limited

discovery” (emphasis added)); Moss, 572 F.3d at 973 (explaining that

“the district court ha[d] yet to order any discovery or to compel the

Agents to submit to depositions”).

MOORE V. GARNAND 11

a material distinction. The district court’s determination that

Plaintiffs should have the opportunity to conduct further

discovery under Rule 56(d) does not affect our ability to

accept as true Plaintiffs’ version of the facts and apply the

qualified immunity legal standards to those facts.8 See KRL,

384 F.3d at 1117 (holding that we could decide qualified

immunity as a matter of law, even though the district court’s

denial was based on a perceived need for more discovery).

And our underlying rationale in Ganwich for finding

jurisdiction—that “[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 officers might possess,” 319 F.3d at 1119—

applies with equal force here, as the district court’s order

denying summary judgment subjected Defendants to

unlimited discovery.

In sum, accepting as true Plaintiffs’ version of the facts,

we have jurisdiction to consider whether Defendants are

entitled to qualified immunity because Plaintiffs’ First

Amendment rights were not clearly established at the time.

See Ames, 846 F.3d at 347.

III. STANDARD OF REVIEW

We review de novo a district court’s denial of qualified

immunity. Ames, 846 F.3d at 347. We “assume the version

of the facts asserted by the nonmoving party.” Moss, 572

F.3d at 973.

8

Because our de novo review of the qualified immunity issue, see

Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022), does not require us

to consider the district court’s reason for denying the summary judgment

motion, we do not reach the question whether a Rule 56(d) determination

could be an immediately appealable collateral order.

12 MOORE V. GARNAND

IV. DISCUSSION

Plaintiffs’ First Amendment retaliation claims can be

divided into two categories: retaliation based on (1) Mr.

Moore’s decision to remain silent when Defendants sought

to question him at his office; and (2) Plaintiffs’ lawsuits

against Officer Garnand and the City of Tucson, and their

requests for disclosures of public records.

To recover under § 1983 for [First

Amendment] retaliation, a plaintiff must

prove: (1) he engaged in constitutionally

protected activity; (2) as a result, he was

subjected to adverse action by the defendant

that would chill a person of ordinary firmness

from continuing to engage in the protected

activity; and (3) there was a substantial

causal relationship between the

constitutionally protected activity and the

adverse action.

Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010)

(footnote omitted).

“[T]o overcome qualified immunity, Plaintiffs must

show that [defendants] (1) ‘violated a federal statutory or

constitutional right’ and (2) ‘the unlawfulness of their

conduct was clearly established at the time.’” Ballentine v.

Tucker, 28 F.4th 54, 61 (9th Cir. 2022) (quoting District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). We may

analyze these elements in any order. Id. Here, we consider

only whether Defendants’ conduct violated a clearly

established right.

MOORE V. GARNAND 13

“A Government official’s conduct violates clearly

established law when, at the time of the challenged conduct,

‘the contours of a right are sufficiently clear’ that every

‘reasonable official would have understood that what he is

doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011) (internal brackets omitted) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). While

we “do not require a case directly on point, . . . existing

precedent must have placed the statutory or constitutional

question beyond debate.” Id. “The Supreme Court has

repeatedly stressed that courts must not define clearly

established law at a high level of generality.” Ballentine, 28

F.4th at 64 (internal quotation marks omitted) (quoting

Wesby, 138 S. Ct. at 590).

“In the Ninth Circuit, we begin [the clearly established]

inquiry by looking to binding precedent. If the right is

clearly established by decisional authority of the Supreme

Court or this Circuit, our inquiry should come to an end.”

Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004)

(internal citation omitted). “[I]n the absence of binding

precedent, we look to whatever decisional law is available to

ascertain whether the law is clearly established for qualified

immunity purposes . . . .” Id. (internal quotation marks

omitted) (quoting Drummond ex rel. Drummond v. City of

Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003)).

A. Retaliation Based on Mr. Moore’s Silence

Plaintiffs claim that Defendants retaliated against them

because Mr. Moore exercised his First Amendment right to

remain silent when questioned by Defendants. But Plaintiffs

identify no case that clearly established that a person has a

First Amendment right to remain silent when questioned by

the police.

14 MOORE V. GARNAND

Plaintiffs mainly rely on Wooley v. Maynard, 430 U.S.

705 (1977). In Wooley, the Court held that it was a First

Amendment violation to compel plaintiffs to display the

motto “Live Free or Die” on their license plates. Id. at 713.

In reaching its holding, the Court stated generally that “the

right of freedom of thought protected by the First

Amendment against state action includes both the right to

speak freely and the right to refrain from speaking at all.”

Id. at 714 (emphasis added). Plaintiffs contend that this

general statement clearly established Mr. Moore’s First

Amendment right to remain silent when questioned by

Defendants.

But Plaintiffs’ position is at odds with the Supreme

Court’s command that clearly established law not be defined

at “a high level of generality.” Ballentine, 28 F.4th at 64

(quoting Wesby, 138 S. Ct. at 590). “[T]he right allegedly

violated must be established, ‘not as a broad general

proposition,’ but in a ‘particularized’ sense so that the

‘contours’ of the right are clear to a reasonable official.”

Reichle v. Howards, 566 U.S. 658, 665 (2012) (internal

quotation marks and citation omitted) (first quoting

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam);

and then quoting Anderson, 483 U.S. at 640). Wooley did

not deal with First Amendment rights during police

questioning. Nor did it suggest that its general statement

about a First Amendment right to refrain from speaking

could be extended to refusing to speak in response to police

questioning, with or without Miranda rights. Thus, Wooley

did not clearly establish a First Amendment right to remain

silent during police questioning.9 See Riley’s Am. Heritage

9

Plaintiffs also point to Beck v. City of Upland, 527 F.3d 853 (9th Cir.

2008), and Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en

MOORE V. GARNAND 15

Farms v. Elsasser, 32 F.4th 707, 729 (9th Cir. 2022) (“The

right to be free from First Amendment retaliation cannot be

framed as ‘the general right to be free from retaliation for

one’s speech.’ Rather, the right must be defined at a more

specific level tied to the factual and legal context of a given

case.” (internal citation omitted) (quoting Reichle, 566 U.S.

at 665)).

Substantial authority, although nonbinding, reinforces

our conclusion that a First Amendment right to remain silent

during police questioning was not clearly established at the

time. See, e.g., Newsome v. Bogan, 617 F. Supp. 3d 133, 152

(W.D.N.Y. 2022) (“No case in the Second Circuit has

expressly held . . . that the right to decline to speak protects

an individual’s right to decline to participate in a police

interview . . . .”); Alexander v. City of Round Rock, 854 F.3d

298, 308 (5th Cir. 2017) (“The sparse case law that does

exist . . . indicates no consensus that a defendant has a First

Amendment right not to answer an officer’s questions during

a [Terry] stop . . . .”); Koch v. City of Del City, 660 F.3d

1228, 1244 (10th Cir. 2011) (“[W]e . . . have found no

authority recognizing a First Amendment right to refuse to

answer questions during a Terry stop.”); McFadyen v. Duke

Univ., 786 F. Supp. 2d 887, 949 (M.D.N.C. 2011) (“[T]he

Court rejects Plaintiffs’ legal contention that declining to

speak to police officers during a criminal investigation raises

First Amendment protections.”), aff’d in part, rev’d in part,

dismissed in part on other grounds sub nom. Evans v.

banc). But neither case suggested—much less clearly established—a

First Amendment right to remain silent during police questioning. See

Beck, 527 F.3d at 868–69 (analyzing First Amendment retaliation claims

based on “brusque comments” and “advocacy efforts”); Lacey, 693 F.3d

at 916–17 (analyzing First Amendment retaliation claims based on

“newspaper articles criticizing public officials”).

16 MOORE V. GARNAND

Chalmers, 703 F.3d 636 (4th Cir. 2012). But see Mendia v.

Garcia, No. 10-CV-03910-MEJ, 2016 WL 2654327, at *8

(N.D. Cal. May 10, 2016) (recognizing that plaintiff had a

First Amendment right not to speak to ICE agents).

Because it was not clearly established that Mr. Moore

had a First Amendment right to remain silent when

questioned by Defendants, Defendants are entitled to

qualified immunity on the First Amendment claims based on

Mr. Moore’s silence. See Ballentine, 28 F.4th at 61.

B. Retaliation Based on Plaintiffs’ Lawsuits and

Requests for Information

Plaintiffs filed suits against Officer Garnand and the City

of Tucson and requested disclosures of public records.10

Plaintiffs claim that in retaliation for exercising those First

Amendment rights, Defendants conducted a criminal

investigation against Plaintiffs without any reasonable

suspicion—which included interviewing two witnesses—

and attempted to induce the IRS into opening a criminal

investigation against Plaintiffs. In short, Plaintiffs allege

that Defendants violated their First Amendment rights by

pursuing a retaliatory investigation.

Again, however, Plaintiffs identify no caselaw that

clearly established that a retaliatory investigation per se

violates the First Amendment. The Supreme Court has not

decided the issue. See Hartman v. Moore, 547 U.S. 250, 262

n.9 (2006) (“Whether the expense or other adverse

consequences of a retaliatory investigation would ever

justify recognizing such an investigation as a distinct

constitutional violation is not before us.”); see also Rehberg

10

Defendants do not dispute that these actions were protected First

Amendment activities.

MOORE V. GARNAND 17

v. Paulk, 611 F.3d 828, 851 (11th Cir. 2010) (“[The] right to

be free from a retaliatory investigation is not clearly

established. The Supreme Court has never defined

retaliatory investigation, standing alone, as a constitutional

tort . . . .”).

Plaintiffs rely on two Ninth Circuit cases, but neither

held that a retaliatory investigation by itself was

unconstitutional. In Bruce v. Ylst, 351 F.3d 1283 (9th Cir.

2003), plaintiff “[a]llege[d] that prison officials violated his

First Amendment right to file prison grievances when they

validated him as a [gang] member in retaliation for his filing

of several grievances.” Id. at 1288. Bruce is inapt because

the alleged retaliatory action was the validation of the

plaintiff as a gang member, not any investigations conducted

by the prison officials. See id. White v. Lee, 227 F.3d 1214

(9th Cir. 2000), did involve a retaliatory investigation. Id. at

1226. But in White, the government’s investigation was

materially different than the investigation here. The officials

in White questioned plaintiffs under threat of subpoena,

directed them to produce documents, told plaintiffs and

reported to a newspaper that plaintiffs had violated the Fair

Housing Act, and “advised [plaintiffs] to accept a

‘conciliation proposal’ that required them to cease all

litigation and the distribution of ‘discriminatory’ newsletters

and flyers.” Id. at 1220. We held that, considering the

entirety of the officials’ acts, they had violated plaintiffs’

First Amendment rights. Id. at 1238 (“The scope and

manner of the investigation violated the plaintiffs’ First

Amendment rights.” (emphasis added)).

Defendants’ actions (even as Plaintiffs allege them and

even disregarding the uncontested facts as to the arsons

18 MOORE V. GARNAND

themselves11)—unjustifiably pursuing a criminal

investigation, interviewing two witnesses, and attempting to

induce the IRS to open an investigation—were materially

different from the acts at issue in White. Other than perhaps

putting Defendants on notice at a very high level of

generality that their actions might raise First Amendment

concerns, White could not have put Defendants on sufficient

notice that their actions would violate Plaintiffs’ First

Amendment rights. See al-Kidd, 563 U.S. at 741.

Although it is Plaintiffs’ burden to identify the clearly

established law, see Ballentine, 28 F.4th at 61, we were also

unable to find any binding precedent that clearly established

a First Amendment violation based on a retaliatory

investigation. See, e.g., Twitter, Inc. v. Paxton, No. 21-CV-

01644-MMC, 2021 WL 1893140, at *3 (N.D. Cal. May 11,

2021) (noting that “Twitter cites no case holding the

institution of an allegedly retaliatory investigation, by itself,

constitutes a cognizable adverse action,” and that the issue

has not been decided by the Ninth Circuit). Our review of

nonbinding authority also supports that it was not clearly

established that a retaliatory investigation violates the First

Amendment. See Lincoln v. Maketa, 880 F.3d 533, 539–41

(10th Cir. 2018) (holding that a criminal investigation into

plaintiff and his children was not an adverse employment

action supporting a First Amendment retaliation claim

because it was not clearly established that a “retaliatory

criminal investigation entails a constitutional violation,” id.

at 540)12; Rehberg, 611 F.3d at 851 (“[The] right to be free

11

And even further disregarding that Mr. Moore was later indicted for

the arsons.

12

Lincoln, 880 F.3d at 540, noted that in Coszalter v. City of Salem, 320

F.3d 968 (9th Cir. 2003), we had suggested that a retaliatory criminal

MOORE V. GARNAND 19

from a retaliatory investigation is not clearly established.”);

Colson v. Grohman, 174 F.3d 498, 513 (5th Cir. 1999)

(rejecting a First Amendment retaliation claim because Fifth

Circuit “caselaw unequivocally hold[s] that retaliatory

criticisms, investigations, and false accusations that do not

lead to some more tangible adverse action are not actionable

under § 1983”).

Because Plaintiffs fail to meet their burden of showing

that Defendants’ investigatory conduct violated clearly

established law, Defendants are entitled to qualified

immunity on the First Amendment claim based on Plaintiffs’

lawsuits and requests for disclosures. See Ballentine, 28

F.4th at 61.

V. CONCLUSION

We have jurisdiction over the district court’s denial of

qualified immunity as to Plaintiffs’ First Amendment claims

because Defendants present a purely legal issue: whether,

taking as true Plaintiffs’ version of the facts, it was clearly

established that Defendants’ conduct violated Plaintiffs’

First Amendment rights. Plaintiffs fail to show that

Defendants’ conduct violated clearly established law. Thus,

Defendants are entitled to qualified immunity on the First

Amendment claims, and we reverse the district court’s

investigation could violate the First Amendment. Even assuming

without deciding that Coszalter suggested as such, we never held that a

retaliatory investigation alone could violate the First Amendment, as our

holding rested on much more than just a retaliatory investigation. See

id. at 976–77 (listing numerous retaliatory acts and concluding that

“[w]hen taken together, it is clear that these acts amounted to a severe

and sustained campaign of employer retaliation that was ‘reasonably

likely to deter’ plaintiffs from engaging in speech protected under the

First Amendment” (emphasis added)).

20 MOORE V. GARNAND

denial of summary judgment as to the First Amendment

claims.

REVERSED.13

13

The parties shall bear their own costs on appeal.