Moonin v. Tice
The Matter.
First Amendment prior-restraint victory on behalf of three Nevada Highway Patrol K9 troopers. The Ninth Circuit affirmed denial of qualified immunity; the decision now appears in the circuit’s model jury instructions.
What the record shows.
- ¶ 01
Nevada Highway Patrol K9 troopers Matt Moonin, Donn Yarnall, and Erik Lee retained Mr. McKenna after Major Kevin Tice issued an email directive that banned K9 officers from discussing the K9 program with anyone outside the department. The directive was a categorical prohibition — neither tethered to any specific operational concern nor limited to confidential information.
- ¶ 02
Mr. McKenna filed a thirteen-count federal complaint in the District of Nevada. The core theory was First Amendment prior restraint, with pendent claims for retaliation, Fourth Amendment violations, civil RICO, conspiracy under 42 U.S.C. § 1985(1), defamation, and fraud. In 2015, District Judge Larry Hicks denied Major Tice qualified immunity, finding that the email was an unconstitutional prior restraint on public-employee speech.
- ¶ 03
The defendants appealed. Mr. McKenna argued the Ninth Circuit appeal in 2017 before a panel of Circuit Judges Berzon and Murguia, joined by District Judge Frederic Block sitting by designation. The panel affirmed, holding that a “robust consensus” of prior Ninth Circuit cases had clearly established that a public employer may not impose a categorical ban on employee speech about a government program — whether fact or opinion, and whether or not the speech is disruptive. Moonin v. Tice, 868 F.3d 853 (9th Cir. 2017).
The path through the courts.
- STEP 019th Cir.Moonin v. Tice, 868 F.3d 853 (9th Cir. 2017)Reported
- STEP 02District960 F. Supp. 2d 1130 (D. Nev. 2013)Reported
The opinion now appears in the Ninth Circuit’s model jury instructions, reflecting its continuing doctrinal weight in public-employee speech cases.
Lead / Counsel of record — Kenneth J. McKenna, Nevada Bar № 1676
This matter sits within Mr. McKenna’s Trial Counsel for Attorneys practice.