Cop’s Case Stayed for Ninth Circuit

RENO, Nev. (CN) - A federal judge stayed proceedings while the Ninth Circuit reviews an immunity claim by a Nevada Highway Patrol deputy chief who was found to have violated an officer's First Amendment rights.

U.S. District Judge Larry Hicks entered summary judgment in July against Deputy Chief Kevin Tice, for telling officers not to speak publicly about unrest in the K9 program.

In the underlying lawsuit, lead plaintiff Matt Moonin claimed that during the summer of 2011, he "observed a marked increase in unconstitutional searches. In particular, Moonin was alarmed at the routine practice of poking holes in packages at a FedEx sort facility so that K9 program dogs could more easily smell the packages' contents," Hicks wrote in summarizing the case in his Sept. 9 order.

Hicks stayed the case while the Ninth Circuit reviews Tice's appeal of the ruling that Tice is not protected by qualified immunity.

A denial of qualified immunity is "immediately appealable" and automatically stays the action while the appeal is decided, Hicks wrote.

But because it's not apparent he will win, Moonin's motion for attorney's fees is premature, Hicks added.

Tice in May presented Moonin with an offer of judgment for $74,999.99, but Moonin never responded, Hicks wrote.

Though the court in July granted summary judgment against Tice for First Amendment rights violations, Moonin isn't entitled to attorney's fees until damages are determined, Hicks wrote.

Officers Moonin, Donn Yarnall and Erik Lee sued Nevada, its Highway Patrol, Las Vegas Metropolitan Police Department and other people and entities on June 26, 2012, claiming they conspired to throttle and sought to eliminate a new K9 drug interdiction program that some police brass believed a waste of money and resources.

Yarnall, who died this year, was the architect of the program, while Moonin and Lee were officers assigned to it.

The officers claimed the K9 program initially flourished but that their superiors undermined the high standards set by Yarnall and filed false complaints against Yarnall and Lee, removed files from the K9 program offices, denied dog food and other basic needs and barred dogs from the K9 program offices.

They claimed that as time went on both dogs and men were given substandard training and lax supervision.

Lee and Moonin claimed that after they reported their concerns to department officials in 2009, they were subjected to retaliation, including denial of overtime and abuse from fellow officers.

The issue came to a head in early 2011, when television stations began investigating complaints about the K9 program, interviewing state and Las Vegas police officials. Moonin said the rumor in the department was that he had tipped the media, but he denied it.

On Feb. 24, 2011, 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 or face repercussions for insubordination.

The plaintiffs claimed Tice's email was unconstitutional prior restraint of their free speech rights.

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