Federal judge rules in Nevada Highway Patrol K-9 case
A federal court in Nevada upheld a Nevada Highway Patrol officer‘s right to free speech in a ruling filed last week.
Three Nevada Highway Patrol employees, Matt Moonin, Donn Yarnall and Erik Lee, first filed a lawsuit against the department in the summer of 2012, claiming NHP administrators sabotaged their K-9 drug-detection unit and retaliated against them after the press reported on alleged illegal searches.
U.S. District Court Judge Larry Hicks handed down a mixed bag of orders in a July 8 filing, ruling in favor of the state on some claims and against it on others.
At the heart of the free speech complaint is an email sent by Kevin Tice on Feb. 24, 2011 to K-9 troopers in NHP‘s southern command area. In the message, Tice forbids "direct contact between K-9 handlers or line employees with ANY non-law enforcement entity or persons for the purpose of discussing the Nevada Highway Patrol K-9 program," according to court documents. Tice, who is no longer with NHP, told employees that "All communication with ANY non-departmental and non-law enforcement entity or persons regarding (the K-9 program) WILL be expressly forwarded for approval to your chain-of-command." Emphasis using capital letters was reproduced from the court documents.
The court documents detail the allegations about the department‘s mishandling of the K-9 program. In the summer of 2011, after the K-9 program was split up, Moonin filed reports with the department saying he noticed "a marked increase in unconstitutional searches." Moonin was alarmed at the routine practice of poking holes in packages at a FedEx sorting facility to make it easier for the dogs to smell the contents.
Nothing came of Moonin‘s report.
In Sept. 2011, NHP‘s K-9 troopers, including Moonin and Lee, resigned "en masse" from the program based on objections to new training methods and alleged civil rights violations, according to court documents. Lee and Moonin were placed in lower-status positions with the highway patrol.
Because of the serious nature of the allegations, the court decided that Moonin‘s interest as a citizen in commenting on matters of public concern outweighed the state‘s interest in confidentiality as an employer. The court agreed that, in Moonin‘s case, the email was an unconstitutional prior restraint of his speech.
The court ruled in favor of the state in Lee‘s case, saying he could not make a First Amendment claim since his unit did not receive the email directly. But the court denied the stateâs motion for summary judgment in the trespassing claim made by Lee. Whether NHP is liable for damages resulting from the way it entered Leeâs backyard to reclaim an agency-owned dog kennel will have to be determined by a jury.
Because he died earlier this year, Yarnall‘s case was not decided, and his family will have to decide how to proceed with his free speech claim. Hicks set a 45-day deadline for those documents to be filed.
Contact Wesley Juhl at wjuhl@reviewjournal.com and 702-383-0391. Follow @WesJuhl on Twitter.
Review-Journal story from 2012: Legal challenge questions reliability of police dogs
