Greg Moore v. Sean Garnand, 83 F.4th 743 (2023)

Citation: Greg Moore v. Sean Garnand, 83 F.4th 743 (2023)
Parent Document: Greg Moore v. Sean Garnand, 83 F.4th 743 (2023)
Jurisdiction: United States (federal)
Effective Date: 2023-09-29
Original Source: https://www.courtlistener.com/opinion/9429207/greg-moore-v-sean-garnand/ ↗

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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

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