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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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

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