v. Walsh Cty., 757 F.3d 734, 740 (8th Cir. 2014) (“[I]f the evidence in the record is sufficient to proceed with the Pickering/Connick balancing exercise, this circuit has held that ‘the asserted First Amendment right will rarely be considered clearly established.’”); Maggio v. Sipple, 211 F.3d 1346, 1354 (11th Cir. 2000) (citation omitted) (“Because the analysis of First Amendment retaliation claims under the Pickering–Connick test involve[s] legal determinations that are intensely fact-specific and do not lend themselves to clear, bright-line rules … a defendant in a First Amendment suit will only rarely be on notice that his actions are unlawful.”); DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995) (“[O]nly infrequently will it be ‘clearly established’ that a public employee’s speech on a matter of public concern is constitutionally protected, because the relevant inquiry requires a ‘particularized balancing’ that is subtle, difficult to apply, and not yet well-defined.”)
Second, Plaintiffs argue:
Defendant also cannot establish the second element of her qualified immunity defense, because Plaintiffs’ rights were clearly established at the time she issued the sanctions. Notably, Plaintiffs’ first request for reconsideration was sent into Tech before Defendant determined and implemented the sanctions. In that letter, Plaintiffs’ counsel explained in detail why the speech was protected under the First Amendment. This letter was sent on April 16th, 2021, one month before Defendant issued the sanctions.
(Doc. No. 81 at 16) (emphasis in original). However, the question is whether existing legal authority has placed the statutory or constitutional question beyond debate, and this is determined by looking first to Supreme Court precedent, then to Sixth Circuit precedent, and then to decisions of other courts of appeal. Barber v. Miller, 809 F.3d 840, 845 (6th Cir. 2015); Flint v. Kentucky Dep’t of Corr., 270 F.3d 340, 347 (6th Cir. 2001). Respectfully, a 4-page opinion letter from attorney Robert C. Bigelow hardly makes the law clearly established.
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Case 2:21-cv-00039 Document 90 Filed 12/01/22 Page 21 of 27 PageID #: 8933
