RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 17a0211p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

JOHN MOODY; DONALD HARMON; RICK RAY; WALLY 

MCILLMURRAY, 

Plaintiffs-Appellees/Cross-Appellants, 

v. 

MICHIGAN GAMING CONTROL BOARD, et al., 

Defendants, 

AL ERNST;JOHN LESSNAU, 

Defendants-Appellants/Cross-Appellees. 

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Nos. 16-2244/2369 

Appeal from the United States District Court 

for the Eastern District of Michigan at Flint. 

No. 4:12-cv-13593—Gershwin A. Drain, District Judge. 

Argued: July 26, 2017 

Decided and Filed: September 11, 2017 

Before: COLE, Chief Judge; BATCHELDER and MOORE, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Jason A. Geissler, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, 

Lansing, Michigan, for Appellants/Cross-Appellees. Hugh M. Davis, CONSTITUTIONAL 

LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for Appellees/Cross-Appellants. ON 

BRIEF: Jason A. Geissler, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, 

Michigan, for Appellants/Cross-Appellees. Hugh M. Davis, Cynthia Heenan, Scott Mackela, 

CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for 

Appellees/Cross-Appellants. 

>
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 2

 MOORE, J., delivered the opinion of the court in which COLE, C.J., joined, and 

BATCHELDER, J., joined in part. BATCHELDER, J. (pp. 13–22), delivered a separate opinion 

concurring in part and dissenting in part. 

_________________ 

OPINION 

_________________ 

 KAREN NELSON MOORE, Circuit Judge. In 2010, the Michigan Gaming Control 

Board (“MGCB”), a state entity that regulates horse racing, held a hearing to determine whether 

certain drivers were involved in an illegal race-fixing scheme. At the hearing, Plaintiffs John 

Moody, Donald Harmon, Rick Ray, and Wally McIllmurray, Jr. (“Plaintiffs”), four drivers 

licensed by the MGCB, declined to answer questions and invoked their Fifth Amendment right 

against self-incrimination. The MGCB later suspended the Plaintiffs’ licenses and issued orders 

excluding them from the race tracks, citing the Plaintiffs’ refusal to cooperate at the hearing. 

The Plaintiffs filed suit, alleging violations of their procedural due process and Fifth Amendment 

rights. In these appeals, which revisit issues considered by a prior panel of this court, the 

Defendants challenge the district court’s denial of qualified immunity on the procedural due 

process claim, and the Plaintiffs challenge the district court’s grant of qualified immunity on the 

Fifth Amendment claim. 

 For the following reasons, we AFFIRM the denial of qualified immunity on the 

procedural due process claim, REVERSE the grant of qualified immunity on the Fifth 

Amendment claim, and REMAND the case for further proceedings. 

I. BACKGROUND 

Upon receiving an anonymous tip, the MGCB began to investigate allegations of a racefixing scheme involving certain gamblers and harness-racing drivers. As part of this 

investigation, the MGCB held an administrative investigatory hearing on May 20, 2010, with the 

Plaintiffs, all of whom were licensed by the MGCB as harness drivers. The hearing, referred to 

by some as the “Steward’s hearing,” was held to determine whether these drivers were involved 

in the scheme. At the hearing, all four drivers declined to answer questions and invoked their 

Fifth Amendment right against self-incrimination. R. 18–5 (Moody MGCB Hr’g Tr. at 5–8) 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 3

(Page ID #197–200); R. 18–6 (Harmon MGCB Hr’g Tr. at 5–13) (Page ID #212–20); R. 18–7 

(McIllmurray MGCB Hr’g Tr. at 6–10) (Page ID #230–34); R. 18–8 (Ray MGCB Hr’g Tr. at 7–

11) (Page ID #245–49). The next day, the MGCB suspended the Plaintiffs’ licenses, citing their 

failure “to comply with the conditions precedent for occupational licensing in Michigan as 

outlined in R431.1035.” R. 18–9 (Stewards Hr’g Ruling) (Page ID #254–57). This rule provides 

that an applicant for an occupational license must “cooperate in every way . . . during the 

conduct of an investigation, including responding correctly, to the best of his or her knowledge, 

to all questions pertaining to racing matters.” Mich. Admin. Code R. 431.1035. Later, on 

November 30, 2010, the MGCB issued orders of exclusion banning the drivers from all state race 

tracks, again citing their “‘failure to cooperate’ at the time of the Steward’s Hearing in May 

2010.” R. 85–16 (Ernst Letters) (Page ID #1377–79). The Plaintiffs’ applications for 2011, 

2012, and 2013 licenses were also denied. 

In August 2012, the Plaintiffs brought suit under 42 U.S.C. § 1983, claiming violations of 

their procedural due process and Fifth Amendment rights. On November 27, 2013, the district 

court held that the Defendants were entitled to qualified immunity because the Plaintiffs had 

failed to identify a constitutional violation. It therefore granted the Defendants’ motion for 

summary judgment and denied the Plaintiffs’ motion for partial summary judgment. On appeal, 

we affirmed in part and reversed in part the district court’s holding with respect to Plaintiffs’ 

procedural due process claim, and held that although Plaintiffs had received due process with 

respect to their license suspensions, there was a disputed issue of material fact as to whether the 

Plaintiffs were denied due process on their exclusion from the race tracks. Moody v. Michigan 

Gaming Control Bd., 790 F.3d 669, 680 (6th Cir. 2015) (“Moody I”). Specifically, we found that 

the Plaintiffs were due a post-exclusion hearing, which they did not receive, and that there was a 

genuine dispute as to whether or not Plaintiffs were themselves at fault for failing to request a 

hearing. Id. at 679–80. As to the Plaintiffs’ Fifth Amendment claim, we reversed the district 

court’s holding that Plaintiffs had failed to identify a constitutional violation. We held that the 

“Constitution entitled the harness drivers to refuse to answer potentially self-incriminating 

questions, unless the state immunized them from prosecution. To punish the drivers violated the 

Constitution, and both suspension and exclusion constitute punishment.” Id. at 673. We 

therefore found that the Defendants had violated the drivers’ constitutional rights against self-
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 4

incrimination, and remanded to the district court to consider the question of whether that right 

was clearly established at the time of the violation. Id.

On remand, the parties filed renewed cross-motions for summary judgment. The 

Defendants argued that we erred in concluding that the Plaintiffs did not receive a post-exclusion 

hearing, because Plaintiffs received a hearing on April 25, 2013, two years before our initial 

remand. The Plaintiffs, in response, conceded that a post-exclusion hearing took place on that 

date, but argued that the hearing, which occurred two years after the exclusion orders were 

issued, was not timely. On the Fifth Amendment claim, the Defendants argued, once again, that 

the Plaintiffs had failed to identify a constitutional violation, and that the right to be offered 

immunity against self-incrimination was not clearly established at the time of the violation. 

The district court held that the Defendants’ argument with respect to the April 2013 

hearing was irrelevant to the question on remand, and re-emphasized our holding that there was 

“a dispute of fact regarding whether the 2011 license applications constituted hearing requests.” 

R. 172 (Dist. Ct. Order at 12) (Page ID #4144). It concluded once again that neither party was 

entitled to summary judgment on the procedural due process claim. The district court also held 

that the Fifth Amendment violation identified in Moody I was not clearly established at the time 

of the violation, because “before the Sixth Circuit’s decision in Moody [I], a reasonable officer 

could have believed, as the [district c]ourt did, that they were not required under the Fifth 

Amendment to offer immunity.” Id. at 10 (Page ID #4142). It held that the Defendants were 

entitled to qualified immunity on the Fifth Amendment claims, and dismissed those Defendants 

whose personal involvement extended only to that claim. Id. at 10, 14 (Page ID #4142, 4146). 

 Both parties now appeal. Defendants argue that the district court erred in denying their 

motion for summary judgment, because Plaintiffs now concede that they did receive a postexclusion hearing. The Plaintiffs argue that they were nonetheless denied due process because 

that hearing was not timely, and the Plaintiffs challenge the district court’s holding that the Fifth 

Amendment right identified in the initial appeal was not clearly established at the time of the 

violation. 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 5

II. ANALYSIS 

A. Standard of Review 

We review de novo a district court’s grant or denial of summary judgment on the basis of 

qualified immunity. United States v. Ohio, 787 F.3d 350, 353 (6th Cir. 2015). Summary 

judgment is proper where “there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In considering a motion for 

summary judgment, we must draw all inferences “in the light most favorable to the party 

opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986) (internal quotation marks omitted). 

Where a defendant raises the defense of qualified immunity, “it is the plaintiff’s burden 

to show that the defendants are not entitled to qualified immunity.” Burgess v. Fischer, 735 F.3d 

462, 472 (6th Cir. 2013). To determine whether qualified immunity applies, this court applies a 

two-part test and asks: (1) whether the officer violated a constitutional right, and (2) whether 

that constitutional right was clearly established such that “a reasonable official would understand 

that what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 201–02 (2001) (internal 

quotation marks omitted), abrogated in part by Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

Courts have discretion to decide which of the two parts to apply first. Pearson, 555 U.S. at 227. 

B. Defendants’ Appeal 

1. Law-Of-The-Case Doctrine 

Before reaching the merits of the Defendants’ appeal, it is necessary that we determine 

whether review of the procedural due process claims is barred by the law-of-the-case doctrine. 

“The law-of-the-case doctrine precludes reconsideration of issues decided at an earlier stage of 

the case.” Caldwell v. City of Louisville, 200 F. App’x 430, 433 (6th Cir. 2006). The doctrine 

applies only to issues that were actually decided, whether explicitly or by necessary implication. 

Id. (citing McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 513 n.3 (6th Cir. 2000). It 

does not extend to issues that should have been raised, or to issues not “fully briefed [or] 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 6

squarely decided in an earlier appeal.” Burley v. Gagacki, 834 F.3d 606, 618 (6th Cir. 2016) 

(internal quotation marks omitted). 

“Importantly, however, [the law-of-the-case] doctrine is intended to enforce a district 

court’s adherence to an appellate court’s judgment, and so is applied only loosely when we 

reconsider our own decisions.” Miller v. Maddox, --- F.3d ---, No. 17-5021, 2017 WL 3298570, 

at *2 (6th Cir. Aug. 3, 2017). Therefore, while we generally will not, for prudential reasons, 

consider issues addressed by a prior panel, the doctrine does not limit our power of review, and 

we may, in exceptional circumstances, deem it necessary to depart from a prior ruling. 

Musacchio v. United States, 136 S. Ct. 709, 716 (2016); see also McKenzie, 219 F.3d at 513 n.3 

(noting that the “‘law of the case’ doctrine is ‘directed to a court’s common sense’ and is not an 

‘inexorable command’”). We have recognized three exceptional circumstances under which we 

will consider a previously decided issue: “(1) where substantially different evidence is raised on 

subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling 

authority; or (3) where a decision is clearly erroneous and would work a manifest injustice.” 

United States v. Rayborn, 495 F.3d 328, 337 (6th Cir. 2007) (quoting Westside Mothers v. 

Olszewski, 454 F.3d 532, 538 (6th Cir. 2006)). 

Here, the Defendants appeal the district court’s holding that they were not entitled to 

qualified immunity on the procedural due process claim. As the district court rightly pointed out, 

this issue was addressed by a prior panel of this court in Moody I, which determined that (1) it 

was clearly established that the Plaintiffs were entitled to a post-exclusion hearing, (2) the 

Plaintiffs had not received such hearings, and (3) the Defendants therefore were not entitled to 

qualified immunity on that claim. Moody I, 790 F.3d at 679. Although the district court did not 

err in holding that Moody I had addressed these issues, we find that the parties have identified 

exceptional circumstances that justify our reconsideration of this issue now on appeal. 

Specifically, the parties now agree that the Plaintiffs actually received a hearing on their 

exclusions on April 25, 2013 in response to a request made on November 27, 2012. R. 144 

(Defs. Mot. Summ. J. at 20–21) (Page ID #3717–18); R. 156 (Pls. Resp. Defs. Mot. Summ. J. at 

9) (Page ID #4035). Because this is a new fact that was not before the prior panel, we believe it 

is prudent to revisit the question of whether or not a constitutional violation took place. 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 7

It is worth noting that the circumstances that justify reconsideration of this issue are 

indeed extraordinary. Here, despite both parties’ failure to raise these arguments in the initial 

appeal, the parties now agree that different facts govern our review. First Br. at 29; Fourth Br. at 

2. These assertions, moreover, are supported by record evidence. R. 85-14 (Nov. 27, 2012 

Letter from Counsel at 2) (Page ID #1369); R. 85-13 (Notice of Hr’g at 1) (Page ID #1364). 

Although these documents were available to the prior panel, neither document states the 

particular purpose of the hearing. That ambiguity was not resolved until the parties appeared 

before this panel for oral argument, and counsel clarified that the hearing addressed both the 

exclusion orders and the license suspensions. Therefore, although the evidence supporting these 

facts may not be “new,” the particular fact before us—that the exclusion orders were considered 

in the April 2013 hearing—is, from our perspective, a new fact. 

We will not, however, revisit our prior holding that the right at issue was clearly 

established, because the parties have put forth no extraordinary circumstances warranting our 

reconsideration of that claim. We also will not revisit the issue of Defendants Ernst and 

Lessnau’s personal involvement in violating Plaintiffs’ procedural due process rights. This claim 

was raised in the Defendants’ initial motion for summary judgment, and therefore was a part of 

the record before the Moody I panel. R. 144 (Defs. Mot. Summ. J. at 8) (Page ID #3705). In 

fact, as the district court pointed out on remand, the Moody I panel specifically identified Ernst 

as an individual who told Plaintiffs that they could not appeal their exclusion orders. See Moody 

I, 790 F.3d at 679–80. Because there are no new factual claims with respect to Ernst and 

Lessnau’s personal involvement, and no other extraordinary circumstances that warrant our 

consideration, we decline to reconsider whether these Defendants may be dismissed on the basis 

that they were not personally involved in the alleged violation. 

2. Procedural Due Process Claim 

The Defendants contend that they are entitled to summary judgment on the procedural 

due process claim because the Plaintiffs now admit that they received a post-exclusion hearing. 

First Br. at 29. The Plaintiffs, in response, argue that the April 25, 2013 hearing did not moot 

their claim, because the hearing was not received within fourteen days of their November 27, 

2012 request, as required by Michigan Administrative Code Rule 431.1130(3). Second Br. at 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 8

49–50. Therefore, they argue that they were deprived of a prompt post-deprivation hearing. Id.

at 50. 

Contrary to the Defendants’ assertion, due process is not satisfied merely because a 

hearing took place. Due process requires that a post-deprivation hearing take place “at a 

meaningful time and in a meaningful manner.” Goldberg v. Kelly, 397 U.S. 254, 267 (1970) 

(citation omitted). With respect to horse racing in particular, the Supreme Court has held that 

trainers, and presumably drivers, are entitled to a prompt post-deprivation hearing “that would 

proceed and be concluded without appreciable delay,” because “the consequences to a [driver] of 

even a temporary suspension can be severe.” Barry v. Barchi, 443 U.S. 55, 66 (1979). 

Here, the exclusion orders were issued on November 30, 2010, and the post-exclusion 

hearing did not take place until April 25, 2013—nearly two and one-half years after the 

deprivation took place. Under these circumstances, it is clear that the Plaintiffs have identified a 

violation of a clearly established right, and the Defendants are not entitled to summary judgment 

on the basis of qualified immunity. We therefore affirm the district court’s denial of the 

Defendants’ motion for summary judgment with respect to the procedural due process claim. 

We remand the case for further proceedings, with the understanding that going forward, it shall 

be the law of the case that the Plaintiffs received a post-exclusion hearing on April 25, 2013. 

C. Plaintiffs’ Cross-Appeal 

1. Fifth Amendment Claim 

The Plaintiffs, in their cross-appeal, challenge the district court’s holding that the Fifth 

Amendment right identified in Moody I was not clearly established at the time of the violation. 

“A right is ‘clearly established’ if ‘[t]he contours of the right [are] sufficiently clear that a 

reasonable official would understand that what he is doing violates that right.” Baynes v. 

Cleland, 799 F.3d 600, 610 (6th Cir. 2015) (quoting Anderson v. Creighton, 483 U.S. 635, 640 

(1987)), cert. denied, 136 S. Ct. 1381 (2016). “In deciding whether a right has been clearly 

established, the Supreme Court has ‘repeatedly’ warned lower courts not to define the right at ‘a 

high level of generality.’” Hagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 508 (6th Cir. 

2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). However, we have also 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 9

recognized that “[a] court need not have previously held illegal the conduct in the precise 

situation at issue because officials can still be on notice that their conduct violates established 

law even in novel factual circumstances. Sutton v. Metro. Gov’t of Nashville & Davidson Cty., 

700 F.3d 865, 876 (6th Cir. 2012) (internal quotation marks omitted). 

The right identified in Moody I is derived from the Fifth Amendment, which states that 

no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. 

amend. V, § 3. In Moody I, we held that the Amendment “entitled the harness drivers to refuse 

to answer potentially self-incriminating questions, unless the state immunized them from 

prosecution. To punish the drivers violated the Constitution, and both suspension and exclusion 

constitute punishment.” Moody I, 790 F.3d at 673. The right at issue, therefore, was the right to 

refuse to answer self-incriminating questions without threat of punishment, unless immunity was 

offered. The Defendants argue that the Moody I panel announced “a new requirement that the 

government expressly offer immunity to state licensees before sanctioning them for refusing to 

answer regulatory-related questions.” Third Br. at 25. Their argument is belied by precedent. In 

Lefkowitz v. Turley, 414 U.S. 70, 78 (1973), the Supreme Court held that “a witness protected by 

the [Fifth Amendment] privilege may rightfully refuse to answer [potentially self-incriminating 

questions from his employer] unless and until he is protected at least against the use of his 

compelled answers and evidence derived therefrom in any subsequent criminal case in which he 

is a defendant.” In other words, “if answers are to be required in such circumstances[,] States 

must offer to the witness whatever immunity is required to supplant the privilege and may not 

insist that the employee or contractor waive such immunity.” Id. at 84–85 (emphasis added). 

That is precisely the right announced in Moody I. Therefore, the right was clearly established. 

The Defendants nonetheless argue that prior to Moody I, an employer was not required to 

offer immunity because an employee could presume his statements were automatically immune 

under Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, the Supreme Court held that 

where a public employer “use[s] the threat of discharge to secure incriminatory evidence against 

an employee,” the Fifth Amendment prohibits the use of such incriminating evidence in a 

subsequent criminal proceeding. 385 U.S. at 499–500. We do not find the Defendants’ 

argument persuasive. First, prior cases indicate that Garrity immunity may not necessarily be 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 10

coextensive with “whatever immunity is required to supplant the privilege.” Turley, 414 U.S. at 

84–85. For example, as noted in Kastigar v. United States, 406 U.S. 441, 458 (1972), the Fifth 

Amendment protects against the use and the derivative use of coerced statements at trial. That 

grant of immunity exceeds the grant articulated in Garrity. 

Second, the Defendants’ argument undermines the clear language of subsequent cases 

that articulate the specific right at issue here. The Supreme Court in Turley articulated a separate 

Fifth Amendment right that applies when potentially self-incriminating questions are posed in a 

public-employment setting. Turley, 414 U.S. at 78. Although that right is not absolute, it is clear 

that under some circumstances a public employee must be able to invoke that privilege without 

fear of punishment. See id. at 77 (holding that the Fifth Amendment “not only protects the 

individual against being involuntarily called as a witness against himself in a criminal 

prosecution but also privileges him not to answer official questions put to him in any other 

proceeding, civil or criminal, formal or informal, where the answers might incriminate him in 

future criminal proceedings”); Gardner v. Broderick, 392 U.S. 273, 276 (1968) (“Our decisions 

establish beyond dispute the breadth of the privilege to refuse to respond to questions when the 

result may be self-incriminatory, and the need to fully implement its guaranty”). The key 

question, for our purposes, is when that privilege can be invoked. Turley provides us with an 

answer, and instructs that the privilege may be enjoyed “unless and until he is protected at least 

against the use of his compelled answers and evidence derived therefrom in any subsequent 

criminal case in which he is a defendant.” 414 U.S. at 78. To assume, as the Defendants would 

have us do, that immunity applied automatically is to say that there is no right at all. 

Moreover, the Defendants fail to recognize that the right articulated in Turley is separate 

and distinct from the one articulated in Garrity, one which carries separate entitlements, protects 

against different infringements by the government, and, importantly, one whose contours are 

shaped by very different considerations. Immunity under Garrity has direct and obvious 

criminal implications that require the right to be absolute. See Garrity, 385 U.S. at 500 (“There 

are rights of constitutional stature whose exercise a State may not condition by the exaction of a 

price.”) Although the right at issue here and in Turley involves potential criminal consequences, 

it is more directly related to an individual’s interest in public employment, which must be 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 11

balanced against the public interest in obtaining information to “to assure the effective 

functioning of government.” Turley, 414 U.S. at 81 (citation omitted). These countervailing 

considerations color the contours of the right and impose a different set of procedural steps that 

are intended both to preserve the privilege against self-incrimination, but also to allow the state 

to compel testimony to ensure the effective administration of government. See Kastigar, 406 

U.S. at 444–45. As Turley makes clear, making an offer of immunity is one such procedural 

step. Turley, 414 U.S. at 84–85. 

Garrity immunity prohibits the use of coerced statements in criminal proceedings, but it 

does not protect against the act of coercion itself. The Supreme Court in Turley, Gardner, and 

Kastigar recognized that the act of coercion itself is a public action that threatens the Fifth 

Amendment in a markedly different way than does the use of a coerced statement in a criminal 

proceeding. Therefore, “a State may not impose substantial penalties because a witness elects to 

exercise his Fifth Amendment right not to give incriminating testimony against himself.” 

Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977). Given the Supreme Court’s recognition 

that the privilege against self-incrimination “can be asserted in any proceeding, civil or criminal, 

administrative or judicial, investigatory or adjudicatory,” Kastigar, 406 U.S. at 444, the Court 

has recognized a separate right for individuals to refuse to answer in civil proceedings, the 

contours of which are separate from the immunity articulated in Garrity. 

Finally, we reject the Defendants’ argument that the circumstances here are 

distinguishable from cases where employees were explicitly asked to waive their right to 

immunity. See Turley, 414 U.S. at 82; Cunningham, 431 U.S. at 805–06. The record 

demonstrates that the Plaintiffs were suspended and excluded solely on the basis of Michigan 

Administrative Code Rule 431.1035, which requires an applicant for an occupational license to 

cooperate in every way during the course of an investigation, including by responding to all 

questions. See R. 18–9 (Stewards Hr’g Ruling) (Page ID #254–57); R. 85–16 (Ernst Letters) 

(Page ID #1377–79); Mich. Admin. Code R. 431.1035. These circumstances are substantially 

similar to the circumstances in Turley, where state law provided that a failure to cooperate or 

answer questions was grounds for disqualifying a state contractor’s contracts. Turley, 414 U.S. 

at 71, 82. Indeed, the Court in Turley recognized that “[t]he waiver sought by the State, under 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 12

threat of loss of contracts, would have been no less compelled than a direct request for the 

testimony without resort to the waiver device.” Id. at 82. Here, the administrative rule, as 

applied, left Plaintiffs with only two choices: to waive their privilege and cooperate with an 

investigation, or to be punished. The Supreme Court has clearly held this choice to be coercion, 

which constitutes an illegal action until an offer of immunity is made. 

Under the conditions articulated with respect to the particular right at issue, a public 

employee “may rightfully refuse to answer unless and until he is protected at least against the use 

of his compelled answers.” Turley, 414 U.S. at 78 (emphasis added). The Supreme Court has 

made clear that if a state wishes to punish an employee for invoking that right, “States must offer 

to the witness whatever immunity is required to supplant the privilege and may not insist that the 

employee or contractor waive such immunity.” Id. at 85. We therefore reverse the district 

court’s grant of qualified immunity on the Fifth Amendment claim, and hold that the right 

articulated in Moody I was clearly established at the time of the violation. 

2. Motion to Reopen Discovery and Amend the Complaint 

The Plaintiffs also appeal from the district court’s denial of their motion to reopen 

discovery, motion to compel discovery, and motion to amend the complaint. These claims are 

not properly before us. The district court has not entered a final judgment in this case, nor has it 

certified any of these claims for immediate appeal pursuant to Federal Rule of Civil Procedure 

54(b). These claims therefore exceed our jurisdiction. 

III. CONCLUSION 

Based on the foregoing, we AFFIRM the denial of qualified immunity on the procedural due 

process claim, REVERSE the grant of qualified immunity on the Fifth Amendment claim, and 

REMAND the case for further proceedings. 

 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 13

________________________________________________________ 

CONCURRING IN PART AND DISSENTING IN PART 

________________________________________________________ 

ALICE M. BATCHELDER, Circuit Judge, concurring in part and dissenting in part. I 

agree with the majority—albeit for different reasons—that the district court did not err by 

holding that there is a material dispute of fact over whether there was a constitutional violation 

on the drivers’ procedural due process claim. I part ways with the majority on its analysis of the 

Fifth Amendment claim and would affirm the district court’s grant of qualified immunity. 

Accordingly, I respectfully concur in part and dissent in part. 

I. 

 I begin with the majority’s treatment of the drivers’ post-exclusion procedural due 

process claim. On a motion for summary judgment, a plaintiff who brings a § 1983 action 

against a government official bears the burden of overcoming the qualified immunity defense by 

showing that (1) the defendant violated a constitutional right and (2) that right was clearly 

established. Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680–81 (6th Cir. 2013). When we 

previously resolved an appeal in this case, we held that the drivers were “due the process of ‘a 

prompt postsuspension hearing,’” which the drivers had received. Moody v. Mich. Gaming 

Control Bd., 790 F.3d 669, 679 (6th Cir. 2015) (“Moody I”) (quoting Barry v. Barchi, 443 U.S. 

55, 66 (1979)). We also held that the drivers had the same right following their exclusions, 

applying the principles that a person is due “some kind of hearing . . . at some time before . . . 

[being] finally deprived of his property interests” and that “the suspension of a jockey’s license 

entitles him to a post-deprivation hearing.” Id. at 677, 679 (extending Wolff v. McDonnell, 

418 U.S. 539, 557–58 (1974), and Barry, 443 U.S. at 66, to hold that a harness driver has a right 

to post-exclusion due process). 

For purposes of my analysis, I assume that the right was clearly established.1

 Although I 

agree with the majority that the district court did not err by holding that there are material, 

 1

In Moody I, we held that a driver is “due the process of a postexclusion hearing” by extending Barry to 

cover “exclusions” in addition to “suspensions.” During that discussion, we did not discuss whether the law was 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 14

disputed facts concerning whether there was a constitutional violation here, I cannot subscribe to 

the majority’s rationale. The majority allows the drivers to modify their claim from one of nodue-process to one of untimely-due-process. It does so by relying on the law-of-the-case 

doctrine, which I find unnecessary. I would find that the drivers survive summary judgment on 

their post-exclusion due process claim on the basis of Moody I, as well as the standards 

governing summary judgment. 

The rationale of Moody I’s holding was that if the drivers had requested a post-exclusion 

hearing through their license applications, then MGCB violated the drivers’ due process right by 

denying them a post-exclusion hearing. Moody I, 790 F.3d at 679 (holding that the drivers would 

fail on this due process claim “if they had failed to request a hearing” (emphasis added)). 

Accordingly, we remanded “to the district court for further proceedings on [whether] the harness 

drivers request[ed] hearings on their exclusions.” Id. at 681. The implication in our prior 

opinion was that the drivers were obliged to adduce further evidence on remand to demonstrate 

that the drivers had, in fact, requested a hearing. Instead, confronted with the fact that they had 

received a hearing on their exclusions, the drivers changed rein to focus on whether that hearing 

was timely, while MGCB focused on whether the drivers had requested a hearing in the first 

place. 

To unravel this knot, I turn to the standards applicable in a summary judgment 

proceeding and on an appeal of such a proceeding. MGCB moved for summary judgment on 

this issue, so the drivers were obliged to produce more than a “mere scintilla of evidence” to 

 clearly established, but our remand order asked the district court to consider whether the drivers’ “due-process 

claims involve[d] clearly established rights.” 790 F.3d at 679, 681. On remand, the district court explained that 

whether the “post-exclusion due process rights were clearly established” was not up for debate, citing Michigan law. 

The majority in this appeal treats Moody I as if we held that the right was clearly established in spite of the remand 

instruction. Moody I’s analysis of the right at issue implied that the leap from suspensions to exclusions was not a 

large one. In some cases, the extension of a principle can satisfy our duty to determine whether a right was clearly 

established. Cf. Comstock v. McCrary, 273 F.3d 693, 711 (6th Cir. 2001) (“[W]e need not find a case in which ‘the 

very action in question has previously been held unlawful,’ but, ‘in the light of pre-existing law, the unlawfulness 

must be apparent.’” (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987) (brackets omitted))). I question 

whether the right was clearly established prior to Moody I, but I understand why the majority found that Moody I

determined the right was clearly established. If we were to consider this issue, I would examine the differences 

under Michigan law between suspensions and exclusions, the effect of our opinion in Rodic v. Thistledown Racing 

Club, Inc., 615 F.2d 736, 739 (6th Cir. 1980), and why the district court’s citation to state law alone is likely 

insufficient to “be the basis for a federal constitutional violation” pursuant to Smith v. City of Salem, Ohio, 378 F.3d 

566, 578 (6th Cir. 2004). 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 15

demonstrate that there was a genuine issue of material fact. Novak v. MetroHealth Med. Ctr., 

503 F.3d 572, 577 (6th Cir. 2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 

(1986)). We view the evidence and draw any inferences in the light most favorable to the 

drivers. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986)). And because MGCB appeals the denial of its qualified-immunity-based motion for 

summary judgment, we review the legal issues and decline to review the sufficiency of the 

factual allegations. DiLuzio v. Vill. Of Yorkville, Ohio, 796 F.3d 604, 609 (6th Cir. 2015). 

MGCB produced a bevy of evidence—some of which was new—to support its argument 

that it had not construed the drivers’ license applications as appeals of the exclusion orders. But 

because MGCB moved for summary judgment and now appeals the denial of its motion, we are 

less concerned with the evidence it adduced than with the drivers’ response to the motion. 

Indeed, we make no factual findings. The district court relied on Moody I to hold that there is a 

genuine dispute of material fact, so that is what we review. The onus was on the drivers to 

demonstrate more than a mere scintilla of evidence in support of their claims. On that point, they 

had formidable assistance in the form of Moody I’s pronouncement that “[a] reasonable juror 

might conclude that the MGCB should have construed those applications as requests for the 

hearings due to them under the federal constitution and state regulations” and its citation to the 

Ernst Letter. 790 F.3d at 680. On remand, the drivers relied on this explanation, as well as 

letters from Al Ernst and Erik Pedersen, both employees of MGCB, to argue that it was 

“undisputed” that the drivers requested a hearing on their exclusions. On appeal, they argue that 

it “cannot be seriously disputed that [they] requested hearings on the exclusion orders.” Without 

our prior opinion, I would find it necessary to reject these claims, because MGCB has done quite 

a bit to show that there is a dispute over this issue. But my conclusion must be tempered by our 

prior opinion. On the evidence before the court, Moody I explained that a juror could find that 

MGCB should have construed the license applications as appeals of the exclusion orders. When 

it remanded the case for further proceedings, it did not explain that the drivers necessarily had an 

obligation to adduce further evidence to establish its claim and satisfy its burden on summary 

judgment. The drivers took this to mean that we had found this to be an undisputed fact. 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 16

The drivers offered the same evidence before both the Moody I panel and us. I am 

satisfied that the drivers should survive summary judgment at this point, because we view the 

evidence and draw inferences in their favor. Although they failed to produce any additional 

evidence, Moody I’s holding gives the drivers enough of an edge to carry their burden at 

summary judgment now. MGCB’s evidence is “no bum steer”2 and may well carry the day 

before a jury. But I cannot agree that the drivers have failed to meet their burden such that we 

can condone a grant of summary judgment in favor of MGCB. 

I would affirm the denial of qualified immunity on the procedural due process claim for 

these reasons. Accordingly, I concur in the majority’s affirming the order of the district court. 

II. 

A. 

Turning to the majority’s analysis of the Fifth Amendment privilege against selfincrimination, I respectfully dissent. In a qualified immunity case, the clearly established 

analysis “must be undertaken in light of the specific context of the case, not as a broad general 

proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001), abrogated in part by Pearson v. 

Callahan, 555 U.S. 223, 236 (2009). “[W]e need not find a case in which ‘the very action in 

question has previously been held unlawful,’ but, ‘in the light of pre-existing law, the 

unlawfulness must be apparent.’” Comstock, 273 F.3d at 711 (brackets omitted) (quoting 

Anderson, 483 U.S. at 640). To evaluate the contours of the right, “we must look first to 

decisions of the Supreme Court, then to decisions of this court and other courts within our 

circuit, and finally to decisions of other circuits.” Baker v. City of Hamilton, Ohio, 471 F.3d 601, 

606 (6th Cir. 2006) (internal quotation marks omitted). Although the Supreme Court “‘does not 

require a case directly on point’ for a right to be clearly established, ‘existing precedent must 

have placed the statutory or constitutional question beyond debate.’” White v. Pauly, 137 S. Ct. 

548, 551 (2017) (per curiam) (internal brackets and quotation marks omitted) (quoting Mullenix 

v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)). 

 2

Cf. Frank Loesser, Fugue for Tinhorns, on Guys & Dolls (Original Broadway Cast Recording) (Decca 

2000) (1950). 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 17

At “a high level of generality,” id. at 552 (citation omitted), a public employee or, in this 

case, a licensee may refuse to answer questions that may tend to incriminate himself unless and 

until he has immunity from prosecution on the basis of his answers to the State’s questions. 

Moody I was correct to explain that “‘a governmental body may not require an employee to 

waive his privilege against self-incrimination as a condition to keeping his job . . . even [when] 

no criminal proceedings were ever instituted against’ an employee who was later successful in 

constitutional claims.” Moody I, 790 F.3d at 674 (alteration in original) (quoting Lingler v. 

Fechko, 312 F.3d 237, 239 (6th Cir. 2002)). 

I part ways with the majority, however, because it does not—and cannot—point to 

“clearly established law [that is] ‘particularized’ to the facts of [this] case.” White, 137 S. Ct. at 

552 (quoting Anderson, 483 U.S. at 640). The majority finds clearly established Moody I’s 

holding that MGCB violated the drivers’ rights when it “did not offer [them] immunity before 

the hearing.” Moody I, 790 F.3d at 674. Based on my understanding of the Supreme Court’s 

precedent, I cannot agree. Moreover, the majority fails to grapple with binding precedent from 

our circuit that undermines its holding that the right at issue was clearly established. See Lingler,

312 F.3d at 239–40 (holding that it was not a constitutional violation for a police chief to exact 

statements from police officers concerning their employment when they were not required to 

waive their privilege against self-incrimination and the statements were not used against them in 

a criminal proceeding). 

The majority finds that the right at issue was clearly established on the basis of Lefkowitz 

v. Turley, 414 U.S. 70, 78 (1973), which, in its view, defined “precisely the right announced in 

Moody I.” There, the Supreme Court reviewed New York state laws requiring the State to cancel 

contracts and disqualify contractors from future State contracts when a contractor “refuses to 

waive immunity or to answer questions when called to testify.” Id. at 71–72. Two licensed 

architects subject to these laws “were summoned to testify before a grand jury,” where the 

architects refused to sign waivers of immunity. The district attorney thereafter notified the 

contracting agencies of the architects’ refusal to waive their immunity, and the architects brought 

an action seeking to declare New York’s statutes unconstitutional. The Supreme Court explained 

that “a witness protected by the privilege may rightfully refuse to answer unless and until he is 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 18

protected at least against the use of his compelled answers and evidence derived therefrom in any 

subsequent criminal case in which he is a defendant.” Id. at 78 (citing Kastigar v. United States, 

406 U.S. 441 (1972)). It also analyzed the animating policy behind this line of cases: 

[The cases] ultimately rest on a reconciliation of the well-recognized policies 

behind the privilege of self-incrimination, and the need of the State, as well as the 

Federal Government, to obtain information to assure the effective functioning of 

government. Immunity is required if there is to be rational accommodation 

between the imperatives of the privilege and the legitimate demands of 

government to compel citizens to testify. 

Id. at 81 (internal citations and quotation marks omitted); see also id. at 84 (“Although due 

regard for the Fifth Amendment forbids the State to compel incriminating answers from its 

employees and contractors that may be used against them in criminal proceedings, the 

Constitution permits that very testimony to be compelled if neither it nor its fruits are available 

for such use.”). This policy ensures that governments are able to maintain integrity through 

investigations, but this comes at a cost—the government may not use testimony gathered as part 

of such an investigation to prosecute a participant in that investigation. 

It is not until the very end of Turley that one sees any language implying that the state 

must offer immunity. 

But the State may not insist that appellees waive their Fifth Amendment privilege 

against self-incrimination and consent to the use of the fruits of the interrogation 

in any later proceedings brought against them. Rather, the State must recognize 

what our cases hold: that answers elicited upon the threat of the loss of 

employment are compelled and inadmissible in evidence. Hence, if answers are 

to be required in such circumstances States must offer to the witness whatever 

immunity is required to supplant the privilege and may not insist that the 

employee or contractor waive such immunity. 

Id. at 84–85 (emphasis added). The majority emphasizes the italicized language in this 

quotation, but, in context, it is clear why it was necessary in Turley. New York had required the 

architects both to sign a waiver of their Fifth Amendment rights and to consent to the use of their 

testimony in a subsequent prosecution, and all of this occurred when the architects were before 

the grand jury. Such is not the case here. The hearing we are concerned with was before a 

racing regulator, and the drivers do not suggest that the regulator had either the power to bring a 

criminal proceeding against them or to immunize them from prosecution without the 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 19

involvement of a prosecutor. Nor have the drivers pointed to anything in the record suggesting 

that MGCB asked them to sign away their Fifth Amendment rights. Indeed, unlike the New 

York law at issue in Turley that explicitly required the architects to waive their immunity, the 

Michigan law requiring compliance with an investigation does not condition licensure on the 

waiver of the right. The drivers certainly did not lose their Fifth Amendment rights in this 

hearing, and could reasonably fear their answers might be used against them in a subsequent 

prosecution. But we have held that the mere “threat of disciplinary action” does not create an 

implicit waiver of the privilege against self-incrimination. See Lingler, 312 F.3d at 239 (“[T]he 

officers contend that a waiver of the privilege is implicit in any statement given by a public 

employee under threat of disciplinary action. The caselaw does not support this contention—and 

. . . any such waiver would have been ineffective.”). In light of these key distinctions, I cannot 

agree that Turley clearly established the right in question here. 

I acknowledge that a threat of termination can be coercion that violates the Fifth 

Amendment, see Turley, 414 U.S. at 80–83, and the drivers’ Fifth Amendment rights are not 

watered down in such a situation. See Lefkowitz v. Cunningham, 431 U.S. 801, 805–06 (1977) 

(“[O]ur cases have established that a State may not impose substantial penalties because a 

witness elects to exercise his Fifth Amendment right not to give incriminating testimony against 

himself.”). But the applicable precedent is not so simple. See id. at 806 (“Public employees may 

constitutionally be discharged for refusing to answer potentially incriminating questions 

concerning their official duties if they have not been required to surrender their constitutional 

immunity.”). It requires us to parse out the nature of the investigation and the source of the 

threat of termination. In Gardner v. Broderick, 

If appellant, a policeman, had refused to answer questions specifically, directly, 

and narrowly relating to the performance of his official duties, without being 

required to waive his immunity with respect to the use of his answers or the fruits 

thereof in a criminal prosecution of himself[,] the privilege against selfincrimination would not have been a bar to his dismissal. 

The facts of this case, however, do not present this issue. Here, petitioner was 

summoned to testify before a grand jury in an investigation of alleged criminal 

conduct. He was discharged from office, not for failure to answer relevant 

questions about his official duties, but for refusal to waive a constitutional right. 

He was dismissed for failure to relinquish the protections of the privilege against 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 20

self-incrimination. The Constitution of New York State and the City Charter both 

expressly provided that his failure to do so, as well as his failure to testify, would 

result in dismissal from his job. He was dismissed solely for his refusal to waive 

the immunity to which he is entitled if he is required to testify despite his 

constitutional privilege. 

392 U.S. 273, 278 (1968) (citations and footnote omitted). Gardner distinguishes between 

situations in which a public employee is asked questions concerning performance of his duties 

and those in which the State asks him to waive his immunity. A threat of termination in the 

former is clearly permissible, whereas immunity must accompany such a threat in the latter. 

Here, it is not clear that the Steward’s Hearing was tantamount to a proceeding before the grand 

jury in which a witness must waive the privilege against self-incrimination. The Steward’s 

Hearing addressed allegations about the drivers’ possible involvement in race-fixing, which 

directly relates to the public license they held. This falls within the first scenario contemplated 

by Gardner. As for the second Gardner scenario, there was no grand jury and there was no 

request that the drivers sign away their constitutional rights. Therefore, Gardner cannot be the 

basis for determining whether this right was clearly established, because the threat of termination 

following the Steward’s Hearing could have been permissible if it was “narrowly relating to the 

[drivers’] performance” as state licensees. Gardner, 392 U.S. at 278. 

 I cannot agree that Turley, Gardner, and like cases provide the proper lens through which 

we should assess this case for purposes of qualified immunity. These cases address different 

situations from the one here. The question, then, is whether MGCB needed to “offer” immunity 

in the form of notifying the drivers that their testimony could not be used against them. This is 

where Garrity, which is the progenitor of the other cases I have discussed so far, fits into the 

picture. 

B.

In Garrity, the Supreme Court held that a statement obtained under the coercive threat of 

removal from office violates the Constitution. See Garrity v. New Jersey, 385 U.S. 493, 499 

(1967). And in a companion case to Garrity, the Supreme Court explained the constitutional 

problem as requiring employees to choose “between surrendering their constitutional rights or 

their jobs,” but holding that employees would “subject themselves to dismissal if they refuse to 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 21

account for their performance of their public trust, after proper proceedings, which do not 

involve an attempt to coerce them to relinquish their constitutional rights.” Uniformed 

Sanitation Men Ass’n v. Comm’r of Sanitation, 392 U.S. 280, 284–85 (1968). Courts have 

construed Garrity as effectively immunizing a public employee’s or licensee’s statements from 

being used against her in a subsequent prosecution by explaining that such statements would be 

rendered inadmissible in such a prosecution.3 See Lingler, 312 F.3d at 239. In fact, even in 

Turley, the Supreme Court construed Garrity to mean that if evidence was obtained in violation 

of the principle that a party may not be forced to waive her immunity, “any answers elicited 

[would be] inadmissible.” Turley, 414 U.S. at 80–81 (citing Garrity, 385 U.S. at 499–500); cf. 

Lingler, 312 F.3d at 240 (explaining that the law does not support the contention that “a waiver 

of the privilege is implicit in any statement given by a public employee under threat of 

disciplinary action” and that under Garrity, “any such waiver would have been ineffective”). 

Interpreting Garrity to mean that coerced testimony cannot be used in a subsequent 

criminal proceeding, however, leaves an important question unanswered: is that effect of the 

Fifth Amendment privilege against self-incrimination a self-executing one, or must the public 

employer or agency affirmatively make its employee, contractor, or licensee aware of the 

immunity that Garrity affords? In Moody I, we concluded that MGCB had an affirmative 

obligation to notify the drivers that they were afforded immunity in exchange for being 

threatened with the loss of their licenses. In effect, we created a prophylactic rule, but this rule 

had not been in place before. The district court was therefore correct when it explained that 

“[w]hat was not clearly established in this Circuit [before Moody I] was whether the State was 

required to offer immunity in the first place.” Moody v. Mich. Gaming Control Bd., 202 F. Supp. 

3d 756, 760 (E.D. Mich. 2016). 

 3

The majority finds that “Garrity immunity may not necessarily be coextensive with ‘whatever immunity is 

required to supplant the [Fifth Amendment] privilege.’” Maj. Op. at 11 (quoting Turley, 414 U.S. at 84–85). It 

further notes that in Kastigar v. United States, 406 U.S. 441, 458 (1972), the Supreme Court held that the Fifth 

Amendment protects against the use and the derivative use of coerced statements at trial and that this “exceeds the 

grant articulated in Garrity.” Maj. Op. at 11. Even if they are right that Kastigar’s view of immunity exceeds 

Garrity’s, this is a question for another day. Here, we are not concerned with evidence—direct, derivative, or 

otherwise—that was presented to a jury, so we have no occasion to determine whether Garrity would render some 

such hypothetical evidence inadmissible but allow other hypothetical evidence to be admitted. 
Nos. 16-2244/2369 Moody et al. v. Mich. Gaming Control Bd. et al. Page 22

This is the proper lens through which to analyze this case, so I cannot find that the right 

had been clearly established before Moody I. The Supreme Court has not directly addressed how 

this right plays out in non-prosecutorial administrative proceedings, as I discussed above. Nor 

has our circuit addressed this previously. And looking to the other circuits demonstrates 

precisely why I cannot find that the right announced in Moody I was clearly established, for it is 

the subject of a circuit split among the various United States Courts of Appeals. See, e.g., Sher v. 

U.S. Dep’t of Veterans Affairs, 488 F.3d 489, 503 (1st Cir. 2007) (“The circuits have taken 

different approaches to the issue of whether a government employer is required to provide such 

notice to an employee.”); compare, e.g., Atwell v. Lisle Park Dist., 286 F.3d 987, 990 (7th Cir. 

2002) (“Our court has ruled in several cases that the government employer who wants to ask an 

employee potentially incriminating questions must first warn him that because of the immunity 

to which the cases entitle him, he may not refuse to answer the questions on the ground that the 

answers may incriminate him.”), with Hill v. Johnson, 160 F.3d 469, 471 (8th Cir. 1998) (“[T]he 

mere failure affirmatively to offer immunity is not an impermissible attempt to compel a waiver 

of immunity.”). This split of authority, although not acknowledged by the majority, supports my 

conclusion that the law was not clearly established prior to Moody I. To saddle MGCB with the 

unjustified holding that this issue was clearly established before Moody I runs counter to the 

qualified immunity doctrine. I therefore respectfully dissent.