Is Sylvester entitled to a motion for certifying that his actions constitute a First Amendment violation?

Sylvester also argues that, even if his alleged actions constitute a First Amendment violation, he is entitled to qualified immunity. He asserts that the First Amendment right at issue was not "clearly established and stated with particularity" when, in early 1996, the handbills were removed.¹⁴ Blueford v. Prunty, 108 F.3d 251, 253 (9th Cir. 1997).

"Precedent directly on point is not necessary to demonstrate" that a right is clearly established. 108 F.3d at 255. Rather, if "the unlawfulness [is] apparent in light of preexisting law," then the standard is met. Id. at 254. In addition, even if there is no closely analogous case law, a right can be clearly established on the basis of "common sense." DeBoer v. Pennington, 206 F.3d 857, 865 (9th Cir. 2000), petition for cert. filed, (U.S. Aug. 7, 2000) (No. 00-222).