The opinion
FILED
NOT FOR PUBLICATION
NOV 4 2024
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOY HO SCHERER, No. 23-55603
Plaintiff-Appellant, D.C. No.
8:22-cv-01931-JVS-ADS
v.
CITY OF LOS ANGELES; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted October 25, 2024
Pasadena, California
Before: IKUTA and BRESS, Circuit Judges, and BASTIAN,** District Judge.
Plaintiff Joy Ho Scherer appeals from the district court’s order granting a
motion to dismiss under Rule 12(b)(6) in favor of the City of Los Angeles and Los
Angeles Police Department officers (Wessam Ismail, Nelson Martinez, Jr., and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stanley A. Bastian, Chief United States District Judge
for the Eastern District of Washington, sitting by designation.
unknown Doe officers). We have jurisdiction under 28 U.S.C. § 1291, and we
reverse.
The district court erred in dismissing Scherer’s 42 U.S.C. § 1983 claim for
First Amendment retaliation.1 Taking the facts in the light most favorable to
Scherer, Officer Martinez’s statement to Scherer that her attacker, Max Bravo, had
the right to press charges; that if Bravo pressed charges “you’re going to go [to
jail]” right now; and “[t]hat’s how private persons arrest works” would have
chilled a person of ordinary firmness from exercising the First Amendment right to
press charges. Contrary to the district court’s conclusion, Scherer has plausibly
alleged that Martinez’s statement that Scherer would go to jail too was a threat, not
a statement of law, given that Bravo had already told Officer Martinez that he did
not want to press charges, and that California law requires officers to discourage
the dominant aggressor (in this case, Bravo) from pressing charges, even if he had
expressed a wish to do so. Cal. Penal Code § 13701(b).
Because the district court dismissed the claim based on the lack of any
constitutional violation, it did not address qualified immunity. On remand, the
district court may address, in the first instance, whether the officers are entitled to
1
Scherer does not challenge the district court’s dismissal of her substantive
due process and Monell claims.
2
qualified immunity because Scherer failed to allege a violation of a “clearly
established” constitutional right. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
REVERSED and REMANDED.
3