# Gibson v. City of Portland

> Court of Appeals for the Ninth Circuit · January 29, 2026

URL: https://www.frixlaw.com/law-library/cases/11247976

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** January 29, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11247976

## How later opinions describe it (automated extraction)

- acknowledging judicial efficiency concerns for class certification
- describing the similar Fourth Amendment requirement

## Opinion text

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSEPH GIBSON and RUSSEL No. 24-1663
SCHULTZ,
D.C. No. 3:23-
Plaintiffs-Appellants, cv-00833-HZ

v.
OPINION
CITY OF PORTLAND;
MULTNOMAH COUNTY;
MULTNOMAH COUNTY
DISTRICT ATTORNEY’S OFFICE;
CHRISTOPHER TRAYNOR; ROD
UNDERHILL; MIKE SCHMIDT;
BRAD KALBAUGH; and SEAN
HUGHEY,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding

Argued and Submitted April 1, 2025
Portland, Oregon

Filed January 29, 2026
2 GIBSON V. CITY OF PORTLAND

Before: Jay S. Bybee, Kenneth K. Lee, and Danielle J.
Forrest, Circuit Judges.

Opinion by Judge Bybee;
Partial Concurrence and Partial Dissent by Judge Forrest

SUMMARY *

Shotgun Pleading / Immunity

The panel affirmed in part and reversed in part the
district court’s dismissal of an action alleging that
Defendants-Appellees—Multnomah County, the City of
Portland, the Multnomah County District Attorney’s Office
(MCDA), two former district attorneys, two deputy district
attorneys, and a Portland police detective—conspired to
arrest and prosecute Plaintiffs without probable cause to
silence their disfavored right-wing political expression.
The panel held that Plaintiffs’ complaint—which set
forth detailed facts but, in its causes of action, merely alleged
the “defendants” deprived them of various constitutional and
statutory rights—failed to satisfy Federal Rule of Civil
Procedure 8(a)(2)’s requirement of “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” The panel made clear that district courts do not have
to accept shotgun pleadings. Here, among other things, the
claims contained multiple counts, were conclusory and
vague, and asserted multiple claims against multiple

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GIBSON V. CITY OF PORTLAND 3

defendants without identifying who did what. The panel
agreed with the district court that the complaint was
inadequate, and held that the district court properly
dismissed the complaint as a shotgun pleading.
Because the district court reached other issues in the
alternative, and in the interest of justice, the panel reached
Defendants’ claims as to their immunity from suit. The
panel affirmed the district court’s dismissal with prejudice
of all claims against MCDA and the prosecutor Defendants
in their official capacities on the basis of sovereign
immunity. The panel held that, on balance, it was persuaded
that MCDA is a state office, and district attorneys and deputy
district attorneys are state officers, as the Oregon courts have
concluded. The prosecutor Defendants were therefore state
actors shielded by the Eleventh Amendment and could not
be sued in their official capacity for money damages.
The panel affirmed the district court’s dismissal with
prejudice of all claims against District Attorneys Underhill
and Schmidt and Deputy District Attorneys Hughey and
Kalbaugh in their individual capacities on the basis of
absolute prosecutorial immunity to the extent they were
involved in prosecutorial activities. Regardless of the
prosecutors’ motives for charging Plaintiffs, the District
Attorney Defendants were entitled to absolute immunity for
their charging decisions, which are intimately associated
with the judicial phase of the criminal process.
The panel reversed the district court’s dismissal of the
claims against Deputy District Attorney Kalbaugh to the
extent the claims alleged he knowingly presented false
testimony to obtain an arrest warrant. Filing a probable
cause affidavit is not a prosecutorial function warranting
absolute immunity. Kalbaugh was not protected by
4 GIBSON V. CITY OF PORTLAND

qualified immunity because a state actor who presents
knowingly false testimony in support of a probable cause
determination for an arrest warrant, where the warrant would
not have issued without the false statements, violates the
Fourth Amendment, and the act’s unlawfulness was
apparent.
The panel reversed the district court’s dismissal with
prejudice of Plaintiffs’ state law claims against Multnomah
County. On remand, Plaintiffs should be permitted to
replead their claims against Multnomah County, but only to
the extent that they are not based on the acts or omissions of
MCDA or the prosecutor Defendants.
The panel held that Portland Police Detective Traynor
was absolutely immune from liability for any claim arising
from his grand jury testimony.
Accordingly, the panel affirmed in part and reversed in
part the district court’s judgment and remanded with
instructions to permit Plaintiffs to amend their complaint to
conform to Rule 8.
Concurring in part and dissenting in part, Judge Forrest
wrote that the majority erred in sua sponte adopting the
“shotgun pleading” rule. She agreed with the majority on
the following points: (1) the MCDA and the Prosecutor
Defendants have immunity except as related to the
allegations that Deputy District Attorney Brad Kalbaugh
filed a false affidavit when he applied for an arrest warrant;
(2) the claims asserted against Multnomah County, which
were all based on the immune acts of the Prosecutor
Defendants, necessarily failed; and (3) Detective Traynor
has immunity in relation to his grand-jury testimony. But
because the majority remanded several of Plaintiffs’ claims
for repleading under its new shotgun-pleading rule, it did not
GIBSON V. CITY OF PORTLAND 5

address other arguments that Defendants raised in seeking
dismissal of Plaintiffs’ complaint. Judge Forrest would
reach those additional issues.

COUNSEL

James L. Buchal (argued), Murphy & Buchal LLP, Portland,
Oregon; D. Angus Lee, Angus Lee Law Firm PLLC,
Vancouver, Washington; for Plaintiffs-Appellants.
Denis M. Vannier (argued), Senior Deputy City Attorney;
Naomi Sheffield, Counsel; Portland Office of the City
Attorney, Portland, Oregon; Kate E. Morrow (argued),
Assistant Attorney General; Robert A. Koch, Senior
Assistant Attorney General; Benjamin Gutman, Solicitor
General; Ellen F. Rosenblum, Oregon Attorney General;
Oregon Department of Justice, Salem, Oregon; B. Andrew
Jones (argued), Deputy County Attorney; Christopher A.
Gilmore, Assistant County Attorney; Multnomah County
Attorney's Office, Portland, Oregon; for Defendants-
Appellees.
6 GIBSON V. CITY OF PORTLAND

OPINION

BYBEE, Circuit Judge:

Plaintiffs-Appellants, Joseph Gibson and Russell
Schultz, appeal the district court’s dismissal of their
complaint for damages for alleged violations of their civil
rights under 42 U.S.C. §§ 1983, 1985, and 1986, and
Oregon tort law. They allege that Defendants-Appellees—
Multnomah County, the City of Portland, the Multnomah
County District Attorney’s Office (MCDA), two former
district attorneys, two deputy district attorneys, and a
Portland police detective—conspired to arrest and prosecute
them without probable cause to silence their disfavored
right-wing political expression. The district court dismissed
Plaintiffs’ claims—with prejudice against some
Defendants—on procedural and, alternatively, substantive
grounds.
This case presents complex questions of fact and law.
Those questions are made all the more complicated by
Plaintiffs’ shotgun pleading. Although the complaint set
forth detailed facts in 252 numbered paragraphs, in its causes
of action, the complaint merely alleged the “defendants”
deprived them of various constitutional and statutory rights,
leaving to Defendants, the district court, and us to decipher
the details. The complaint fails to satisfy Rule 8(a)(2)’s
requirement of “a short and plain statement of the claim
showing that the pleader is entitled to relief.” We thus agree
with the district court that the complaint was inadequate.
The district court reached other issues in the alternative, and
in the interest of justice, we reach claims by Defendants only
as to their immunity from suit. With respect to these
grounds, we affirm in part and reverse in part the judgment
GIBSON V. CITY OF PORTLAND 7

of the district court and remand with instructions to permit
Plaintiffs to amend their complaint to conform to Rule 8,
especially given the substantial legal issues and troubling
factual allegations raised by Plaintiffs.
I. FACTS AND PROCEEDINGS
The district court dismissed Plaintiffs’ complaint under
Federal Rule of Civil Procedure 12(b)(6). As such, “[w]e
accept as true all well-pleaded allegations of material fact,
and construe them in the light most favorable to the non-
moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d
992, 998 (9th Cir. 2010) (citing Manzarek v. St. Paul Fire &
Marine Ins., 519 F.3d 1025, 1031–32 (9th Cir. 2008)). Our
recitation represents Plaintiffs’ side of the case. Because
“we remand this case to the district court, both sides will
have an opportunity to prove or contest the ‘facts’ alleged in
the complaint and set forth in this opinion.” Lacey v.
Maricopa Cnty., 693 F.3d 896, 907 (9th Cir. 2012) (en banc).
A. The Facts as Alleged
According to the complaint, Gibson is the founder of a
political organization called “Patriot Prayer” that, as relevant
here, organized right-wing demonstrations in Portland,
Oregon. Schultz was a member of Patriot Prayer and
attended its demonstrations. Patriot Prayer’s primary target
was Antifa, a left-wing organization “violently opposed to
the values promoted by [Plaintiffs].” Plaintiffs allege that
the governments of the City of Portland and Multnomah
County, Oregon, sympathized with left-wing activists,
especially Antifa, but were hostile to right-wing entities like
Patriot Prayer. The then-Mayor of Portland, Ted Wheeler,
who was also the commissioner of the Portland Police
Bureau by virtue of his office, shared these prejudices.
8 GIBSON V. CITY OF PORTLAND

Portland’s bias against Plaintiffs ultimately manifested in a
conspiracy to silence them.
In May 2017, Gibson received a federal permit to hold a
political demonstration on federal property in downtown
Portland on June 4, 2017. At the end of May, Wheeler made
a public statement that the City did not want any “alt right
events” and encouraged the federal government to rescind
the permit. Wheeler added that Gibson displayed “bigotry
and hatred.” The federal government rejected the City’s
entreaty, and the demonstration occurred with persistent
violent attempts by Antifa to disrupt it. Despite the violence,
Portland police made few, if any, arrests of Antifa activists.
In February 2019, Portland’s City Council passed a
resolution condemning “a rise of white nationalist, white
supremacist and alt-right hate groups, many of which have
been emboldened by the words and actions of the current
presidential administration,” adding that “the City of
Portland will not tolerate hate in any form.” Gibson claimed
that this resolution was aimed at him and Patriot Prayer.
Gibson, however, denied that Patriot Prayer was motivated
by “bigotry and hatred” and said that the group merely
supports “patriotism, the Christian religion, and advocacy
for limited government.” The same month, Wheeler
implemented training for police officers to identify white
supremacy, and, in an interview, decried Gibson as the
“leader of a group that perpetuates hate speech and
violence.”
On May 1, 2019, Patriot Prayer appeared outside the
Cider Riot bar, Antifa’s unofficial headquarters, and a
confrontation ensued. According to the complaint, Gibson
and Schultz harmed no one and damaged no property, while
Antifa assaulted Patriot Prayer protesters. Plaintiffs
GIBSON V. CITY OF PORTLAND 9

discouraged violence despite Antifa’s aggression. Portland
police took no action to stop the fracas.
Portland police assigned Detective Christopher Traynor
to investigate the incident. From the outset, Traynor never
investigated violence by Antifa despite possessing footage
showing an Antifa activist kicking and spitting on Gibson.
Instead, Defendants conspired to focus investigative efforts
on Patriot Prayer’s role in the incident.
In July 2019, Defendants learned of a planned right-wing
event to be held in Portland on August 17 that would call on
the government to label Antifa a domestic terror
organization. Local government officials swiftly began
colluding to undermine the event. These meetings, which
included Wheeler and the district attorney’s office, sparked
a plan to arrest Plaintiffs to prevent them from joining the
protest.
Brad Kalbaugh, a deputy prosecutor with MCDA,
charged Plaintiffs on August 12, 2019, with the crime of riot
in connection with the May 1 confrontation at the Cedar Riot
bar. 1 Kalbaugh pursued these charges despite viewing
footage showing that Plaintiffs had not engaged in violence,
trespass, or threats. To charge Plaintiffs, Kalbaugh executed
two probable cause affidavits in which he swore: “Detective
Traynor clearly observed . . . individuals [including Gibson
and Schultz] taunting and physically threatening members of
the Antifa group in an effort clearly designed to provoke a
physical altercation”; “Video observed by Detective Traynor
shows Gibson repeatedly challenging members of the Antifa

1
Under Oregon law, “[a] person commits the crime of riot if while
participating with five or more other persons the person engages in
tumultuous and violent conduct and thereby intentionally or recklessly
creates a grave risk of causing public alarm.” Or. Rev. Stat. § 166.015.
10 GIBSON V. CITY OF PORTLAND

group to fight him as he says ‘do something’ and taunts them
from a sidewalk”; and “Video observed by Detective
Traynor shows Gibson physically pushing Heather Clark,
the woman who eventually was knocked unconscious by
[another member of Patriot Prayer].” According to
Plaintiffs, Kalbaugh allegedly knew his statements were
false, and he knew he could not charge Plaintiffs without
them.
On August 15, Kalbaugh presented the case against
Gibson and Schultz to a grand jury where Traynor was the
state’s primary witness. Traynor falsely testified that he had
“no doubt whatsoever” that Plaintiffs engaged in “violent
and tumultuous” acts. And despite possessing complete
footage of the incident, Kalbaugh presented misleading
excerpts. The grand jury indicted Plaintiffs, and Defendants
arrested Gibson and Schultz prior to the August 17 protest.
Wheeler later bragged that the charges against Plaintiffs
“had a chilling effect” on the event.
While the charges were pending, Mike Schmidt was
elected Multnomah County District Attorney, replacing
defendant Rod Underhill. Schmidt promptly changed
prosecutorial policy related to the crime of riot. Starting
August 11, 2020, MCDA presumptively declined to
prosecute riot cases unless the riotous conduct was
accompanied by allegations of more serious crimes. MCDA
applied the policy retroactively to all pending cases except
for that of Plaintiffs.
In September 2020, Gibson and Schultz filed a civil
action in the United States District Court for the District of
Oregon to enjoin Oregon’s prosecution of them. In an order
denying Plaintiffs’ motion for injunctive relief, United States
District Judge Karin J. Immergut wrote that “Plaintiffs make
GIBSON V. CITY OF PORTLAND 11

compelling arguments that their conduct does not rise to the
level of ‘tumultuous and violent’ conduct under O.R.S.
166.015.” Gibson v. Schmidt, 522 F. Supp. 3d 804, 818 (D.
Or. 2021). Judge Immergut added that “Defendants failed to
provide any justification for the non-prosecution policy or
explain why it was not evidence of Defendants’ bias against
Plaintiffs.” Id. at 820. Nevertheless, the district court
dismissed the case based on Younger abstention. Id. at 822
(citing Younger v. Harris, 401 U.S. 37, 46 (1971)).
Plaintiffs then moved to dismiss the criminal
proceedings in state court, but the trial court denied relief
because Kalbaugh explained that the non-prosecution policy
was not applied retroactively to other cases. Denying the
motion, the state court expressed concern about the
sufficiency of the evidence against Gibson and Schultz. The
case proceeded to trial. When the government concluded its
case in chief, the trial court directed a judgment of acquittal.
B. The Proceedings
Following their acquittal on the riot charges, Plaintiffs
brought this action in the District of Oregon. In their
amended complaint, they brought four claims against the
governmental and individual defendants: (1) violation of
§ 1983 based on deprivation of their rights to speech and
assembly, fair judicial proceedings, right to travel, equal
protection, and liberty and property by reason of defamation;
(2) violation of § 1985 for conspiracy to deprive Plaintiffs of
their constitutional rights; (3) violation of § 1986; and
(4) commission of the state torts of malicious prosecution,
false arrest and imprisonment, and negligence. Defendants
moved to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6).
12 GIBSON V. CITY OF PORTLAND

In a lengthy opinion, the district court dismissed
Plaintiffs’ action with prejudice as to certain claims that it
believed were immunity-barred and without prejudice as to
others, and it entered judgment in favor of Defendants. The
district court first addressed whether the complaint satisfied
Rule 8(a)(2). It concluded that despite Plaintiffs’ “46-page
FAC,” “Plaintiffs plead multiple claims and do not identify
which specific facts are allocated to which claim and, as
such, they fail to satisfy Rule 8(a)(2).” Notwithstanding that
conclusion, the district court addressed Defendants’
additional challenges to the complaint based on various
defenses of immunity and failure to state a claim and
concluded that Defendants would also be entitled to
judgment on those bases. Plaintiffs timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291, and we
review de novo a district court’s dismissal of a complaint for
failure to state a claim. Telesaurus VPC, LLC v. Power, 623
F.3d 998, 1003 (9th Cir. 2010).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim for relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “We construe all
factual allegations in the light most favorable to the
plaintiffs. Dismissal . . . is appropriate when the complaint
fails to state sufficient facts creating a plausible claim to
relief.” Moore v. Trader Joe’s Co., 4 F.4th 874, 880 (9th Cir.
2021) (citations omitted).
GIBSON V. CITY OF PORTLAND 13

III. DISCUSSION
The district court held for Defendants on three different
bases. First, it held that Plaintiffs’ complaint was
inadequately plead under Rule 8 and must be dismissed.
Second, it held that MCDA, District Attorneys Underhill and
Schmidt, Deputy District Attorneys Hughey and Kalbaugh,
Multnomah County, and Detective Traynor were entitled to
some kind of immunity. Third, it held that Plaintiffs’
remaining claims failed to state claims upon which relief
could be granted. For the reasons we explain below, we will
reach only the first two of these grounds. We will begin with
the immunity claims and then discuss the Rule 8 deficiencies
in the complaint.
A. Immunities from Suit
Governmental parties to a suit may claim not only
immunity from liability, but immunity from the suit itself.
See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Governmental immunity is not concerned only with the
burden of litigation on the public fisc, but also with “the
general costs of subjecting officials to the risks of trial,”
including “distraction of officials from their governmental
duties, inhibition of discretionary action, and deterrence of
able people from public service.” Harlow v. Fitzgerald, 457
U.S. 800, 816 (1982); see Kohn v. State Bar of Cal., 87 F.4th
1021, 1027 (9th Cir. 2023) (en banc). Because governmental
immunities are immunities from suit, and are “conceptually
distinct from the merits of the plaintiff’s claim,” Mitchell,
472 U.S. at 527, immunity questions should be resolved “at
the earliest possible stage in litigation” and “long before
trial,” Hunter v. Bryant, 502 U.S. 224, 227, 228 (1991) (per
curiam). See Anderson v. Creighton, 483 U.S. 635, 646 n.6
(1987) (stating that any discovery required to resolve
14 GIBSON V. CITY OF PORTLAND

questions of qualified immunity “should be tailored
specifically to th[at] question”).
Several of the Defendants in this action have asserted
absolute, qualified, or sovereign immunity. Each of these is
a defense to suit. See Puerto Rico Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (state
sovereign immunity is immunity from liability and suit);
Mitchell, 472 U.S. at 526 (same for absolute and qualified
immunity). To delay deciding these issues would dilute the
protections from suit afforded by these immunities, so before
considering any other issues in this appeal, we consider the
following claims to immunity: (1) MCDA’s claim to
sovereign immunity under the Eleventh Amendment;
(2) District Attorneys Underhill and Schmidt’s (the “District
Attorney Defendants”) claim to absolute immunity for any
liability arising out of their prosecutorial decisions;
(3) Deputy District Attorneys Hughey and Kalbaugh’s claim
to absolute or qualified immunity; (4) Multnomah County’s
claim to immunity under Oregon law; and (5) Detective
Traynor’s claim to absolute witness immunity.
1. Multnomah County District Attorney’s Office
Plaintiffs sued MCDA, District Attorneys Underhill and
Schmidt in their individual and official capacities, and
Deputy District Attorneys Hughey and Kalbaugh in their
individual and official capacities. Individual capacity civil
rights lawsuits “seek to impose individual liability upon a
government officer for actions taken under color of state
law.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Kentucky
v. Graham, 473 U.S. 159, 166 (1985)). Meanwhile,
“official-capacity suits generally represent only another way
of pleading an action against an entity of which an officer is
an agent. Suits against state officials in their official capacity
GIBSON V. CITY OF PORTLAND 15

therefore should be treated as suits against the State.” Id.
(citing Graham, 473 U.S. at 165–66) (citations omitted).
This subsection concerns only Plaintiffs’ lawsuit against
MCDA and the prosecutor Defendants in their official
capacities; Plaintiffs’ suit against the prosecutor Defendants
in their individual capacities will be addressed in the next
two subsections. Because the suit against the prosecutor
Defendants in their official capacities effectively is a suit
against MCDA, for convenience we will generally refer to
these parties as MCDA.
Plaintiffs assert that the district court erred by finding
that MCDA was entitled to sovereign immunity under the
Eleventh Amendment. We disagree and affirm the dismissal
of all claims against MCDA and Defendants Underhill,
Schmidt, Hughey, and Kalbaugh in their official capacities.
The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. The Supreme Court has interpreted the Eleventh
Amendment, absent certain exceptions not applicable here,
to prohibit suits by individuals against states. See generally
Hans v. Louisiana, 134 U.S. 1 (1890) (holding that the
Eleventh Amendment prohibits suits by citizens against their
own states as well as other states). The question in this case
is whether MCDA is a state entity or, as its name suggests,
an arm of the county. If the office is a county entity, it may
not interpose the Eleventh Amendment as a defense to suit.
N. Ins. Co. of N.Y. v. Chatham Cnty., 547 U.S. 189, 193
(2006). Whether the office is “more like a county or city
than it is like an arm of the State” turns on “the nature of the
16 GIBSON V. CITY OF PORTLAND

entity created by state law.” Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 280 (1977).
We recently clarified our approach to Eleventh
Amendment questions in our en banc decision in Kohn v.
State Bar of California. 87 F.4th at 1031.2 In that case, we
held that questions of sovereign immunity must be answered
at the entity level rather than the activity level. Id. We
recognized that in an activity-based approach, “an entity’s
immunity from suit may vary depending on the function it
performs.” Id. at 1029. By contrast, an entity-based
approach requires an up-down determination of whether the
entity predominantly exercises state authority: “an entity
either is or is not an arm of the [s]tate,” and “[t]he status of
an entity does not change from one case to the next based on
the nature of the suit, the [s]tate’s financial responsibility in
one case as compared to another, or other variable factors.”
Id. at 1031 (alterations in original) (quoting P.R. Ports Auth.
v. Fed. Mar. Comm’n, 531 F.3d 868, 873 (D.C. Cir. 2008)).
We adopted a three-part inquiry into (1) how state law
characterizes or treats the entity, (2) how the members of the
entity are appointed and removed and whether the state can
supervise the entity’s operations, and (3) the entity’s overall
effect on the state treasury. Id. at 1030. We will consider
each factor.
District Attorneys’ Offices and State Law. The Oregon
Supreme Court has declared that “[d]istrict attorneys in
Oregon are state officers.” State ex rel. Rosenblum v. Nisley,

2
We recognize that the arm-of-the-state doctrine may be further
reformed by the Supreme Court in its upcoming term. See N.J. Transit
Corp. v. Colt, No. 24-1113, 2025 WL 1829162 (U.S. July 3, 2025);
Galette v. N.J. Transit Corp., No. 24-1021, 2025 WL 1829160 (U.S. July
3, 2025).
GIBSON V. CITY OF PORTLAND 17

473 P.3d 46, 50 (Or. 2020) (en banc) (citation omitted).
Although the court’s statement in Rosenblum was clear
enough, the case arose out of “unusual” proceedings in the
Oregon Supreme Court challenging the qualifications of an
attorney to serve as district attorney. Id. at 47–48. The court
offered little analysis in support of its observation, but the
statement has a long provenance. In a prior case, State v.
Clark, the Oregon Supreme Court stated that “[d]istrict
attorneys are state officers applying statewide, not local
law.” 630 P.2d 810, 819 (Or. 1981) (footnote omitted). In
support, the court pointed to a provision in the original
Oregon Constitution that created the office of district
attorney, charged such offices with enforcing state law, and
subjected them to further instructions from the Oregon
Legislative Assembly. Id. at 819 n.15. The provision stated:

There shall be elected by districts, comprised
of one, or more counties, a sufficient number
of prosecuting Attorneys, who shall be the
law officers of the State, and of the counties
within their respective districts, and shall
perform such duties pertaining to the
administration of Law, and general police as
the Legislative Assembly may direct.

Or. Const. art. VII (orig.), § 17. Under this provision:

The district attorney [was] the law officer of
the state, within the limits of his district, with
the powers, in the absence of statutory
regulation, of the attorney general at common
law . . . . [W]hen . . . the district attorney
files a quo warranto information in a
distinctly state action, he has as much the sole
18 GIBSON V. CITY OF PORTLAND

control over it as the attorney general would
have in a like case at common law.

State v. Douglas Cnty. Rd. Co., 10 Or. 198, 201 (1882).
In 1910, Oregon amended Article VII and removed all
references to district attorneys. See Marteeny v. Brown, 517
P.3d 343, 354–57 (Or. Ct. App. 2022) (discussing the history
of Oregon district attorneys). The Oregon courts held that
“[t]he effect of [the amendment of Article VII] was to retain
the provisions of the original Article VII only until changed
by the legislature.” State v. Coleman, 886 P.2d 28, 30 (Or.
Ct. App. 1994) (citation modified); see State v. Farnham,
234 P. 806, 808 (Or. 1925). Subsequent Oregon decisions
have continued to treat district attorneys as state officers.
See Coleman, 886 P.2d at 30 (“the legislature has expressly
designated district attorneys as prosecutors ‘on behalf of the
state’” (quoting Or. Rev. Stat. § 8.660(1))); Rutherford v.
City of Klamath Falls, 526 P.2d 645, 646 (Or. Ct. App. 1974)
(“[A] post-conviction relief suit will be defended by a state
officer, either the Attorney General or the district attorney
depending upon the circumstances. There is no mention of
defense by the city attorney . . . .”), overruled on other
grounds by, Hunter v. State, 735 P.2d 1225 (Or. Ct. App.
1987).
As “the role of Oregon district attorneys is now statutory,
rather than constitutional,” Marteeny, 517 P.3d at 355, we
should also look to Oregon statutes. See generally Or. Rev.
Stat. §§ 8.610–.852 (creating and regulating the office of
district attorneys). Not surprisingly, the statutes authorize
district attorneys to enforce both state and county law.
Oregon law provides that the district attorney is the “public
prosecutor [in the county] and has the authority to appear and
prosecute violations of the charter and ordinances of any city
GIBSON V. CITY OF PORTLAND 19

[over which the county circuit court has jurisdiction].” Id.
§ 8.650. The district attorney shall “advise the county court
and other county officers on all legal questions that may
arise” and defend the county and any county officers and
employees sued for “act[s] and omission[s] in the
performance of official duty.” Id. at § 8.690. On the other
hand, the statutes provide that “[t]he district attorney shall
attend the terms of all courts having jurisdiction of public
offenses within the district attorney’s county,
and . . . conduct, on behalf of the state, all prosecutions for
such offenses therein.” Id. § 8.660(1). Similarly, “[t]he
district attorney shall prosecute for all penalties and
forfeitures to the state that may be incurred in the county of
the district attorney . . . [and] prosecute or defend all actions,
suits and proceedings in the county to which the state is a
party.” Id. § 8.680. For campaign finance purposes, “‘State
office’ means the office of Governor, Secretary of State,
State Treasurer, Attorney General, Commissioner of the
Bureau of Labor and Industries, state Senator, state
Representative, judge or district attorney.” Id.
§ 260.005(23).
Although district attorneys have responsibilities to their
counties, the district attorneys’ statutory duties to the state
strongly suggest that the office is a state office.
Appointment, removal, and supervision. Oregon law
provides that the “district attorney for each county shall be
elected by the electors of the county.” Id. § 8.610. Any
person elected district attorney must file a certificate of
election with the Secretary of State. Id. § 8.620. In the event
that the office becomes vacant, the Governor has the power
to appoint a successor until the next election. Id. § 8.640.
Nothing in Oregon law addresses the removal of district
attorneys specifically, but the Secretary of State lists district
20 GIBSON V. CITY OF PORTLAND

attorneys as a “state public officer” subject to recall by filing
a petition with the state elections division. Sec’y of State of
Or., Elections Div., Recall Manual at 4 (rev. 2024); see Or.
Rev. Stat. §§ 249.002(10), 258.055(3)(a), 260.005(23).
Although the electorate ostensibly has a check on district
attorneys, nothing in Oregon statutory law places district
attorneys under the direction of county commissions. It is
the Attorney General who has “supervisory authority over
district attorneys’ core functions.” Marteeny, 517 P.3d at
355–56. Oregon law provides that

[t]he Attorney General shall consult with,
advise, and direct the district attorneys in all
criminal causes and matters relating to state
affairs in their respective counties. The
Attorney General may require their aid and
assistance in all matters pertaining to the
duties of the Attorney General in their
respective counties and may, in any case
brought to the Supreme Court or the Court of
Appeals from their respective counties,
demand and receive assistance of the district
attorney from whose county such case or
matter is brought.

Or. Rev. Stat. § 180.060(5). The Attorney General has
authority commensurate with that of district attorneys. “The
Attorney General and the Department of Justice shall have
the same powers and prerogatives in each of the several
counties of the state as the district attorneys have in their
respective counties.” Id. § 180.240. The Attorney General
may convene a grand jury and institute prosecutions in any
circuit court in the state and, when so doing, “shall have all
GIBSON V. CITY OF PORTLAND 21

the powers of a district attorney.” Id. § 180.070(2).
Likewise, the Attorney General “shall consult with, advise
and direct the district attorneys in all criminal causes and
matters relating to state affairs in their respective counties.”
Id. § 180.060(5).
If directed by the Governor, the Attorney General may
assume control of a case and exercise the powers of the
district attorney, and in such a situation, the district attorney
may “only exercise such powers and perform such
duties . . . as are required of the district attorney by the
Attorney General.” Id. § 180.080. For example, the
Governor may direct the Attorney General to “take full
charge of any investigation or prosecution of violation of law
in which the circuit court has jurisdiction.” Id. § 180.070(1).
But the Attorney General’s power to assume control over a
specific prosecution at the Governor’s direction “does not
deprive the district attorney[] of any of their authority, or
relieve them from any of their duties to prosecute criminal
violations of law and advise the officers of the counties
composing their districts.” Id. § 180.070(4). In other words,
the Attorney General may act as a special prosecutor within
a district attorney’s district for a specific case, but the
Attorney General does not assume all authority or duties of
the district attorney. See Oregon v. Williams, 336 P.2d 68,
74–75 (Or. 1959).
Although district attorneys are elected county-by-
county, the office is created by state law, and the Governor,
not the county, has the power to fill any temporary vacancy
in the office. While the county government itself may seek
the district attorney’s advice and is to be represented by the
district attorney in litigation, the county does not otherwise
exercise control over the district attorney. More importantly,
the Oregon Attorney General has substantial authority to
22 GIBSON V. CITY OF PORTLAND

supervise district attorneys. This factor ultimately favors a
determination that the office is a state office.
Financial matters. “Although Oregon’s DAs are elected
by and accountable to the people in their respective counties,
they are considered state officers whose salaries are paid by
the State.” Oregon’s 36 District Attorneys, Or. Blue Book,
https://perma.cc/DMM3-D88C. The state sets the salary
schedule for district attorneys. Or. Rev. Stat. §§ 8.852,
240.240(2). A district attorney’s salary can be augmented by
the county, id. § 8.830, and the county is responsible for
district attorneys’ office space and facilities, supplies, and
assistance, id. § 8.850.
The question of what level of Oregon government would
be responsible for any judgment against MCDA is
reasonably clear. For indemnity purposes, “‘state officer,
employee or agent’ includes district attorneys and deputy
district attorneys, special prosecutors and law clerks of the
office of district attorney who act in a prosecutorial capacity,
but does not include any other employee of the office of
district attorney . . . whose salary is paid wholly or in part by
the county.” Id. § 30.285(7). 3 At oral argument, both the
state and the county advised us that the State of Oregon
would be responsible for any judgment against MCDA or the
district attorneys.

3
We note that unlike district attorneys, who are paid by the state, deputy
district attorneys are “paid out of the county funds in the same manner
as county officers are paid.” Or. Rev. Stat. § 8.760. Nevertheless,
Oregon law provides that “[a] deputy district attorney . . . has the same
functions as the district attorney,” id. § 8.780, and the state remains on
the hook to indemnify deputy district attorneys, id. § 30.285(7). We see
no reason to distinguish between district attorneys and their deputies for
Eleventh Amendment purposes.
GIBSON V. CITY OF PORTLAND 23

This factor favors finding that the district attorney’s
office is a state office.
***
On balance, we are persuaded that MCDA is a state
office, and district attorneys and deputy district attorneys are
state officers, as the Oregon courts have concluded. 4 The
prosecutor Defendants are state actors shielded by the
Eleventh Amendment and may not be sued in their official
capacity for money damages. The district court properly
dismissed with prejudice all claims 5 against them and
MCDA.
2. District Attorneys Underhill and Schmidt
Plaintiffs also sued District Attorneys Underhill and
Schmidt in their personal capacities. They claim that the
district court erred in holding that Underhill and Schmidt had
immunity for their prosecutorial decisions. Plaintiffs

4
Plaintiffs argue that, notwithstanding Oregon law, in Williams v. Reed,
604 U.S. 168 (2025), the Supreme Court removed the authority of states
to immunize state actors from federal liability. Plaintiffs have overread
Williams. In that case, the Court held that Alabama courts could not
refuse to hear § 1983 cases seeking injunctive relief in the form of an
order directing a state agency to render a decision on unemployment
claims based on a state administrative exhaustion rule. 604 U.S. at 170–
72. In so holding, the Court reiterated its long-standing rule that “‘a state
law that immunizes government conduct otherwise subject to suit under
§ 1983 is preempted, even where the federal civil rights litigation takes
place in state court.’” Id. at 174 (quoting Felder v. Casey, 487 U.S. 131,
139 (1988)). Williams did not involve the Eleventh Amendment, which
is the basis for MCDA’s claim to sovereign immunity.
5
Absent an express waiver by the state, the Eleventh Amendment bars
both federal and state-law claims against state officers in federal court.
See Alden v. Maine, 527 U.S. 706, 735 (1999); Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 98–99 (1984).
24 GIBSON V. CITY OF PORTLAND

contend that the District Attorney Defendants intentionally
singled them out for prosecution for the incident at Cider
Riot, and that Schmidt knowingly failed to enforce his non-
prosecution policy equally between right-wing and left-wing
protestors. Defendants claim they are entitled to absolute
immunity for these claims because they were prosecutorial
acts. 6
Prosecutors are absolutely immune “for actions
‘intimately associated with the judicial phase of the criminal
process,’ such as the prosecutor’s initiation of a prosecution
and presentation of the state’s case.” Torres v. Goddard, 793
F.3d 1046, 1051 (9th Cir. 2015) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430 (1976)). Absolute immunity
does not protect prosecutors merely because they are
prosecutors; rather, immunity turns on “the nature of the
function performed, not the identity of the actor who
performed it.” Kalina v. Fletcher, 522 U.S. 118, 127 (1997)
(citation omitted). Thus, unlike sovereign immunity, which
is based on the Eleventh Amendment and is entity-based,
prosecutorial immunity is grounded in common-law and
prudential concerns and is activity-based. See id. at 123–24;
Kohn, 87 F.4th at 1029. A prosecutor is immune from suits

6
Although we conclude in the next section that Plaintiffs’ pleading is
deficient, we are able to address this claim to immunity for a few reasons.
First, the complaint’s factual averments demonstrate that Plaintiffs
challenge the District Attorneys’ prosecutorial decisions, including their
purportedly uneven application of the non-prosecution policy. Second,
a copy of the non-prosecution policy is included in the record. Third,
emails between MCDA prosecutors and Plaintiffs’ counsel in their
criminal case related to the retroactive application of the non-prosecution
policy are included in the record. With these pieces of the puzzle, and
cognizant of our duty to decide immunity questions as soon as
practicable, we can analyze Defendants’ assertion of prosecutorial
immunity at this juncture.
GIBSON V. CITY OF PORTLAND 25

stemming from their advocacy but not for administrative or
investigative tasks. Van de Kamp v. Goldstein, 555 U.S. 335,
342 (2009).
Prosecutors have wide discretion to decide who to
charge. See Hovey v. Ayers, 458 F.3d 892, 921 (9th Cir.
2006). “A prosecutor has absolute immunity for the decision
to prosecute . . . [and] the decision not to prosecute.” Roe v.
City & Cnty. of S.F., 109 F.3d 578, 583 (9th Cir. 1997)
(citations omitted). A decision to prosecute or not prosecute
a matter is a complex interplay of law, facts, resources, and
intuition. See Wayte v. United States, 470 U.S. 598, 607
(1985). Although an indictment or information, once filed,
may be challenged in the course of the proceeding, the
prosecutor’s decision whether, when, and what kind of cases
should be charged is not subject to our review prior to the
bringing of the charges. “Public prosecutions, until they
come before the court to which they are returnable, are
within the exclusive discretion of the district attorney . . . .”
The Confiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1868);
see United States v. Batchelder, 442 U.S. 114, 124 (1979)
(“Whether to prosecute and what charge to file or bring
before a grand jury are decisions that generally rest in the
prosecutor’s discretion.”); Bordenkircher v. Hayes, 434 U.S.
357, 364 (1978) (whether and what to charge “rests entirely
in [the prosecutor’s] discretion”).
To be sure, although “the conscious exercise of some
selectivity in enforcement is not in itself a federal
constitutional violation,” selectivity “deliberately based on
an unjustifiable standard such as race, religion, or other
arbitrary classification” would be grounds for dismissing the
criminal action. Oyler v. Boles, 368 U.S. 448, 456 (1962);
see United States v. Armstrong, 517 U.S. 456, 464 (1996); cf.
United States v. Wilson, 123 F.4th 1021, 1027–28 (9th Cir.
26 GIBSON V. CITY OF PORTLAND

2024). But our power to dismiss an unjust criminal action
does not extend to imposing civil penalties against the
prosecutor under § 1983, “insofar as [the prosecutor’s
conduct] is ‘intimately associated with the judicial phase of
the criminal process.’” Burns v. Reed, 500 U.S. 478, 486
(1991) (citation omitted).
In civil cases such as this one, we will not consider a
prosecutor’s motivation when making prosecutorial
decisions; the prosecutor’s motivation is irrelevant to the
immunity inquiry, even if we thought the motivation was
unconstitutional. See McCarthy v. Mayo, 827 F.2d 1310,
1315 (9th Cir. 1987). As we explained in Ashelman v. Pope,
“[i]ntent should play no role in the immunity analysis.
Moreover, allegations that a conspiracy produced a certain
decision should no more pierce the actor’s immunity than
allegations of bad faith, personal interest or outright
malevolence.” 793 F.2d 1072, 1078 (9th Cir. 1986) (en
banc) (citations omitted); see Sample v. City of Woodbury,
836 F.3d 913, 916 (8th Cir. 2016); Bernard v. Cnty. of
Suffolk, 356 F.3d 495, 503–05 (2d Cir. 2004); Kulwicki v.
Dawson, 969 F.2d 1454, 1464 (3d Cir. 1992). Consistent
with this reasoning, we have acknowledged that absolute
“immunity covers the knowing use of false testimony at trial,
the suppression of exculpatory evidence, and malicious
prosecution.” Milstein v. Cooley, 257 F.3d 1004, 1008 (9th
Cir. 2001). We have immunized prosecutors for their
prosecutorial acts even where they supposedly acted
maliciously or intentionally. See McCarthy, 827 F.2d at
1315 (rejecting a plaintiff’s plea to recognize an exception
to absolute prosecutorial immunity based on “the egregious
nature of th[e] case”). We recognize that “[t]his immunity
does leave the genuinely wronged defendant without civil
redress against a prosecutor whose malicious or dishonest
GIBSON V. CITY OF PORTLAND 27

action deprives him of liberty.” Imbler, 424 U.S. at 427.
Nevertheless, “[t]he alternative of qualifying a prosecutor’s
immunity would . . . prevent the vigorous and fearless
performance of the prosecutor’s duty that is essential to the
proper functioning of the criminal justice system.” Id. at
427–28.
Here, Plaintiffs seek to hold the District Attorney
Defendants individually liable for charging some individuals
and declining to charge others based on their political
expression. For better or worse, these are proceedings that
are “intimately associated with the judicial phase of the
criminal process,” Burns, 500 U.S. at 486, and are protected
by absolute prosecutorial immunity, Roe, 109 F.3d at 583.
Regardless of the prosecutors’ motives for charging
Plaintiffs, such as silencing Plaintiffs’ speech or preventing
their participation in the upcoming protest, the District
Attorney Defendants are entitled to absolute immunity for
their charging decisions. Imbler, 424 U.S. at 431.
Plaintiffs point to Schmidt’s adoption of the non-
prosecution policy related to riot and claim that adopting the
policy was a legislative act, not a prosecutorial one, and thus
is not entitled to immunity. This argument is meritless. We
have held that a prosecutor’s adoption of a non-prosecution
policy is a prosecutorial act protected by absolute immunity.
See, e.g., Botello v. Gammick, 413 F.3d 971, 977 (9th Cir.
2005); Roe, 109 F.3d at 583. Decisions whether to prosecute
a single case or a series of cases are still charging decisions,
and charging decisions are prosecutorial, not legislative acts.
See Roe, 109 F.3d at 583. We decline Plaintiffs’ invitation to
ignore our precedent and deem a prosecutorial act a
legislative one merely because it involves a question of
enforcement policy related to a statute. District Attorneys
Underhill and Schmidt are entitled to absolute immunity for
28 GIBSON V. CITY OF PORTLAND

their prosecutorial decisions. Schmidt is entitled to absolute
immunity in connection with promulgating and enforcing his
non-prosecution policy.
3. Deputy District Attorneys Hughey and Kalbaugh
Plaintiffs likewise sued Deputy District Attorneys
Hughey and Kalbaugh in their individual capacities. To the
extent that they were involved in prosecutorial activities,
they are entitled to absolute immunity for the same reasons
described above.
There is one important twist here. Plaintiffs contend that
Kalbaugh presented knowingly false testimony to obtain an
arrest warrant. They argue that the district court erred by
granting Kalbaugh absolute immunity because filing a
probable cause affidavit is not a prosecutorial function
warranting absolute immunity. They also argue that, aside
from his role as prosecutor, he is not entitled to qualified
immunity. We agree and reverse the district court’s dismissal
of this action against Kalbaugh in his individual capacity.
As we have discussed above, prosecutors are absolutely
immune for their conduct in connection with the prosecution
and presentation of the state’s case. “To decide whether
absolute immunity attaches to a particular kind of
prosecutorial activity, [we] must take account of the
‘functional’ considerations . . . .” Van de Kamp, 555 U.S. at
342. Such “functions are those ‘intimately associated with
the judicial phase of the criminal process,’ in which the
prosecutor is acting as ‘an officer of the court.’” Lacey, 693
F.3d at 912 (quoting Van de Kamp, 555 U.S. at 342). They
typically include actions taken to initiate the judicial process,
such as “whether to present a case to a grand jury, whether
to file an information, whether and when to prosecute,
whether to dismiss an indictment against particular
GIBSON V. CITY OF PORTLAND 29

defendants, which witnesses to call, and what other evidence
to present.” Imbler, 424 U.S. at 431 n.33.
The Supreme Court has “held that absolute immunity
does not apply . . . when a prosecutor acts as a complaining
witness in support of a warrant application.” Van de Kamp,
555 U.S. at 343 (citing Kalina, 522 U.S. at 132 (Scalia, J.,
concurring)). A prosecutor is a complaining witness when
he “certif[ies] that the facts alleged within an affidavit are
true.” Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 845
(9th Cir. 2016) (citation modified). Likewise, prosecutors
are not performing a prosecutorial function when they
undertake a role that could be fulfilled by someone other
than a prosecutor—“an act that any competent witness might
have performed.” Kalina, 522 U.S. at 129–30; id. at 130–31
(“Testifying about facts is the function of the witness, not of
the lawyer. . . . Even when the person who makes [a]
constitutionally required ‘Oath or affirmation’ is a lawyer,
the only function that she performs in giving sworn
testimony is that of a witness.”).
Notwithstanding the clarity of the Court’s statements,
Kalbaugh claims that there are extenuating reasons that he is
entitled to absolute immunity or, alternatively, qualified
immunity. We address each in turn.
Absolute Immunity. Kalbaugh posits three reasons he
deserves absolute immunity. First, he merely “recited
evidence that was available to the state and argued that the
state’s position was that the evidence established probable
cause.” Second, he only related “what the detective reported
to him based on what the detective saw and learned while
investigating the case.” Third, he points out that signing
these affidavits is a common practice of prosecutors, and
permitting this litigation would allow disgruntled defendants
30 GIBSON V. CITY OF PORTLAND

to relitigate their criminal cases. None of these arguments is
convincing.
Under Oregon law, someone had to serve as the
complaining witness. Or. Const. art. I, § 9 (“no warrant shall
issue, but on probable cause supported by oath or
affirmation”); see Kalina, 522 U.S. at 129 (describing the
similar Fourth Amendment requirement). But “neither
federal nor state law made it necessary for [Kalbaugh, as the
prosecutor,] to make that certification.” Kalina, 522 U.S. at
129. It was Kalbaugh’s choice to file his own affidavits, it
was his signature on the affidavits, and it was his assertion
of probable cause. See Morley v. Walker, 175 F.3d 756, 758,
760 (9th Cir. 1999).
Kalbaugh did not merely recite the state’s evidence; he
personally attested to the truth of the statements contained in
his affidavits. The affidavits began:

I, Brad Kalbaugh, having been first duly
sworn, depose and say that the accompanying
accusatory instrument is based upon the
information set forth below, which is true as
I verily believe. That I am employed as a
Deputy District Attorney for Multnomah
County, Oregon. That in the course of my
duties, I have learned or have been told the
following concerning the investigation of
criminal acts in Multnomah County, Oregon,
committed by [Plaintiffs].

Although Kalbaugh noted that he was a deputy prosecutor
and that he learned this information in that capacity, he made
multiple “I” statements that suggest that he is the affiant, not
the state. He swore that he, not the state, verily believed the
GIBSON V. CITY OF PORTLAND 31

averments in the affidavits. He attested that he, not the state,
had learned or was told about the facts of the investigation.
At the end of each affidavit, Kalbaugh wrote, “I have
probable cause to believe that [Plaintiff] has committed the
crime(s) of: Count 1 – RIOT. I move the Court on the within
that a warrant be issued for the apprehension of said
defendant.” Finally, the affidavits contained Kalbaugh’s
signature without any qualifier, such as “on behalf of the
state” or “for the Multnomah County District Attorney’s
Office.” Kalbaugh was personally testifying to the
truthfulness of his statements. Admittedly, Kalbaugh likely
would not have filed the affidavit if he was not a prosecutor,
but that just underscores that he had control of the filings in
the case and chose to file the affidavit himself. The fact
remains that “any competent witness” could have made these
statements. See Kalina, 522 U.S. at 129–30.
Likewise, Kalbaugh’s argument that he was only reciting
what Detective Traynor had told him he observed, such that
Kalbaugh was not the complaining witness himself, is
unpersuasive. Kalbaugh could have asked Traynor to be the
complaining witness. Kalbaugh did not, and he signed the
affidavit. Although he conceded in the affidavit that he was
not an eyewitness, he essentially vouched for Traynor, who
had not attested to the facts in the affidavit. And more
importantly, Kalbaugh is now asking the court to rely on his
vouching for Traynor.
Lastly, it is no answer that prosecutors must be immune
because they routinely file affidavits like this one. The
frequency with which prosecutors take an action does not
transform that action into a prosecutorial function.
Prosecutors frequently drive to court; surely, a prosecutor
could not claim immunity from a tort suit if he hit a
pedestrian on his way there. Otherwise, there would be no
32 GIBSON V. CITY OF PORTLAND

need for the functional approach to absolute immunity, as
any frequent action of a prosecutor would warrant immunity.
We have rejected such a categorical approach. Torres, 793
F.3d at 1051. Immunity shields prosecutors engaged in
prosecutorial conduct, absolutely, not prosecutors,
absolutely. Id. The district court erred by granting Kalbaugh
absolute immunity.
Qualified immunity. Although Kalbaugh is not entitled
to absolute immunity as a prosecutor, as the complaining
witness, he may be entitled to qualified immunity in the
same manner as other state witnesses. A state actor is
entitled to qualified immunity if his “conduct did not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow, 457 U.S.
at 818; Longoria v. Pinal Cnty., 873 F.3d 699, 704 (9th Cir.
2017). This is a two-step inquiry, but we may decide the
questions in any order and need not reach the second
question if our answer to the first is dispositive. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). We first ask whether
the conduct violated a constitutional or statutory right. If so,
we then ask whether that right was clearly established. See
id. at 232. If there was no violation of a constitutional right,
the cause of action fails on the merits; if, however, there was
a violation of a constitutional right, but the right was not
clearly established, the defendant is immune from suit. See
id. at 231.
When ascertaining if a right was clearly established, the
Supreme Court has cautioned us not to view the right at a
high level of generality. See Mullenix v. Luna, 577 U.S. 7,
12 (2015) (citation omitted). A right is clearly established
where “existing precedent . . . placed the statutory or
constitutional question beyond debate.” Ashcroft v. Al-Kidd,
563 U.S. 731, 741 (2011). “[T]he burden is on Plaintiffs to
GIBSON V. CITY OF PORTLAND 33

show that ‘the right’s contours were sufficiently definite that
any reasonable official in the defendant’s shoes would have
understood that he was violating it.’” Napouk v. Las Vegas
Metro. Police Dep’t, 123 F.4th 906, 922 (9th Cir. 2024)
(citation omitted) (quoting Kisela v. Hughes, 584 U.S. 100,
105 (2018)).
In this case, Plaintiffs alleged that Kalbaugh knowingly
presented false statements to secure an arrest warrant, and
that he knew that a judge would not have issued the warrant
absent the false statements. We have held since at least 1991
that a state actor who presents knowingly false testimony in
support of a probable cause determination for an arrest
warrant, where the warrant would not have issued without
the false statements, violates the Fourth Amendment. See,
e.g., Mendocino Env’t Ctr. v. Mendocino Cnty., 192 F.3d
1283, 1295 (9th Cir. 1999); Hervey v. Estes, 65 F.3d 784, 788
(9th Cir. 1995) (citations omitted); Branch v. Tunnell, 937
F.2d 1382, 1387 (9th Cir. 1991), overruled on other grounds
by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1127
(9th Cir. 2002). No reasonable prosecutor in Kalbaugh’s
shoes would have believed that his alleged conduct did not
violate the Fourth Amendment; the act’s “unlawfulness
[was] apparent.” Anderson, 483 U.S. at 640 (citations
omitted). Because at this stage of the proceedings we must
accept the facts pleaded in the complaint, Plaintiffs have
alleged sufficient facts to show Kalbaugh is not protected by
qualified immunity.
* * *
The recourse for improper prosecutorial conduct may lie
in sanctions, in dismissal of criminal cases, in professional
disciplinary proceedings, or, where the position is an elected
one, in the voting booth, but not in a § 1983 lawsuit. See
34 GIBSON V. CITY OF PORTLAND

Imbler, 424 U.S. at 428–29. As the Supreme Court has
acknowledged, the interest in having independent
prosecutors unafraid of lawsuits for their charging decisions
necessitates the “strong medicine” of absolute immunity.
Forrester v. White, 484 U.S. 219, 230 (1988) (citation
omitted); see Burns, 500 U.S. at 485–86; see also Milstein,
257 F.3d at 1007 (citations omitted) (describing the policy
justifications for absolute prosecutorial immunity). That
strong medicine is called for here, and the district court
properly dismissed with prejudice all claims 7 against the
District Attorney Defendants and Deputy District Attorney
Hughey, in their individual capacities, based on their
charging decisions and enforcement of their non-prosecution
policy. It erred, however, when it extended that protection
to Deputy Assistant District Attorney Kalbaugh for filing his
affidavits, actions that were not inextricably tied to his
responsibilities as a prosecutor.
4. Multnomah County
The district court ruled that Multnomah County is
immune from Plaintiffs’ Oregon-law claims for malicious
prosecution, false arrest and imprisonment, and negligence.
Specifically, the district court concluded that because the

7
Under Oregon law, prosecutors are similarly entitled to absolute
immunity “for acts performed in initiating prosecutions,” including
“decision[s] as to ‘when, how, and against whom to proceed.’” Heusel
v. Multnomah Cnty. Dist. Att’y’s Off., 989 P.2d 465, 467 (1999) (quoting
Watts v. Gerking, 111 Or. 641, 657 (1924)); see also Tennyson v.
Children’s Servs. Div., 308 Or. 80, 86 (1989) (explaining that state
prosecutors performing “functions that are ‘integral parts of the judicial
process,’” including “initiating criminal prosecutions, . . . are entitled to
absolute immunity”). We thus agree with the district court’s conclusion
that District Attorney Defendants and Deputy District Attorney Hughey
are entitled to absolute immunity from Plaintiffs’ state-law claims.
GIBSON V. CITY OF PORTLAND 35

prosecutor Defendants are entitled to absolute immunity
from Plaintiffs’ state-law claims, Oregon law shields
Multnomah County from liability for their conduct. See Or.
Rev. Stat. § 30.265(5) (“Every public body is immune from
liability for any claim for injury to or death of any person or
injury to property resulting from an act or omission of an
officer, employee or agent of a public body when such
officer, employee or agent is immune from liability.”).
Because we have already concluded that MCDA and
Multnomah County are separate legal entities, and that the
district attorneys and deputy district attorneys are state
employees, § 30.265(5) has no application here. 8 On
remand, Plaintiffs should be permitted to replead their
claims against Multnomah County, but only to the extent that
they are not based on the acts or omissions of MCDA or the
prosecutor Defendants.
5. Detective Traynor
The district court ruled that Detective Traynor is
absolutely immune from liability for any claim arising from
his grand jury testimony. We agree.
Under both state and federal law, “[w]itnesses, including
police officers, are absolutely immune from liability for
testimony . . . before a grand jury.” Lisker v. City of Los

8
We are aware that in Jackson v. Multnomah Cnty., 709 P.2d 1153 (Or.
Ct. App. 1985), Multnomah County “d[id] not dispute that it is
responsible for the acts of [a] deputy district attorney.” Id. at 1155 n.4.
The question was purely hypothetical, however, because the deputy
district attorney in that case was immune from liability, so the County
would have been immune as well under § 30.265(5). Id. Moreover, the
County’s apparent concession in Jackson is inconsistent with the later-
enacted § 30.285(7), which imposes state liability for the acts of “deputy
district attorneys” but not of other “employee[s] of the office of district
attorney . . . whose salary is paid wholly or in part by the county.”
36 GIBSON V. CITY OF PORTLAND

Angeles, 780 F.3d 1237, 1241 (9th Cir. 2015) (citing Rehberg
v. Paulk, 566 U.S. 356, 375 (2012)); see Tennyson, 308 Or.
at 86. That immunity extends to conspiracies to provide
false testimony and to any other “preparatory activities” that
are “inextricably tied” to the witness’s testimony. Lisker,
780 F.3d at 1241. It does not, however, extend to “‘non-
testimonial’ acts, such as ‘tampering with documentary or
physical evidence or preventing witnesses from coming
forward.” Id. at 1242 (citation omitted).
Here, many of Plaintiffs’ allegations against Detective
Traynor arise directly from or are inextricably intertwined
with his grand jury testimony. The district court correctly
determined that Traynor is absolutely immune from claims
arising from that conduct. The district court also properly
granted Traynor immunity from Plaintiffs’ claims only to the
extent they arise out of his grand jury testimony; on remand,
Plaintiffs may replead their claims to allege other conduct
for which Traynor might not be immune.
B. Rule 8
Plaintiffs challenge the district court’s conclusion that
the complaint failed to conform to Rule 8(a)(2), 9 which

9
The dissent’s party-presentation argument that the record has not
“invite[d] us to consider the shotgun-pleading rule” is perplexing.
Dissenting Op. at 59. At least one Defendant moved to dismiss the
complaint specifically on the ground that it “fails to comply with Federal
Rule of Civil Procedure 8(a)(2)”; the district court separately addressed
that argument, agreeing that the complaint constituted a “[s]hotgun
pleading” and noting that such pleadings are subject to dismissal;
Plaintiffs dedicated separate sections of their Opening and Reply Brief
to challenging the district court’s Rule 8(a)(2) dismissal; and MCDA
likewise dedicated a separate section of its Answering Brief to arguing
that the complaint was properly dismissed under Rule 8(a)(2). That
some of the parties may not have expressly used the term “shotgun
GIBSON V. CITY OF PORTLAND 37

mandates that “[a] pleading that states a claim for relief must
contain . . . a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
The district court held that the complaint “contain[ed]
several broadly pled facts in which Plaintiffs assert[ed]
allegations against ‘Defendants’ without specifying which
defendants engaged in the act. In addition, Plaintiffs’ claims
under § 1985, § 1986, and state law incorporate all factual
allegations of the 46-page [complaint] and lump all
Defendants together.” Noting that a complaint that engages
in shotgun pleading violates the Federal Rules and is subject
to dismissal, the district court concluded: “Plaintiffs plead
multiple claims and do not identify which specific facts are
allocated to which claim and, as such, they fail to satisfy
Rule 8(a)(2).”
On appeal, Plaintiffs argue that they “set forth an
extremely detailed chronological narrative identifying
specific misconduct of each Defendant.” Furthermore,
Plaintiffs contend that if they had repeated all of this
information in each of their four claims for relief, they would
have violated Rule 8(a)’s imperative against repetition. But
Plaintiffs misread Rule 8’s requirements, and the district
court properly dismissed the complaint as a shotgun
pleading.
1. Shotgun Pleadings
We are to construe the Federal Rules of Civil Procedure
“to secure the just, speedy, and inexpensive determination of
every action.” Fed. R. Civ. P. 1. Rule 8 requires every
“pleading that states a claim for relief [to] contain” three

pleading” does not prevent us from addressing the substance of the
district court’s ruling and the parties’ arguments.
38 GIBSON V. CITY OF PORTLAND

things: “a short and plain statement of the grounds for the
court’s jurisdiction,” “a short and plain statement of the
claim showing that the pleader is entitled to relief,” and “a
demand for the relief sought.” Fed. R. Civ. P. 8(a)(1)–(3).
The Supreme Court’s decision in Ashcroft v. Iqbal supplies
the guidelines for applying Rule 8:

The pleading standard Rule 8 announces
does not require detailed factual allegations,
but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me
accusation. A pleading that offers labels and
conclusions or a formulaic recitation of the
elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked
assertions devoid of further factual
enhancement.

556 U.S. at 678 (citation modified) (quoting Twombly, 550
U.S. at 555, 557). Iqbal requires attention to the pleading of
both facts and law. A complaint may be deficient because it
does not provide sufficient facts to support a cause of action;
on the other hand, even “well-pleaded facts” are not
sufficient if they are accompanied by only “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements.” Id. The goal here is to provide
“sufficient notice” so the parties and the court can “focus
litigation on the merits of a claim.” Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 514 (2002); see Erickson v. Pardus, 551
U.S. 89, 93–94 (2007) (per curiam) (applying Rule 8); Starr
v. Baca, 652 F.3d 1202, 1212–16 (9th Cir. 2011) (discussing
Iqbal and applying Rule 8).
GIBSON V. CITY OF PORTLAND 39

With these principles in mind, we are prepared to discuss
the problem of shotgun pleadings. A shotgun pleading is one
where “a party indiscriminately incorporates assertions from
one count to another, for example, by incorporating all facts
or defenses from all previous counts into each successive
count . . . prevent[ing] the opposing party from reasonably
being able to prepare a response or simply mak[ing] the
burden of doing so more difficult.” 5A Wright & Miller’s
Federal Practice and Procedure § 1326 (4th ed. 2024).
Incorporation by reference is permitted by Rule 10(b) and
(c), but when it is used indiscriminately, it becomes a
shortcut by counsel that violates Rule 8. There are four main
types of shotgun pleadings:

(1) a complaint containing multiple counts
where each count adopts the allegations of all
preceding counts, causing each successive
count to be a combination of the entire
complaint; (2) a complaint that is replete with
conclusory, vague, and immaterial facts not
obviously connected to any particular cause
of action; (3) a complaint that fails to separate
into a different count each cause of action or
claim for relief; and (4) a complaint that
asserts multiple claims against multiple
defendants without specifying which of the
defendants are responsible for which acts or
omissions, or which of the defendants the
claim is brought against.

35A C.J.S. Fed. Civ. Proc. § 310 (2025); see also 61A Am.
Jur. 2d Pleading § 159 (2025) (discussing the “four rough
types or categories of shotgun pleadings”). As we noted
above, the problem with shotgun pleadings is that they make
40 GIBSON V. CITY OF PORTLAND

it difficult, if not impossible, for the opposing party to
formulate a response. See Weiland v. Palm Beach Cnty.
Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015) (“The
unifying characteristic of all types of shotgun pleadings is
that they fail . . . to give the defendants adequate notice of
the claims against them and the grounds upon which each
claim rests.”). But the defendant is not the only interested
party affected. “[Shotgun pleadings] waste scarce judicial
resources, inexorably broaden the scope of discovery, wreak
havoc on appellate court dockets, and undermine the public’s
respect for the courts.” Vibe Micro, Inc. v. Shabanets, 878
F.3d 1291, 1295 (11th Cir. 2018) (citation modified)
(quoting Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d
955, 981–83 (11th Cir. 2008), abrogated on other grounds
by, Twombly, 550 U.S. at 544).
We have discussed the relationship between shotgun
pleadings and Rule 8 briefly in one published opinion. In
Destfino v. Reiswig, 630 F.3d 952 (9th Cir. 2011), we
affirmed a district court’s dismissal with prejudice of the
plaintiffs’ second amended complaint as a shotgun pleading.
Id. at 958–59. The complaint alleged fraud, which fell under
the ambit of Rule 9(b)’s demand of particularity in pleading.
Id.; see Fed. R. Civ. P. 9(b). However, we noted that the
complaint also failed under Rule 8(a)(2)’s “short and plain
statement” requirement. Destfino, 630 F.3d at 959. We
found that “the district court gave plaintiffs several chances
to amend, with detailed instructions as to what they needed
to do to fix the problems with their complaint. Plaintiffs
failed to comply . . . and it was therefore proper for the court
to dismiss their entire complaint without further leave to
amend.” Id.
Several of our sister circuits have either expressly
adopted, acknowledged, or applied some variation of a
GIBSON V. CITY OF PORTLAND 41

shotgun pleading rule. For example, in Lee v. Ohio
Education Ass’n, 951 F.3d 386 (6th Cir. 2020), the plaintiff
placed “all seven of her state-law causes of action . . . within
a single sentence.” Id. at 392. The Sixth Circuit found that
this practice violated both Rule 8(b)(2) by “fail[ing] to
connect specific facts or events with the various causes of
action she asserted” and Rule 10(b) by failing to separate her
causes of action into separate counts. Id. at 392–93 (internal
quotation marks and citation omitted). And as the Eleventh
Circuit has explained:

[W]hen faced with a complaint [that lumps
multiple claims together in one count, and] in
which the counts incorporate by reference all
previous allegations and counts, the district
court must cull through the allegations,
identify the claims, and, as to each claim
identified, select the allegations that appear to
be germane to the claim. This task can be
avoided if the defendant moves the court for
a more definite statement or if the court,
acting on its own initiative, orders a
repleader.

Ledford v. Peeples, 605 F.3d 871, 892 (11th Cir. 2010),
vacated on other grounds, 657 F.3d 1222 (11th Cir. 2011);
see Fed. R. Civ. P. 12(e) (authorizing motions for a more
definite statement). The Eleventh Circuit has been the most
vocal of the circuits. See Vibe Micro, 878 F.3d at 1295
(observing that “[c]ourts in the Eleventh Circuit have little
tolerance for shotgun pleadings”). Relying on a district
court’s “inherent authority to control its docket and ensure
the prompt resolution of lawsuits,” the Eleventh Circuit
permits district courts to dismiss shotgun pleadings, subject
42 GIBSON V. CITY OF PORTLAND

to an abuse of discretion standard of review. Id. (citation
omitted). Other circuits have addressed the problem as well.
See, e.g., Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939,
946 (7th Cir. 2013) (stating that a “kitchen sink” pleading
violates the Federal Rules); U.S. ex rel. Est. of Cunningham
v. Millenium Labs. of Cal., Inc., 713 F.3d 662, 664 n.2 (1st
Cir. 2013) (“Ordinarily, the issue of stating multiple claims
in a single count is dealt with as a ‘shotgun’ pleading, or a
pleading that fails to identify claims with sufficient clarity to
enable a defendant to frame a responsive pleading.”); Glenn
v. First Nat’l Bank in Grand Junction, 868 F.2d 368, 371
(10th Cir. 1989) (“The law recognizes a significant
difference between notice pleading and ‘shotgun’
pleading.”); see also Decker v. Massey-Ferguson, Ltd., 681
F.2d 111, 114–15 (2d Cir. 1982) (discussing a shotgun
pleading’s deficiencies, albeit in the Rule 9 context).
This case provides us with an opportunity to make clear
that district courts do not have to accept such shotgun
pleadings. It is not the job of the district courts to make sense
of the pleading, to supply facts to support the claim, or to
imagine the claims that might fit the facts. Whether the
parties have raised the issue or not, the district court has
“inherent authority to control its docket and ensure the
prompt resolution of lawsuits, which in some circumstances
includes the power to dismiss a complaint for failure to
comply with Rule 8(a)(2) and Rule 10(b).” Weiland, 792
F.3d at 1320; see Dietz v. Bouldin, 579 U.S. 40, 47 (2016)
(“[D]istrict courts have the inherent authority to manage
their dockets and courtrooms with a view toward the
efficient and expedient resolution of cases.”); Spurlock v.
F.B.I., 69 F.3d 1010, 1016 (9th Cir. 1995) (stating that a
district court has “inherent power over the administration of
GIBSON V. CITY OF PORTLAND 43

its business [and] inherent authority to . . . enforce rules for
the management of litigation” (citations omitted)).
We recognize that Rule 8 supplies a standard, not a rule.
“Shotgun pleading” describes a class of defects in
complaints; it does not supply a brightline rule. It will
require judgment on the part of the district courts to
determine those complaints that fail to provide the opposing
parties and the district court with sufficient notice of the
claims and their basis. But when district courts identify
shotgun pleadings, they should not hesitate to afford such
parties one last opportunity to make themselves understood.
In other words, we clarify today that Rule 8 provides district
courts with an additional tool that they may use to dismiss
shotgun pleadings when identified—not a rule necessarily
requiring district courts to do so, however prudent it may be.
The standard we recognize in this case is a salutary one.
First, permitting parties to file pleadings that do not tie
factual averments against specific parties to individual
causes of action infringes Rule 8. Shotgun pleading
undermines a fundamental purpose of Rule 8, which is to
provide defendants with adequate notice of the plaintiff’s
claims, including the facts and the legal basis for relief. See
Starr, 652 F.3d at 1212. And accepting such a pleading is
inconsistent with Rule 1’s dictate that the Federal Rules
should “promote the just, speedy, and inexpensive
determination of every action and proceeding.” Fed. R. Civ.
P. 1. It is not just, speedy, or inexpensive to force opposing
parties and courts to separate the wheat from the chaff in a
complaint. Second, this is a doctrine our district courts are
already regularly using, often while citing out-of-circuit
44 GIBSON V. CITY OF PORTLAND

precedent. 10 We have a prudential obligation to clarify to
district courts that in an appropriate case, like this one, they
can dismiss shotgun pleadings. Third, from a judicial policy
perspective, enforcing a bar against shotgun pleading, but
allowing the party to re-plead the complaint, not only
provides better notice to opposing parties of the claims
against them, but prevents the needless expenditure of finite
judicial resources. The dissent argues that Rule 12(e)’s
mechanism permitting a party to seek a more definite
statement is a sufficient prophylaxis to guard against shotgun
pleadings. Dissenting Op. at 62–65. We recognize that Rule
12(e) is an important tool for a party to seek clarification.
But the district courts should not be forced to wade through
a morass of allegations, trying to determine how the facts
might relate to the causes of action, simply because a party
failed to bring a Rule 12(e) motion. See, e.g., Vinole v.
Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th Cir.
2009) (acknowledging judicial efficiency concerns for class
certification); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th
Cir. 1998) (same for habeas corpus); Planned Parenthood of

10
We have surveyed published and unpublished opinions in our circuit
in which district courts have either required a party to replead a shotgun
complaint or dismissed a party for failure to correct a shotgun pleading.
Every district in our circuit except the District of Guam, which has not
had occasion to address the question, has recognized that complaints may
be dismissed if they amount to so-called “shotgun pleadings.” See, e.g.,
John Ketch LLC v. San Juan Cnty., 759 F. Supp. 3d 1121, 1131–35 (W.D.
Wash. 2024); Apothio, LLC v. Kern Cnty., 599 F. Supp. 3d 983, 1000
(E.D. Cal. 2022); A.B. v. Hilton Worldwide Holdings Inc., 484 F. Supp.
3d 921, 943–44 (D. Or. 2020); SEC v. Bardman, 216 F. Supp. 3d 1041,
1051–52 (N.D. Cal. 2016); Kim v. Quichocho, 708 F. Supp. 2d 1079,
1089–91 (N. Mar. I. 2010); Mason v. Cnty. of Orange, 251 F.R.D. 562,
563 (C.D. Cal. 2008); In re Metro. Sec. Litig., 532 F. Supp. 2d 1260, 1279
(E.D. Wash. 2007).
GIBSON V. CITY OF PORTLAND 45

S. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (same for
supplemental pleading).
2. Deficiencies in the Complaint
With that background in mind, we turn to the complaint
before us to explain why Plaintiffs’ complaint is
deficient. Let us begin with an important observation: the
inadequacies are not in the facts Plaintiffs have set forth.
Whatever else may be said of Plaintiffs’ allegations,
Plaintiffs pleaded detailed facts in 252 numbered
paragraphs. We cannot fault Plaintiffs for deciding to err on
the side of greater detail in the facts. This is a complicated
case involving what Plaintiffs believe is a months-long
conspiracy among a variety of government actors to deprive
them of their civil rights. See Otto Candies, LLC v. Citigroup
Inc., 137 F.4th 1158, 1199–1200 (11th Cir. 2025) (“The
factual allegations naturally relate to multiple counts and
‘lengthy descriptions’ are required to flesh out the plaintiffs’
claims. Put differently, though ‘the facts are voluminous,
overall they are not conclusory, vague, and immaterial.”
(citations omitted)).
The problem arises once we get to Plaintiffs’ four claims
for relief. All details evaporate when they had to link their
facts to their causes of action. We review each claim for
relief against Rule 8 here to explain why Plaintiffs’
complaint is not adequate.
First Claim for Relief: § 1983. The first claim is
Plaintiffs’ most important claim. It is also their most
unsatisfactory. It contains two main paragraphs, each with
46 GIBSON V. CITY OF PORTLAND

subparagraphs. After Paragraph 253 incorporates
Paragraphs 1–252, Paragraph 254 claims as follows:

Plaintiffs were deprived of rights guaranteed
to them under the U.S. Constitution by
defendants, acting under color of state law, in
one or more of the following particulars:
(a) Plaintiffs were deprived of their rights
of free speech and to peaceably
assemble under the First Amendment,
free from governmental retaliation;
(b) Plaintiffs were deprived of their rights
to fair judicial proceedings under the
Fifth Amendment;
(c) Plaintiffs were deprived of their right to
travel to the City of Portland, protected
under the Fifth Amendment and/or the
Privileges and [sic] Immunities Clause
of the Fourteenth Amendment;
(d) Plaintiffs were deprived of their right to
equal protection of the laws under the
Fourteenth Amendment; and
(e) Plaintiffs were deprived of their liberty
and property by reason of defamation
by defendants.

This is a classic shotgun pleading. Indeed, it violates three
of the four categories of shotgun pleadings we previously
listed: It contains multiple counts, incorporating allegations
for all preceding counts; it is conclusory and vague; and it
asserts multiple claims against multiple defendants without
GIBSON V. CITY OF PORTLAND 47

identifying who did what. See 35A C.J.S. Fed. Civ. Proc.
§ 310. We will go through each category.
First, the claim has multiple counts. It alleges violations
of the First, Fifth, and Fourteenth Amendments. With
respect to the Fourteenth Amendment, it alleges separate
violations of the Privileges or Immunities, Equal Protection,
and Due Process Clauses. Even though all of the subclaims
are constitutional in nature, they are disparate claims:
retaliation for the exercise of speech and assembly,
deprivation of fair judicial proceedings, deprivation of the
right to travel, deprivation of equal protection, and
deprivation of due process rights through defamation. These
five separate causes of action are bundled into a single claim,
and each of which is, apparently, supported by all of the facts
alleged in Paragraphs 1 through 252. Rule 8(d)(2) permits a
party to “set out 2 or more statements of a claim . . . either in
a single count . . . or in separate ones,” but that does not
relieve the party of the obligation to set forth “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Second, the claim is conclusory and vague. In Iqbal, the
Court warned that “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.” Iqbal, 556 U.S. at 678. We do not have even
“threadbare recitals of the elements of a cause of action”
here. Id. Are we really to believe that, whatever the facts,
Plaintiffs’ claim to a violation of their right to travel in
Paragraph 254(c) has the same factual and legal basis as their
claim to defamation in Paragraph 254(e)? That being
deprived of a right to a fair judicial proceeding in Paragraph
254(b) has the same factual and legal basis as a deprivation
of the right to free speech and assembly in Paragraph 254(a)?
If so, the connection has eluded us.
48 GIBSON V. CITY OF PORTLAND

Third, the claim has both multiple claims and multiple
defendants. The Defendants here include three
governmental entities, four prosecutors, and one police
detective. Did all of the Defendants violate Plaintiffs’
constitutional rights with respect to each of the five
subclaims? To take one example, did MCDA defame
Plaintiffs? Multnomah County? The City of Portland? If
the City defamed them, is that allegation based on Mayor
Wheeler’s statements to the press or on the City Council’s
resolution, or both? What statement did Detective Traynor
make that could satisfy the elements of a defamation claim?
These criticisms can be multiplied across Plaintiffs’ claims.
When Plaintiffs couch their allegations in passive voice
(“Plaintiffs were deprived . . .”), they have abandoned their
duty to identify who is responsible and have invited
Defendants, the district court, and this court to fill in the
blanks. Moreover, because the complaint refers to all of the
facts, it fails to identify the specific actions that amounted to
these violations. None of this is clear from the complaint.
These allegations require repleading.
Paragraph 255, still within the First Claim for Relief,
offers more detail than Paragraph 254 but raises a whole new
set of questions:

The foregoing facts establish one or more
customs or policies which inflicted the
injuries upon plaintiffs, including but not
limited to:
(a) On the part of defendant City of
Portland and Traynor, to defame plaintiffs,
abuse police powers to insulate plaintiffs’
political opponents from liability for
criminal misconduct, and abuse law
GIBSON V. CITY OF PORTLAND 49

enforcement authority to falsely accuse
plaintiffs of criminal conduct.
(b) On the part of defendants Multnomah
County, MCDA, Underhill, Schmidt,
Kalbaugh and Hughey to defame plaintiffs,
selectively prosecute plaintiffs, and abuse
prosecutorial discretion to insulate
plaintiffs’ political opponents from liability
for criminal misconduct.
(c) On the part of all defendants, to promote
such hatred of plaintiffs and other members
of their class that they will be physically
attacked by the protected political
opponents if they dare to visit the City of
Portland to exercise their federally-
protected rights of free speech and the right
to peaceably assemble, in order to bar them
and members of their class from any
appearance in Portland.

Unlike Paragraph 254, Paragraph 255 sounds in Monell
liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694 (1978) (requiring proof of a policy, custom, or practice
to maintain a § 1983 claim against a local government).
Although these paragraphs actually name parties against
whom Plaintiffs make various claims, it is not clear whether
the three subparagraphs are instances of the claims made in
Paragraph 254, or whether these are free-standing Monell
claims. If it is the latter, Plaintiffs should identify the
policies or identify the paragraphs in the complaint where
the policies are mentioned, and the Monell claims should be
set forth as a separate claim. Further, it is not clear that the
Defendants identified in subparagraphs (a) through (c) had
50 GIBSON V. CITY OF PORTLAND

authority to establish the policies. Traynor, for example, is
a police detective. Is he a policymaking official for the City
of Portland? Are deputy district attorneys policymakers for
Multnomah County or MDCA? Proper allegations would set
forth the elements of a Monell claim, clarifying the claim for
Defendants and the court; they would also allow Defendants
to test Plaintiffs’ claim in a motion to dismiss under Rule
12(b)(6). Questions about who can make policy for a
governmental entity are critical to Monell liability. See
generally McMillian v. Monroe Cnty., 520 U.S. 781 (1997)
(discussing whether the sheriff was a policymaker for the
county or the state). And despite identifying the players,
Plaintiffs have only listed multiple purportedly
unconstitutional actions without stating how the named
parties took those unconstitutional actions.
Plaintiffs suggest that requiring them to tether facts to
legal theories, as opposed to “realleging” every fact in each
claim for relief, would render their pleading neither short nor
plain. In effect, they argue that this would so multiply the
complaint as to violate the rule against prolixity. See, e.g.,
McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996)
(“[T]he very prolixity of the complaint made it difficult to
determine just what circumstances were supposed to have
given rise to the various causes of action.”); Cafasso, U.S. ex
rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th
Cir. 2011) (“Our district courts are busy enough without
having to penetrate a tome approaching the magnitude of
War and Peace to discern a plaintiff’s claims and
allegations.”); see also Mumm v. Jacob E. Decker & Sons,
301 U.S. 168, 170 (1937) (“The purpose of the Equity Rules
[adopted in 1912] was to simplify equity pleading and
practice, and with respect to the former to dispense with
prolix and redundant averments which had made equity
GIBSON V. CITY OF PORTLAND 51

pleading an outstanding example of unnecessary
elaboration.”). We think this misunderstands the rules. The
touchstone of Rule 8 is to provide notice of the entitlement
to relief. Starr, 652 F.3d at 1212. Factual allegations,
however detailed, must be tied to corresponding causes of
action. Plaintiffs may do so in a short and plain manner, but
it must be in a manner that actually gives Defendants notice
of the claim. Moreover, we do not think Plaintiffs need to
reallege the facts verbatim. That is one purpose for Rule
10(b), which anticipates that matters previously plead may
be incorporated by reference. For instance, we would not
quarrel with the instant complaint if it incorporated by
reference specific paragraphs of facts into specific claims for
relief. If the complaint did that, we would be able to
understand who took what actions. 11
Second Claim for Relief: § 1985. The Second Claim for
Relief includes just two paragraphs, one realleging every
preceding paragraph of the complaint, including the First
Claim for Relief, and another, Paragraph 258, stating

11
The Supreme Court’s decision in Johnson v. City of Shelby, 574 U.S.
10 (2014) (per curiam), offers Plaintiffs no respite. In Johnson, the Fifth
Circuit had dismissed a complaint merely for not citing § 1983 by name.
The Supreme Court summarily reversed. Id. at 10. In so doing, the Court
recognized that Twombly and Iqbal’s plausibility pleading standard
applied to factual allegations, not legal theories. Id. at 12. All that
plaintiffs were missing was “a citation to § 1983.” Id.
We have more systemic problems here. Plaintiffs identified detailed
facts in one section and the conclusory legal theories in another; the link
between them is missing. Thus, unlike Johnson, we do not dismiss for
failure to call a specific legal theory by its name. See id. Instead, we
dismiss because Plaintiffs have failed to tie their factual allegations to a
legal theory that demonstrates an entitlement to relief. Because of that,
neither Defendants nor the district court had adequate notice of the facts
supporting each legal claim.
52 GIBSON V. CITY OF PORTLAND

verbatim: “Defendants conspired to deprive plaintiffs of
federally-protected rights as alleged above, and at least one
of the conspirators did an overt act in furtherance of the
conspiracy, which did injured [sic] plaintiffs in their person
and property and deprived them of rights and privileges of
American citizens.” Section 1985 of Title 42 of the United
States Code provides a cause of action for conspiracy to
interfere with civil rights. It has three distinct subsections
addressing distinct conspiracies: preventing a state officer
from performing his duties, § 1985(1); deterring by force,
intimidation, or threat a party, witness, or juror, § 1985(2);
and going in disguise to deprive a person of their equal
protection of the laws or “equal privileges and immunities
under the laws,” § 1985(3). See Griffin v. Breckenridge, 403
U.S. 88, 102–03 (1971) (setting out the elements of a cause
of action under § 1985(3)).
For the same reasons as the First Claim for Relief,
Paragraph 258 is insufficient. For starters, the complaint
does not even identify the subsection or subsections of
§ 1985 under which Plaintiffs are suing. Are they alleging a
conspiracy to violate each of the three subsections of
§ 1985? As with the First Claim for Relief, Paragraph 258
refers globally to “Defendants” without identifying specific
actors. Is there a single conspiracy here? Are all of the
Defendants participants? The complaint alleges that “at least
one of the conspirators did an overt act” but does not identify
either the conspirator or the overt act. 12 There are a number
of state actors who feature prominently in the complaint,

12
To be sure, the complaint is replete with references to conspiracies.
Indeed, in the fact section, Plaintiffs have subtitled one section “Further
Overt Acts in Furtherance of the Conspiracy,” and another “Further
Conduct in Furtherance of the Conspiracy.”
GIBSON V. CITY OF PORTLAND 53

including actors who are not named as Defendants, such as
Mayor Wheeler and Portland Police Chief Danielle Outlaw.
Are they members of the conspiracy? Did either of them
commit the overt act complained of? How is a defendant or
a court to assess a plaintiff’s allegations if we do not know
who did what and, instead, are offered only “unadorned, the-
defendant-unlawfully-harmed-me accusation[s]”? Iqbal,
556 U.S. at 678. The Second Claim for Relief must be
repleaded to identify the allegedly offending parties by
name, their allegedly unconstitutional actions by something
more than reference to the entire complaint, and the legal
basis for their claim under § 1985.
Third Claim for Relief: § 1986. The Third Claim for
Relief realleges all the prior paragraphs and then states:
“Defendants had knowledge of the wrongs to be committed,
had it within their power to prevent or aid in preventing the
commission of the same, but failed to do so, in violation of
42 U.S.C. § 1986.” Section 1986 supplies a cause of action
against a person who knew of the conspiracy mentioned in
§ 1985 and “having power to prevent or aid in preventing the
commission on the same, neglects or refuses so to do.” 42
U.S.C. § 1986.
We think we have adequately made our point. As with
the Second Claim for Relief, we have no idea whether
“Defendants” means all of the Defendants or some of the
Defendants. Are Plaintiffs alleging that even the
government entities are “persons” who had power to prevent
injury under § 1985?
Fourth Claim for Relief: State Torts. The Fourth Claim
for Relief, identifying two counts and one “alternative
count” under state tort law, follows the same form. It alleges
malicious prosecution, false arrest and imprisonment, and
54 GIBSON V. CITY OF PORTLAND

negligence. It alleges in Paragraph 262, for example, that
“Defendants insisted upon the initiation and continuance of
criminal proceedings against plaintiffs, which ultimately
terminated in plaintiffs’ favor, had malice instituting such
proceedings, and did so without probable cause for doing
so.” This claim has greater detail with respect to the
elements of a malicious prosecution claim under Oregon
law. See Miller v. Columbia Cnty., 385 P.3d 1214, 1223 (Or.
Ct. App. 2016). But it merely realleges all the prior
paragraphs and continues to refer to “Defendants” without
identifying which defendants are responsible for the alleged
tort. For the reasons that the first three claims for relief
failed, so does the fourth.
3. Repleading
We conclude that the failures of the complaint should be
corrected. Absent a Rule 8-compliant pleading, we are left
to speculate about the causes of action pleaded by Plaintiffs.
Doing so would be improper except, as explained in the prior
section, in circumstances where we can surmise that
Plaintiffs are pleading claims implicating immunities from
suit that warrant prompt adjudication. 13
Accordingly, we hold that Plaintiffs’ complaint violated
Rule 8, and the district court acted within its discretion in
dismissing the complaint on this ground. Because we have
clarified the standards for adducing shotgun pleadings,
Plaintiffs should have an opportunity to replead their

13
We do not, as the dissent suggests, hold that “future courts applying
the shotgun pleading rule . . . must evaluate issue-by-issue which matters
are appropriately resolved despite an invalid pleading and which are
not.” Dissenting Op. at 73. Rather, as we have discussed, an otherwise
invalid pleading that implicates immunities from suit presents a unique
circumstance warranting early resolution of those issues.
GIBSON V. CITY OF PORTLAND 55

complaint, consistent with these standards and the prior
section concerning immunity from suit. We affirm the
judgment of the district court dismissing the complaint but
reverse with respect to the court’s decision to dismiss certain
claims with prejudice. Subject to the limited dismissals
articulated below, Plaintiffs may replead their complaint to
comply with Rule 8. 14
IV. CONCLUSION
We AFFIRM the district court’s dismissal with
prejudice of all claims against MCDA on the basis of
sovereign immunity. We AFFIRM the district court’s
dismissal with prejudice of all claims against District
Attorneys Underhill and Schmidt on the basis of absolute
prosecutorial immunity. We AFFIRM the district court’s
dismissal with prejudice of all claims against Deputy District
Attorney Hughey on the basis of absolute prosecutorial
immunity. We REVERSE the district court’s dismissal of
the claims against Deputy District Attorney Kalbaugh,
against whom Plaintiffs may replead their claims related to
his allegedly false affidavits. We REVERSE the district
court’s dismissal with prejudice of Plaintiffs’ claims against

14
The dissent’s concern that our holding today will somehow result in
an additional and unnecessary appeal on the “substantive issues that the
district court has already decided” is unwarranted. Dissenting Op. at 58,
76. Despite discussing the merits of Plaintiffs’ claims, the district court
dismissed many of those claims without prejudice and expressly granted
Plaintiffs the opportunity to replead them. And the dissent does not argue
that these dismissals should have instead been with prejudice. In other
words, regardless of whether we affirm those dismissals on the merits or
on Rule 8 grounds, Plaintiffs will still have an opportunity to replead
those claims, the district court will again have to rule on them, and
Plaintiffs may again choose to appeal them to this court.
56 GIBSON V. CITY OF PORTLAND

Multnomah County to the extent they are based on
Multnomah County’s own acts or omissions.
We AFFIRM the district court’s judgment that the
complaint is otherwise inadequate under Rule 8, but
REMAND to permit Plaintiffs to replead their claims as
follows:

(1) Against Deputy District Attorney
Kalbaugh, Plaintiffs may replead all
claims related to his allegedly false
affidavits.
(2) Against Multnomah County, Plaintiffs
may replead all claims to the extent they
are based on Multnomah County’s own
acts or omissions.
(3) Against Detective Traynor, Plaintiffs may
replead all claims to the extent they do not
arise from his grand jury testimony.
(4) Against the City of Portland, Plaintiffs
may replead all claims.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART; REVERSED IN PART;
REMANDED IN PART.
GIBSON V. CITY OF PORTLAND 57

FORREST, Circuit Judge, concurring in part and dissenting
in part.
The majority errs in sua sponte adopting the “shotgun
pleading” rule. It is both unnecessary to resolve this case and
unwise. None of the parties advocated for this rule, and the
pleading requirements in the Federal Rules of Civil
Procedure are sufficient as written. Rather than meddling
with pleading requirements, we should have focused on the
arguments that the Defendants pressed and that the district
court decided.
To be clear, I agree with the majority on the following
points: (1) the Multnomah County District Attorney’s Office
and its employees (Prosecutor Defendants) have immunity
except as relates to the allegations that Deputy District
Attorney Brad Kalbaugh filed a false affidavit when he
applied for an arrest warrant; (2) the claims asserted against
Multnomah County, which are all based on the immune acts
of the Prosecutor Defendants, necessarily fail; and
(3) Portland Police Detective Christopher Traynor has
immunity in relation to his grand-jury testimony. But
because the majority remands several of Plaintiffs’ claims
for repleading under its new shotgun-pleading rule, it does
not address other arguments that Defendants raised in
seeking dismissal of Plaintiffs’ complaint. I would reach
those additional issues.
Below, I address both why we should not adopt the
shotgun-pleading rule and how I would resolve the issues
that the majority sidestepped. On the latter point, I would
hold that the district court (1) correctly dismissed the state-
law malicious-prosecution claims brought against the City
Defendants because Plaintiffs failed to allege that pressure
exerted by the City was the determining factor in the District
58 GIBSON V. CITY OF PORTLAND

Attorney’s Office’s decision to prosecute Plaintiffs, and
(2) erred in dismissing the federal-law claims asserted
against the City Defendants as untimely.
A. “Shotgun Pleadings”
The majority’s sua sponte adoption of the shotgun-
pleading rule is error for at least two reasons. First, this rule
is not before us. No party relied on it or asked us to adopt it.
Federal Rule of Civil Procedure 8 and the adequacy of the
pleading was also extraneous to the district court’s decision.
See Bautista v. Los Angeles County, 216 F.3d 837, 842–44
(9th Cir. 2000) (Reinhardt, J., concurring separately)
(faulting the lead opinion for producing a “general
educational guide” about pleading rules when no party
requested one, and the district court did not rely on pleading
rules in dismissing the case). Indeed, the majority’s
intervention here creates a substantial likelihood (if not
certainty) that Plaintiffs will appeal again raising the same
substantive issues that the district court has already decided,
and that are currently presented for our decision. Second, to
the extent a pleadings analysis is warranted here, it should
turn on the text of the Federal Rules of Civil Procedure, not
a new judicially imposed standard.
1. Party Presentation
Start with the easiest reason not to embark on the
majority’s shotgun-pleadings journey: the parties didn’t ask
us to. “As a general rule, our system is designed around the
premise that parties represented by competent counsel know
what is best for them, and are responsible for advancing the
facts and argument entitling them to relief.” United States v.
Sineneng-Smith, 590 U.S. 371, 375–76 (2020) (citation
modified) (reversing this court for drastically exceeding
the issues presented by the parties); Clark v. Sweeney, 607
GIBSON V. CITY OF PORTLAND 59

U.S. ---, 2025 WL 3260170, at *1 (Nov. 24, 2025) (per
curiam). “Counsel almost always know a great deal more
about their cases than we do,” Greenlaw v. United States,
554 U.S. 237, 244 (2008) (citation omitted), and we forego
the benefits of our adversarial system when we lose sight of
that fact.
There are three groups of defendants here: the Prosecutor
Defendants, Multnomah County, and the City Defendants.
Only one of these groups—the Prosecutor Defendants—
raised a pleading challenge. And in doing so, they relied only
on the text of Rule 8; the idea of shotgun pleading is absent
from their arguments.
The district court on its own referenced the concept of
shotgun pleadings in concluding that Plaintiffs’ allegations
against the Prosecutor Defendants failed to satisfy Rule
8(a)(2), but it did not base its dismissal of Plaintiffs’
complaint on pleading grounds, shotgun or otherwise.
Rather, it granted the Prosecutor Defendants’ motion to
dismiss based on Eleventh Amendment and prosecutorial
immunity. And it did not permit repleading on any of the
claims asserted against these Defendants “because
amendment would not cure the defects.” So, as far as I can
tell, the district court’s Rule 8 evaluation did not contribute
to its final judgment. This is not a record that invites us to
consider the shotgun-pleading rule.
The majority disagrees, asserting that the parties’ failure
to discuss shotgun pleadings “does not prevent us from
addressing the substance of the district court’s ruling and the
parties’ arguments.” Maj. Op. 36 n.9. This does not make
sense because, as just explained, the substance of the district
court’s ruling on the claims asserted against the Prosecutor
Defendants was immunity. And the adequacy of Plaintiffs’
60 GIBSON V. CITY OF PORTLAND

allegations does not go to the substance of any of the other
Defendants’ arguments because they did not raise this issue.
The party-presentation principle of course does not
hamstring courts from “identify[ing] and apply[ing] the
correct legal standard, whether argued by the parties or not.”
In re Nance, 156 F.4th 961, 969 (9th Cir. 2025) (citation
omitted); Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99
(1991). But identifying law that the parties missed is
different from creating new law that the parties didn’t ask
for. See Sineneng-Smith, 590 U.S. at 376 (“Courts are
essentially passive instruments of government. They do not,
or should not, sally forth each day looking for wrongs to
right.”) (citations omitted); see also Zakora v. Chrisman, 44
F.4th 452, 486 (6th Cir. 2022) (Sutton, C.J., concurring in
part and dissenting in part) (“[A] case is not a Greek play in
which all-seeing judges, unbidden, come to the rescue by
creating solutions that the parties do not seek.”). The latter is
what the majority does here. The majority cannot be right in
saying both that the federal rules are synonymous with the
shotgun-pleading rule and that we need to adopt a new
shotgun-pleading rule. Compare Maj. Op. at 37 with id. at
43. The federal rules either include the shotgun-pleading rule
that the majority adopts or they do not. And as I explain
below, they do not.
Finally, even if one were inclined to stretch the
adversarial principles that animate the party-presentation
principle to decide an unaddressed issue of law, there are
important reasons not to do so here. Sua sponte development
of law is inherently problematic because anytime a court
ventures beyond the issues presented by the parties there is
a risk of unfairness. Cf. Snider v. Melindez, 199 F.3d 108,
113 (2d Cir. 1999) (“[P]roviding the adversely affected party
with notice and an opportunity to be heard plays an
GIBSON V. CITY OF PORTLAND 61

important role in establishing the fairness and reliability of
the order.”); see also United Ass’n Local 38 Pension Tr. Fund
v. Aetna Cas. & Sur. Co., 790 F.2d 1428, 1432 n.3 (9th Cir.
1986) (Norris, J., concurring in part and dissenting in part)
(pointing out that Ninth Circuit General Order 4.2, which
requires panels to give “serious consideration” to additional
briefing when raising new issues, “protects the integrity of
the adversary process by ensuring that each party has a full
and fair opportunity to address the relevant issues.”). For
example, Plaintiffs may have worthy counterarguments to
the propriety of the shotgun-pleading rule that, if presented,
could aid the court in making a fully informed decision. But
Plaintiffs had no reason to raise those arguments where none
of the Defendants advocated for the shotgun-pleading rule. 1
The majority’s freelancing in the context of pleading
rules is also concerning. If it were developing a substantive
area of law, any missteps might be confined to like cases.
But pleading rules affect each of the roughly 50,000 civil
cases filed in the district courts in our circuit every year. 2
This context should counsel caution, not spontaneous legal
developments without full adversarial testing. After all, we
“do not sit as self-directed boards of legal inquiry and
research.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.
1983) (Scalia, J.).

1
The majority observes that district courts within this circuit regularly
apply a shotgun-pleading rule. See Maj. Op. 43–44 & n.10. If that is true,
then it should be easy enough to wait for an appropriate case to test the
validity of this rule.
2
See United States Courts, U.S. District Courts–Civil Federal Judicial
Caseload Statistics (Mar. 31, 2024), https://www.uscourts.gov/data-
news/data-tables/2024/03/31/federal-judicial-caseload-statistics/c-1
[https://perma.cc/8VS4-M549].
62 GIBSON V. CITY OF PORTLAND

2. Substantive Concerns
I hesitate to discuss the merits of the shotgun-pleading
rule when there has been no adversarial presentation on this
issue, but I am compelled to because the majority fully
embraces the rule. My concerns largely boil down to this: the
Federal Rules of Civil Procedure, as written, are sufficient,
and the shotgun-pleading rule undermines some of the
purposes animating those rules. The majority’s reasoning for
adopting this rule is also flawed.
a.
Federal Rule of Civil Procedure 8 provides the governing
pleading standard. A claim for relief must contain:

(1) a short and plain statement of the grounds
for the court's jurisdiction, unless the court
already has jurisdiction and the claim needs
no new jurisdictional support;
(2) a short and plain statement of the claim
showing that the pleader is entitled to relief;
and
(3) a demand for the relief sought, which may
include relief in the alternative or different
types of relief.

Fed. R. Civ. P. 8(a). “No technical form [of pleading] is
required.” Fed. R. Civ. P. 8(d)(1). Rule 8 is buttressed by
Rule 10, which allows incorporation by reference, Fed. R.
Civ. P. 10(c), and instructs that “each claim founded on a
separate transaction or occurrence” be stated in a separate
count when “doing so would promote clarity,” Fed. R. Civ.
P. 10(b). Rounding things out is Rule 12(e), which allows a
responding party to seek a more definite statement when a
GIBSON V. CITY OF PORTLAND 63

pleading is “so vague or ambiguous that the party cannot
reasonably prepare a response.” Fed. R. Civ. P. 12(e); see
also Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513–14
(2002) (interpreting “Rule 8(a)’s simplified notice pleading
standard” in the context of its “inextricabl[e] link[]” with
Rule 12(e)).
I just recounted the most salient pleading rules in one
paragraph. That is not an accident. The pleading standards
codified in the Federal Rules of Civil Procedure departed
from a byzantine code-pleading era in which “one misstep
by counsel” could be outcome-determinative, regardless of
the merits. See id. at 514 (quoting Conley v. Gibson, 355 U.S.
41, 48 (1957), abrogated by Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007)). Congress thought it wise to shed the
complexities of the old regime, and it ushered in more
straightforward notice pleading. Id.; Starr v. Baca, 652 F.3d
1202, 1212 (9th Cir. 2011).
Simply put, the Federal Rules establish that, subject to a
few broad constraints, a complaint should be judged on its
merits rather than its form. Swierkiewicz, 534 U.S. at 514;
Starr, 652 F.3d at 1212. As the Supreme Court recently
counseled, it has “consistently rejected” efforts by “lower
federal courts . . . to require more information” than what is
directed by Rule 8’s plain text. Berk v. Choy, No. 24-440,
2026 WL 135974 at *4 (U.S. Jan. 20, 2026). So long as a
complaint “give[s] notice of the claim such that the opposing
party may defend himself or herself effectively,” litigation
may proceed. Starr, 652 F.3d at 1212.
The shotgun-pleading rule defies the underlying notice-
pleading principle that guided Congress and that is reflected
in the Rules that Congress enacted. The rule also seems
destined to be another example of “the problems that arise
64 GIBSON V. CITY OF PORTLAND

when judges create atextual legal rules and frameworks.”
Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 313 (2025)
(Thomas, J., concurring). Such enterprises “have a tendency
to distort the underlying statutory text, impose unnecessary
burdens on litigants, and cause confusion for courts.” Id. The
majority’s motivation for augmenting the existing rules
demonstrates the point.
The majority reasons that “the problem with shotgun
pleadings is that they make it difficult, if not impossible, for
the opposing party to formulate a response.” Maj. Op. 39–
40. I do not dispute that nebulous pleading can thwart
orderly and efficient litigation. But there is no need to “fix”
this problem by establishing a new pleading rule. The
existing rules do the necessary work while also giving
fidelity to our adversarial system. Consider Rule 12(e). The
relief it affords—requiring the pleading party to provide
more specificity and clarity—must be party driven. 3 The
party seeking clarification of a pleading also “must point out
the defects complained of and the details desired.” Fed. R.
Civ. P. 12(e) (emphasis added). Unlike other motions
provided for in the Rules, there is no provision for a court to

3
The current language of Rule 12(e) reflects the trend towards simplified
notice standards for the pleadings. As originally enacted, defendants
could move for a bill of particulars, which would become part of the
pleadings. See Fed. R. Civ. P. 12(e) (1937); see also Bill of Particulars,
Black’s Law Dictionary (12th ed. 2024) (“A formal, detailed statement
of the claims or charges brought by a plaintiff.”). That allowance became
“the subject of more judicial rulings than any other part of the rules, and
[was] much criticized by commentators, judges and members of the bar,”
not the least of which because it “served to neutralize any helpful benefits
derived from Rule 8.” Fed. R. Civ. P. 12(e) advisory committee’s note to
1946 amendment. Unsurprisingly, then, the bill of particulars was cast
aside less than a decade after the Rules were first adopted. See Fed. R.
Civ. P. 12(e) (1946).
GIBSON V. CITY OF PORTLAND 65

sua sponte direct a more definite pleading. Compare id., with
Fed. R. Civ. P. 12(f) (motion to strike), and Fed. R. Civ. P.
16 (pretrial conferences), and Fed. R. Civ. P. 56(f)(3)
(motion for summary judgment).
Some courts that have adopted the shotgun-pleading rule
honor the adversarial aspect of these procedural
requirements. For example, in Anderson v. District Board of
Trustees. of Central Florida Community College, the
Eleventh Circuit concluded that the plaintiffs’ complaint was
an impermissible shotgun pleading. 77 F.3d 364, 366 (11th
Cir. 1996). But because the defendant chose not to seek a
more detailed statement of the plaintiff’s allegations “as a
matter of strategy,” the court proceeded to consider the
merits of the district court’s ruling on the defendant’s
immunity arguments. Id. at 367. Concluding that it could not
make enough sense of the plaintiff’s allegations to determine
whether the defendant was protected by immunity, the court
affirmed the district court’s denial of the defendant’s motion
for summary judgment. Id. But see Davis v. Coca-Cola
Bottling Co., 516 F.3d 955, 984 (11th Cir. 2008) (stating that
where the defendant failed to seek a more definite statement,
the district court should have done so sua sponte). Similarly,
in Lee v. Ohio Education Association, the Sixth Circuit
concluded that the plaintiff’s complaint was an improper
shotgun pleading. 951 F.3d 386, 393 (6th Cir. 2020). But it
also addressed the substance of the plaintiff’s claim because
the defendant had not sought to clarify the pleadings and
instead moved to dismiss. Id.
The majority’s application of the shotgun-pleading rule
is not faithful to basic adversarial principles. And its concern
about responding parties being able to defend themselves
falls flat here. Each Defendant moved to dismiss the claims
asserted against it after identifying specific deficiencies in
66 GIBSON V. CITY OF PORTLAND

the Plaintiffs’ allegations. None of the defendants thought it
necessary to request a more definite statement of the
allegations against them. Even though I agree that Plaintiffs’
complaint is not a model for others to follow, the Defendants’
choice not to seek relief under Rule 12(e) is also not
surprising. As the majority concedes, Plaintiffs laid out the
facts underlying their claims in capacious detail. We can
only assume that Defendants made a strategic choice to
pursue dismissal rather than repleading, which paid off in the
district court where their motions were all granted. We
should have respected their litigation choices and simply
resolved the grounds for dismissal that they advanced.
It is concerning that the majority not only ignores the
procedure established by the Civil Rules and Defendants’
litigation choices but further uses this case as an
“opportunity to make clear that district courts do not have to
accept such shotgun pleadings.” Maj. Op. 42. That is, the
majority instructs district courts that they also need not
respect parties’ litigation choices or the adversarial
principles embedded in the Rules.
The majority roots its lesson for the district courts in their
inherent authority to control their dockets. See id. 42–45.
The majority also repeatedly cites Rule 1, which directs
courts “to secure the just, speedy, and inexpensive
determination of every action.” Fed. R. Civ. P. 1. While
district courts do “have inherent power to control their
dockets,” that power cannot “nullify the procedural choices
reserved to parties under the federal rules.” Atchison, Topeka
& Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071, 1074
(9th Cir. 1998). This makes significant that Rule 12(e) gives
only parties the ability to seek clarification of the pleadings,
unlike other rules that provide for sua sponte court
intervention. See Fed. R. Civ. P. 12(f), 16, 56(f)(3). Simply
GIBSON V. CITY OF PORTLAND 67

put, a court’s inherent authority is not a grant of power to do
all things one might consider a good idea in managing or
resolving cases. See Chambers v. NASCO, Inc., 501 U.S. 32,
44 (1991) (“Because of their very potency, inherent powers
must be exercised with restraint and discretion.”); see also
id. at 47 (“[T]he exercise of the inherent power of lower
federal courts can be limited by statute and rule.”).
b.
The majority identifies specific categories of shotgun
pleadings that it deems invalid. These categories further
demonstrate that the majority’s new standard is divorced
from the Rules.
i. Multiple Theories in a Single Count
The majority first concludes that Plaintiffs’ complaint
must be dismissed as a shotgun pleading because it asserts
claims that encompass disparate legal theories within a
single count. See Maj. Op. 47. For example, Plaintiffs assert
one 42 U.S.C. § 1983 claim that includes theories based on
the First Amendment, various provisions of the Fifth
Amendment, and the Equal Protection Clause of the
Fourteenth Amendment.
Rule 10(b) addresses the proper use of counts. If it
“would promote clarity, each claim founded on a separate
transaction or occurrence . . . must be stated in a separate
count.” Id. The transaction-or-occurrence test focuses on the
“similarity in the factual background of a claim” and
whether a claim “arise[s] out of a systematic pattern of
events.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir.
68 GIBSON V. CITY OF PORTLAND

1997) (emphasis added). 4 We apply this test flexibly,
liberally construing what constitutes the same transaction or
occurrence. For example, in Pochiro v. Prudential Ins. Co.
of Am., 827 F.2d 1246 (9th Cir. 1987), we held that an
insurance company’s claims against its former employee for
breach of an employment contract and intentional
interference with business relations based on the employee’s
alleged theft of client lists arose out of the same transaction
or occurrence as the employee’s counterclaims for
defamation based on the company calling him “a crook.” Id.
at 1250–51. 5 It did not matter that the alleged defamation
was “a bit removed” from the insurer’s attempt to stop the
employee from using the customer records, or that the legal
elements for the various claims were different. Id. It was
enough that the alleged facts were “intertwined.” Id. at 1250.
Although Plaintiffs here list disparate legal theories, they
arise out of the same factual background: the allegation that
local government actors in Portland acted in various
unlawful ways to punish Plaintiffs for their role in the Cider
Riot incident and other protests and that those actions
deprived Plaintiffs of their civil rights. Because the multiple
constitutional violations referenced in the Plaintiffs’ § 1983

4
See also 5A Wright & Miller’s Federal Practice & Procedure § 1324
(4th ed. 2025) (“[I]t seems reasonably clear that Rule 10(b) does not
make it necessary to use separate counts to state different theories of
recovery or to seek relief under separate statutory provisions.” (footnote
omitted)); 35A C.J.S. Fed. Civ. P. § 310 (2025) (“Where a series of acts
are alleged to be part of a plan to injure the plaintiff, a separation into
counts is not necessary to facilitate the clear presentation of the matters
set forth.”).
Although Pochiro concerned a state rule of civil procedure, it was
5

modeled verbatim after the federal rule and we interpreted it in lockstep
with the federal transaction-or-occurrence test. 827 F.2d at 1249–50.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11247976. Public record. Not legal advice.