Community House, Inc. v. City of Boise, Idaho

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COMMUNITY HOUSE, INC.; MARLENE 

K. SMITH; GREG A. LUTHER; JAY D.

BANTA,

Plaintiffs-Appellees,

v.

CITY OF BOISE, Idaho; BOISE CITY

COUNCIL,

Defendant, No. 09-35780

and

DAVID H. BIETER, Mayor;

 D.C. No.

1:05-cv-00283-BLW

MARYANN JORDAN; ELAINE CLEGG; OPINION

VERNON BISTERFELDT; DAVID

EBERLE; JEROME MAPP; ALAN

SHEALY; BRUCE CHATTERTON,

Director, Planning and

Development Services; JIM

BIRDSALL, Manager, Housing and

Community Development,

Defendants-Appellants.



Appeal from the United States District Court

for the District of Idaho

Ted Stewart, District Judge, Presiding

Argued and Submitted

May 24, 2010—Pocatello, Idaho

Filed October 6, 2010

Before: Alex Kozinski, Chief Circuit Judge, Stephen S. Trott

and N. Randy Smith, Circuit Judges.

16767

16768 COMMUNITY HOUSE, INC v. BIETER

Opinion by Judge Trott;

Concurrence by Chief Judge Kozinski

16772 COMMUNITY HOUSE, INC v. BIETER

COUNSEL

Howard A. Belodoff, Idaho Legal Aid Services, Inc., Boise,

Idaho, for the plaintiffs/appellees.

Phillip J. Collaer, Anderson, Julian & Hull LLP, Boise, Idaho,

for the defendants/appellants.

OPINION

TROTT, Circuit Judge:

The lawsuit underlying this appeal arises from the City of

Boise, Idaho’s communal assumption almost twenty years ago

of shared responsibility for the care and housing of a vulnera-

ble sector of its population — the homeless.

In connection with the City’s legislative objectives, Com-

munity House, Inc. (“CHI”) leased from the City in 1994 as

part of a public/private partnership a building that CHI oper-

ated as a homeless shelter and as low-income transitional

housing. In 2004, CHI and the City agreed to terminate the

lease agreement and CHI’s right to manage the building. In

2005, the City leased the building to the Boise Rescue Mis-

sion (“BRM”), an organization that operates the facility as a

homeless shelter for single men and that includes in its activi-

ties Christian religious services and pre-meal prayers. In

2007, the BRM purchased the facility pursuant to an option

contained in the lease agreement.

After CHI agreed to terminate its lease but before the City’s

new lease with the BRM, CHI, along with several individual

plaintiffs, filed a civil rights complaint under 42 U.S.C.

§ 1983 against the City and the Boise City Council, alleging,

among other things, that the anticipated lease of the building

to the BRM violated the First Amendment’s anti-

COMMUNITY HOUSE, INC v. BIETER 16773

Establishment Clause and the federal Fair Housing Act

(“FHA”). CHI additionally named as defendants the following

individuals: (1) David Bieter, the mayor of the City of Boise;

(2) Maryann Jordan, Elaine Clegg, Vernon Bisterfeldt, David

Eberle, Jerome Mapp, and Alan Shealy, members of the Boise

City Council; (3) Bruce Chatterton, the Director of Planning

and Development Services; and (4) Jim Birdsall, the Manager

of Housing and Community Development.1

The City, the City Council, and the individual defendants

moved for summary judgment. Of relevance to this limited

appeal, the district court denied summary judgment to the

individual defendants as a group, determining that they were

not entitled either to legislative or qualified immunity. Cmty.

House, Inc. v. City of Boise, 654 F. Supp. 2d 1154, 1165-66

(D. Idaho 2009) (“Cmty. House II”), The court determined

that genuine issues of material fact precluded qualified immu-

nity on the Establishment Clause claims, but because the indi-

vidual defendants did not explicitly raise at that time a

qualified immunity defense with respect to the FHA claims,

the court did not consider that issue. Id.

We are now faced with the second interlocutory appeal in

this case. Because the individual defendants appeal from a

denial of summary judgment on the basis of immunity, we

have jurisdiction pursuant to 28 U.S.C. § 1291 and the collat-

eral order doctrine. Robinson v. York, 566 F.3d 817, 821 (9th

Cir. 2009).

We hold that Mayor Bieter and the members of the City

Council are entitled to absolute legislative immunity for their

actions in promoting and approving the lease and sale of

Community House to the BRM. Additionally, municipal

1

For convenience, we refer to all of the Plaintiffs-Appellees collectively

as “CHI.” We refer to Boise City and the Boise City Council collectively

as “the City.” We refer to the mayor, the Boise City Council members, and

the two municipal employees collectively as “the individual defendants.”

16774 COMMUNITY HOUSE, INC v. BIETER

employees Chatterton and Birdsall as individuals are entitled

to qualified immunity because at the time the City approved

the lease and sale, a reasonable official would not have known

that such actions would violate the Establishment Clause or

the FHA. We therefore reverse and remand to the district

court for further proceedings consistent with this opinion.

I

BACKGROUND

A. The History of Community House

Boise, like many other cities, has experienced over time a

dramatic increase in its homeless population. The general

population of Boise increased by more than 22% in the late

1980s, driving up the local cost of housing. Because Boise’s

employment opportunities failed to keep up with its growing

population, the number of homeless grew quickly. Surveys

conducted in the early 1990s showed a 20% increase in the

Boise homeless community. As recognized by CHI in its Sec-

ond Amended Complaint, Boise was in the throes of a “home-

less crisis,” to which the citizenry responded in dramatic

fashion. CHI describes these efforts in Paragraphs 42-46 of its

Second Amended Complaint:

42. . . . . In 1992, Director Michael Hoffman spon-

sored actress Sally Fields [sic], to perform a play that

raised over $70,000. The Rotary Club of Boise com-

mitted $50,000 and $25,000 in in-kind services to

address the homeless crisis in Boise.

43. In June 1992, the Community Assistance Cen-

ter, Inc. was incorporated and Bylaws were adopted

for the purpose of raising donations to develop a full

continuum of programs and services and to address

the needs of the homeless and to establish a decent,

safe, and sanitary community shelter.

COMMUNITY HOUSE, INC v. BIETER 16775

44. In January 1993, the Articles were amended to

change the name of the corporation to Community

House, Inc. In August 1993, the Articles were

amended to clarify the purposes of the corporation.

45. Social service agencies, community leaders,

and the corporate community participated in fun-

draising, including Terry Reilly Health Clinic, Boise

City/Ada County Housing Authority, Job Service of

Idaho, Idaho Department of Health and Welfare,

YWCA, Idaho Vocational Rehabilitation, Social

Security Administration, Veterans Administration

Medical Center, El-Ada Community Action Agency,

United Way of Ada County, Junior League, Child

Care Connections, Salvation Army, City of Boise,

Boise Police Department, St. Luke’s Hospital, Boise

Neighborhood Housing Services, Ada County Com-

munity Services, Central District Health Services,

Channel 7 KTVB, Oppenheimer Development,

WestOne Bank, H.W. Morrison Foundation, and

FUNDSY.

46. In subsequent years, case and in-kind contri-

butions from individuals and corporations, including

Albertsons and Hewlett-Packard, amounted to mil-

lions of dollars.

In the early 1990s, the City of Boise formally joined this

community effort and began working with CHI to plan,

design, and construct a new facility to help meet the needs of

the homeless population of Boise. On February 8, 1994, the

City Council passed Resolution 12635, which, according to

CHI’s Second Amended Complaint, “recognized the impor-

tance of establishing a facility for homeless and very low

income individuals.” The Resolution set forth the City’s

agreement to enter into a partnership with CHI as well. The

same day, the City and CHI signed a Memorandum of Under-

standing (“MOU”) to “enter into a cooperative public/private

16776 COMMUNITY HOUSE, INC v. BIETER

partnership with the primary objective being to provide hous-

ing and comprehensive services for the homeless in our com-

munity.” The new facility, to be named Community House,

would be located in Boise near downtown at the corner of

13th Street and River Street. The parties envisioned that the

City would own the building and that CHI would lease it from

the City. CHI would operate the facility as “a homeless shel-

ter and resource center . . . [that would] provide emergency,

temporary, and transitional housing for homeless families and

individuals.”

Both the City and CHI contributed to the construction of

Community House. The City contributed over $1.6 million in

Community Development Block Grant (“CDBG”) and Home

Investment Partnership Program (“HOME”) funds, and CHI

contributed nearly $400,000 in private donations and over

$650,000 from a loan under the Federal Home Loan Bank

(“FHLB”) Affordable Housing Program.

On November 1, 1994, the City Council passed Resolution

13056, which approved the lease of Community House to

CHI. The City agreed to lease the building for $1 per year for

fifty years, to keep and maintain the facility in good condi-

tion, and to make needed repairs.

On November 30, 1994, the parties entered into an Operat-

ing Agreement, in which the City and CHI agreed “to work

closely together in developing a comprehensive strategy to

resolve the problem of homelessness in the City of Boise.”

The City granted CHI the right to manage the facility for sixty

months, with a renewal term of sixty months. Thus, if

renewed, the Operating Agreement would expire by its own

terms on November 30, 2004.

Throughout CHI’s management, Community House con-

tained an emergency shelter, transitional housing, and single

residence occupancy apartments (“SROs”). Residents

included men, women, and families. Some occupants paid

COMMUNITY HOUSE, INC v. BIETER 16777

rent, and the City realized around $125,000 per year in rental

income. From 1995 to 2003, the City gave CHI over $200,000

per year in CDBG and HOME funds to run Community

House, totaling more than $2 million. The City and CHI

renewed the Operating Agreement after the initial five-year

term expired, and CHI managed the building for nearly ten

years, apparently without any major disagreements with the

City.

Unfortunately, the harmonious relationship between the

City and CHI did not last. Disputes began to arise between the

parties regarding each other’s obligations under the various

agreements. In a February 2004 letter to the City, CHI Presi-

dent Deanna Watson described its situation as a “financial cri-

sis,” saying, “To put it bluntly, we are just about out of

money.” In December 2002, CHI fired its executive director.

Watson described the City and CHI’s business relationship

during this time as follows:

The [C]ity, concerned about the administrative

issues and potential legal liabilities, withheld federal

subcontracts with the message to the Board, that

until it saw adequate progress toward resolution and

stability of operations, it would refuse to enter into

new binding contracts between the City and Com-

munity House.

Enter the Boise Rescue Mission. The BRM is a private

Christian organization that has provided services to the home-

less in southwest Idaho since 1958. The BRM’s chief goal is

to “provide food, shelter, and clothing, along with practical

programs of education, Christian teaching, and work disci-

pline with the aim of returning the poor, needy, and homeless

to society as self-sufficient, productive citizens.”

B. The City Assumes Management of Community House

In mid-2003, while the City and CHI were still trying to

work out their problems, the BRM approached the City about

16778 COMMUNITY HOUSE, INC v. BIETER

purchasing Community House, and the City requested that the

BRM submit a proposal. On August 1, 2003, the BRM tenta-

tively proposed to operate the building as an emergency

homeless shelter; it would also contain single residency occu-

pancy and transitional apartments that would be occupied by

those in a year-long substance abuse recovery program or

employment program. The BRM stated it would run Commu-

nity House as a men’s shelter, pursuant to its policy of hous-

ing men and women separately.

On February 2, 2004, Watson wrote to the City on behalf

of CHI, requesting $50,000 in short-term financial help to

make it through the month. On February 6, Jan Blickenstaff,

the Manager for the City Department of Housing and Com-

munity Development, responded to Watson’s and CHI’s

request. Blickenstaff informed CHI that the City had concerns

about CHI’s solvency, reporting, fiscal controls and compli-

ance, and delinquent audits and reimbursement requests, and

he asked CHI to share with the City its plan for solvency. In

order for the City to consider the request for funding, Blicken-

staff stated, the City would need:

1. A business plan that includes cash flow projec-

tions and a sources and uses statement for at least the

next sixty days. . . .

2. A disclosure of current payables and delinquency

status including insurance, utilities, payroll, taxes,

workman’s comp insurance, etc. . . .

3. The staffing plan with position descriptions for the

new employees and their résumés. [Please note that

fundraising is not an eligible federal grant activity.]

The City and CHI eventually agreed that replacing CHI

with a short-term, third-party manager of the building would

help keep Community House open. That interim manager

would be the Salvation Army. On February 19, 2004, the CHI

COMMUNITY HOUSE, INC v. BIETER 16779

Board voted to support the interim plan and to turn over to the

City overall operational responsibility for Community House.

The City agreed to “bear all costs and liabilities not covered

by the interim management associated with the operation and

upkeep of the facility during the interim period.” By signing

a March 18, 2004 letter from the mayor’s office recounting

these agreements, Watson agreed that any rents received dur-

ing this interim period would be paid to the City as reimburse-

ment for the approximately $55,000 that the City had paid to

cover CHI’s expenses. The CHI Board also agreed with the

City that a committee should be formed to “provid[e] input

and expertise in developing a permanent plan for management

of the facility.”

This interim solution, however, was short-lived. The Salva-

tion Army did take over control of Community House but, for

reasons unclear from the record, left after only two weeks. For

the next year and a half, the City itself operated the facility,

spending around $80,000 per month to keep Community

House up and running.

C. The Advisory Committee

As agreed, the mayor formed the Community House Ad

Hoc Advisory Committee (“Advisory Committee”) to “ex-

plore strategies that may enhance the role and mission of

Community House.” The Advisory Committee’s goal “was to

develop recommendations that could assist the City of Boise

address future challenges of homelessness and provide a new

framework for defining the potential contributions that Com-

munity House could make to this effort.” There were six

members of the Advisory Committee with a wide variety of

backgrounds: (1) Uwe Reischl, a university professor and

Chair of the Advisory Committee; (2) Greg Allen, an archi-

tect; (3) Jill Dunn, a corporate manager; (4) John Traylor, a

county executive administrator; (5) Mike Wilson, a health

care advocate; and (6) Deanna Watson, President of CHI.

16780 COMMUNITY HOUSE, INC v. BIETER

The Advisory Committee issued its report to the City and

the mayor on May 6, 2004. Recognizing that homelessness is

“an enduring presence in American society” and that the

homeless “are often forced to use community services and

public resources in very inefficient and costly ways,” the

Advisory Committee suggested that the City re-examine the

role of Community House as both an emergency homeless

shelter and a low-income transitional facility. Instead of con-

tinuing as a mixed-use facility, the Advisory Committee rec-

ommended that Community House function “as an asset in

meeting basic emergency needs of the homeless in the City of

Boise.” The Advisory Committee advised also that sharing

emergency shelter services with organizations such as the

BRM, the Salvation Army, and local churches might be bene-

ficial. The report recognized that the sale of Community

House ought to be considered. The report was not intended to

be binding on City officials, but to help Mayor Bieter “in

evaluating [the City of Boise’s] alternatives for Community

House in the future.”

D. The Lease and Sale of Community House to the BRM

In June 2004, the City and CHI entered into a new contract,

a Management Agreement, which terminated CHI’s lease and

the Operating Agreement and transferred to the City all assets

of Community House. The parties agreed that the City would

pay all management costs from March 2, 2004 “until the pro-

grams are transferred to other entities,” manage Community

House until a long-term plan could be developed, and take

over responsibility on the FHLB loan.

Undaunted, the City began exploring its options for such a

plan in early 2005, when it published a Request for Inter-

est/Request for Proposal (“RFI/RFP”). The RFI/RFP sought

proposals from any party interested in direct management or

ownership of three facilities and programs: Community

House, the soup kitchen run out of Baltes Community Café,

and MelloDee Thornton Childcare Center.

COMMUNITY HOUSE, INC v. BIETER 16781

Phase 1 proposals were due March 7, 2005. Responding

parties were required to explain their interest, describe the

team that would implement the plan, and discuss “funding and

other resources necessary to transition the services and pro-

vide them on an ongoing basis.” A short list of organizations

would then be invited to submit Phase 2 proposals, which

were to contain timetables, funding sources, proposed bud-

gets, and a detailed staff and management plan.

The City received Phase 1 proposals from several organiza-

tions, including the BRM, Giraffe Laugh Day Care, Support-

ive Housing and Innovative Partnerships, Inc. (“SHIP”), and

El Ada, Inc. On February 25, 2005, CHI submitted a very

short proposal stating that “Boise City . . . must be [an] ongo-

ing funding partner[ ] beyond the distribution of federal grant

money,” but it did not actually contain any funding informa-

tion. CHI submitted a more complete proposal on April 17,

2005, six weeks after the Phase 1 deadline. In this document,

CHI proposed “to operate the Community House facility as it

was originally envisioned with some alterations.”

The BRM proposed to renovate Community House into a

shelter for single men, who were at the time housed at the

BRM’s facility on Front Street. If the City accepted, the pro-

posal would require the City to negotiate exclusively with the

BRM. Apparently concerned with the BRM’s men-only pol-

icy and its religious services, Chatterton, the Director of City

Planning and Development Services, asked for more informa-

tion on these issues. In a May 11, 2005 letter, he requested

clarification on how the BRM’s policies would affect the

“emergency shelter services” that the BRM proposed to oper-

ate at the facility. He asked for statistical and other informa-

tion on the BRM’s women’s shelter. Chatterton also informed

the BRM that the City could not negotiate exclusively with

the BRM for the purchase of the facility at that time because

a public auction was required by state statute.

In response to Chatterton’s letter, the BRM assured the City

that the shelter was available to anybody, “regardless of their

16782 COMMUNITY HOUSE, INC v. BIETER

religious affiliation.” The BRM also explained why its male

guests slept in the Front Street shelter, while women and chil-

dren slept at the City Light shelter:

The homeless population is [a] difficult population

to serve under any circumstance. The problems are

exacerbated in a mixed gender shelter environment.

Further, it is not always appropriate to have families,

particularly families with young or vulnerable chil-

dren, to sleep in the same facility as other members

of the homeless population. We believe that our sep-

arate shelter facilities for men and women is one of

the reasons why we have fewer police calls at our

facilities than Community House.

Defendant Chatterton called the Boise City Police, verified

that the Front Street shelter had nearly 60% fewer police calls

than Community House, and passed this information on to the

City Council.

On May 31, 2005, the City informed the BRM that it could

not accept its proposal at that time. Because the proposal con-

templated a sale of Community House, the City described the

steps it would have to take if it decided to sell the property

and stated that the City Council would soon be voting on a

resolution to move forward pursuant to those requirements.

In compliance with Idaho law, the City Council passed

Ordinance 6402 on June 29, 2005, which represented a super-

seding policy approach to this issue. The Ordinance did three

things. First, the ordinance set forth the City’s decision, as

required by section 50-1401, to declare Community House

surplus property that was underutilized by the City and no

longer necessary for public purposes. The City gave the fol-

lowing reasons for its decision: (1) the City’s core mission did

not include providing emergency shelter services; (2) there

was a shortage of emergency shelters in the Boise area, and

use of Community House as an emergency shelter “could

COMMUNITY HOUSE, INC v. BIETER 16783

meet the needs of the community”; (3) a private entity trained

to manage an emergency shelter would be better able to man-

age the facility as an emergency shelter; and (4) converting

the property to a use that was “within the core mission of the

City” would cost more than the City could pay.

Second, as required by section 50-1402, the City set a mini-

mum value for the property: $2.5 million.

Third, the City placed a deed restriction on the property

which reflected its continuing formal concern for the home-

less, a restriction which required that the facility be used for

ten years “as a soup kitchen and shelter for the homeless.” On

July 12, 2005, the City amended the deed restriction by pass-

ing Ordinance 6404. Ordinance 6404 required that the prop-

erty be used for ten years as a soup kitchen and as “a shelter

for a minimum of 66[ ] single, homeless[ ] men, ages[ ] 18

years or older.” This Ordinance reiterated the City’s intent to

ensure the existence of a shelter for the homeless, saying,

“There is a shortage of structures designed as emergency shel-

ters. Therefore, while the structure would be underutilized by

the City, it could meet the needs of the community if it was

surplused.” Moreover, Ordinance 6404 required that the

building be operated in a manner designed to protect “the

immediate neighborhood and the community as a whole”

from harm and from loitering.

As required by sections 50-1402 and 50-1403, the City

published a notice of sale, informing potential bidders that the

auction would take place on July 15, 2005. Before the auction

the BRM informed the City that it was not planning to bid but

that it would consider purchasing the property later if “the

price and terms of purchase [are] acceptable.”

On behalf of CHI, then-President Sue Cobley made the

only bid at the auction. CHI offered to buy the property for

$2.5 million of its “equitable ownership interest” in Commu-

nity House, including its fixtures and improvements, personal

16784 COMMUNITY HOUSE, INC v. BIETER

property, and accounts. Cobley alleged in an affidavit that

“auction officials accepted the Community House Inc. bid at

the auction,” but that in a July 26, 2005 meeting, “the City

Council rejected the bid, and refused to complete the transfer

in accordance with the Ordinance requirements.” Chatterton

stated in a memorandum to the mayor and council members

that CHI’s bid “was non-conforming to the auction require-

ments” and recommended the Council find there were no

responsive bids at the auction. Chatterton stated, “CHI has not

demonstrated that they have ‘equitable interest’ in the Com-

munity House property” sufficient to pay for the facility.

Acting within its lawful authority under section 50-1403,

the City decided to negotiate a lease, including a purchase

option, with the BRM. In those negotiations, the BRM wanted

the same $1 rent that CHI had had, while the City asked for

market rate. The BRM initially asked for an option price of

$1.8 million.

The City and the BRM executed a lease on September 2,

2005. The initial lease term was less than a year, with nine

renewal terms of one year each. At first the BRM would pay

$1 per year in rent, which would escalate to market rent after

five years. The option price was $2 million if exercised by

March 31, 2007. After that date, the price increased to around

$2.7 million. The City retained no power to exercise any man-

agement or control over the BRM or the facility.

Section 5.2 of the lease required the BRM to use the facility

as an emergency homeless shelter and a soup kitchen.

Although these were the only two services the lease required,

the BRM was authorized to use the building in other ways,

such as “general residential uses” and programs for substance

abuse recovery. Minutes of a BRM Board of Directors meet-

ing show that by August 9, 2005, the BRM was still consider-

ing charging rent for “SROs on the top floor.”

The City Council formally adopted Resolution 18765,

which approved the lease to the BRM. The Resolution

COMMUNITY HOUSE, INC v. BIETER 16785

required that the BRM operate the facility “on the terms gen-

erally set forth in Boise City Ordinance No. 6404,” which

contained the single-men-only restriction. The City closed

Community House on September 6, 2005. The BRM

reopened the facility in October and renamed it the River of

Life Rescue Mission.

The City repaid CHI’s outstanding FHLB loan and, “by

doing so, obtained a release of liability on behalf of both the

City of Boise and CHI.” The BRM exercised its purchase

option on January 9, 2007.

E. Litigation

CHI filed suit the same day as the auction in July 2005. The

district court denied in part its request for a preliminary

injunction, but a previous panel of this court reversed and

remanded for reconsideration. Cmty. House, Inc. v. City of

Boise, 490 F.3d 1041 (9th Cir. 2007) (“Cmty. House I”).

The initial question in the previous appeal was whether the

FHA, which applies only to “dwellings,” applied to Commu-

nity House. Id. at 1048 n.2. We noted that the Ninth Circuit

had “never squarely addressed the issue of whether all tempo-

rary shelters fit within the [FHA’s] definition of ‘dwelling,’ ”

but did not decide the issue. Id. Based on evidence that Com-

munity House (under CHI’s control) generated up to

$125,000 in annual rent from the transitional housing units

and SROs, in which the occupants resided for up to a year and

a half, we had “little trouble concluding that at least part of

the facility” was intended as a residence and that therefore the

FHA applied. Id.

We held that, because the single-men-only requirement

contained in Ordinance 6404 was facially discriminatory, CHI

had made out a prima facie case of intentional discrimination.

Id. at 1050. Recognizing that the FHA does not prohibit every

intentionally differential treatment and that “[w]e ha[d] not

16786 COMMUNITY HOUSE, INC v. BIETER

previously adopted a standard for determining the propriety or

acceptability of justifications for facial discrimination under

the [FHA],” we followed the formulation espoused by the

Sixth and Tenth Circuits:

To allow the circumstance of facial discrimination

. . . a defendant must show either: (1) that the restric-

tion benefits the protected class or (2) that it

responds to legitimate safety concerns raised by the

individuals affected, rather than being based on ste-

reotypes.

Id. The only evidence the City had submitted regarding safety

concerns was an affidavit from Roscoe asserting that there

were fewer police calls at the BRM’s single-sex facilities than

at Community House. Id. at 1051. Although this was insuffi-

cient at the time to satisfy our newly-adopted analysis for

facially discriminatory policies, we recognized that, “at a later

stage in this litigation, the City may be able to provide evi-

dence to establish that its men-only policy is indeed justified

by legitimate safety concerns.” Id.

We held also that CHI’s Establishment Clause allegations

— that the lease and sale of Community House to the BRM

constituted religious indoctrination by the government —

were sufficient to support a preliminary injunction. Id. at

1059.

CHI then filed a Second Amended Complaint on December

28, 2007. On July 29, 2009, the district court granted sum-

mary judgment to all of the defendants on CHI’s claims under

the Due Process Clause, the Uniform Relocation Assistance

and Real Property Acquisitions Policy Act, and the Home

Investment Partnership Act. Cmty. House II, 654 F. Supp. 2d

at 1165, 1172. In addition, the district court granted the defen-

dants summary judgment on CHI’s FHA claims for religious

discrimination and disparate treatment based on disability. Id.

at 1168-71. Those rulings are not before us.

COMMUNITY HOUSE, INC v. BIETER 16787

The court denied summary judgment to the City and the

individual defendants on CHI’s remaining FHA, Establish-

ment Clause, and Idaho constitutional claims. With respect to

the individual defendants, the district court held that neither

legislative nor qualified immunity applied and denied them

summary judgment.

II

STANDARD OF REVIEW

We review de novo a district court’s decision to deny sum-

mary judgment based on legislative or qualified immunity.

Kaahumanu v. County of Maui, 315 F.3d 1215, 1219 (9th Cir.

2003); Mabe v. San Bernardino County, 237 F.3d 1101, 1106

(9th Cir. 2001). We apply the same summary judgment stan-

dard as the district court. Suzuki Motor Corp. v. Consumers

Union of U.S., Inc., 330 F.3d 1110, 1131 (9th Cir. 2003).

Summary judgment is appropriate where “the pleadings,

the discovery and disclosure materials on file, and any affida-

vits show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). Because the issues presented here

on summary judgment are “purely legal ones,” we need

decide only “whether the district court correctly determined

that, under the facts alleged, [CHI’s] claims were barred as a

matter of law.” Clipper Exxpress v. Rocky Mtn. Motor Tariff

Bureau, Inc., 690 F.2d 1240, 1250 (9th Cir. 1982). We accept

those facts and reasonable inferences to be drawn from them

in the light most favorable to CHI.

III

LEGISLATIVE IMMUNITY2

2

CHI argues perfunctorily that we should not consider the legislative

immunity question because the individual defendants “did not assert legis-

16788 COMMUNITY HOUSE, INC v. BIETER

[1] Local government officials are entitled to legislative

immunity for their legislative actions, whether those officials

are members of the legislative or the executive branch. Bogan

v. Scott-Harris, 523 U.S. 44, 54-55 (1998). This immunity

extends both to claims for damages and claims for injunctive

relief. Supreme Ct. of Va. v. Consumers Union of the U.S.,

Inc., 446 U.S. 719, 732-33 (1980). Accordingly, we must

decide whether the lease and sale of Community House to the

BRM was an act within the sphere of legislative activity.

Bogan, 523 U.S. at 54.

A. The Members of the City Council

[2] Although monitoring or administrating a municipal

contract is generally an executive function, whether an act is

legislative depends not on defined categories of government

acts but on “the character and effect” of the particular act at

issue. Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580

(9th Cir. 1984). Moreover, the question of the intent of the

individual defendants is strictly off-limits in the legislative

immunity analysis. As instructed by the Supreme Court, our

inquiry into whether the officials’ actions were legislative

must be “stripped of all considerations of intent and motive.”

Bogan, 523 U.S. at 55.

The privilege would be of little value if [legislators]

could be subjected to the cost and inconvenience and

distractions of a trial upon a conclusion of a pleader,

or to the hazard of a judgment against them based

upon a jury’s speculation as to motives.

Tenney v. Brandhove, 341 U.S. 367, 377 (1951).

lative immunity in their Answer.” CHI’s one-sentence argument on how

it was prejudiced is woefully insufficient, and CHI has waived the argu-

ment by failing adequately to brief it. Aramark Facility Servs. v. Serv.

Employees Int’l Union, Local 1877, 530 F.3d 817, 824 n.2 (9th Cir. 2008).

COMMUNITY HOUSE, INC v. BIETER 16789

We consider four factors in determining whether an act is

legislative in its character and effect: “(1) whether the act

involves ad hoc decisionmaking, or the formulation of policy;

(2) whether the act applies to a few individuals, or to the pub-

lic at large; (3) whether the act is formally legislative in char-

acter; and (4) whether it bears all the hallmarks of traditional

legislation.” Kaahumanu, 315 F.3d at 1220 (citation and inter-

nal quotation marks omitted). The first two factors are largely

related, as are the last two factors, and they are not mutually

exclusive. Kaahumanu, 315 F.3d at 1220; San Pedro Hotel v.

City of Los Angeles, 159 F.3d 470, 476 (9th Cir. 1998).

[3] The third and fourth factors are easily satisfied in this

case. The district court acknowledged, and CHI does not dis-

pute, that the City’s actions were formally and indisputably

legislative in character. Cmty. House II, 654 F. Supp. 2d at

1166. In an attempt to sell Community House at the public

auction, the City Council passed Ordinances 6402 and 6404.

Ordinances must be passed by majority vote, must be pub-

lished in a city’s official newspaper, and must generally be

read on three different days. Idaho Code §§ 50-901, 902.

In addition to the Ordinances, throughout the period the

City was involved with Community House, the City Council

passed at least three resolutions: Resolution 12635, which

announced the City’s partnership with CHI, Resolution

13056, which approved the lease to CHI, and Resolution

18765, which approved the lease to the BRM. Council Reso-

lutions must also be passed by majority vote and, like ordi-

nances, are binding. Idaho Code § 50-902. Resolutions,

however, are not subject to the same publication and reading

requirements as ordinances. See id. The City’s actions were

formally legislative and bore all the hallmarks of traditional

legislation that implemented City policy.

[4] We next consider whether the City’s actions applied to

merely a few individuals or to the public at large. The district

court held that the City’s lease and sale of Community House

16790 COMMUNITY HOUSE, INC v. BIETER

to the BRM affected only “CHI, the City, the BRM, and the

residents of Community House.” Cmty. House II, 654 F.

Supp. 2d at 1166. With respect, that conclusion was mani-

festly erroneous. First, the lease and sale actually had an

impact on a larger group of people — Boise’s homeless com-

munity. An act need not affect a city’s entire population in

order to be considered legislative. It is sufficient that the act

affects a discrete group of people or places. See Kaahumanu,

315 F.3d at 1220 (enactment of a zoning ordinance, unlike the

denial of a conditional use permit, is generally a legislative

act because it affects “all parcels within the covered area”).

[5] The unchallenged facts arrayed in Part I, sections A, B,

C, and D of this opinion demonstrate that the disputed lease

and sale were an inseparable part of the City’s longstanding

and continuing attempt to ameliorate a serious community

problem, indeed a city “crisis.” CHI’s Second Amended Com-

plaint itself describes a city-wide problem to which many pri-

vate as well as public interests responded. CHI would ask us

to put on blinders to the context which spawned the sale and

lease. Only were we to ignore everything leading up to the

dispute could we conclude that the lease and sale affected

merely a few people.

Our final consideration is whether the actions of the mayor

and council members involved the formulation of policy or

were merely ad hoc decisions. An “ad hoc” decision is made

“with a particular end or purpose,” as distinguished from “a

coordinated policy.” Webster’s New International Dictionary,

Unabridged 26 (2002). Budgetary decisions, such as a deci-

sion to eliminate an employment position, typically involve

the formation of policy. See Bechard v. Rappold, 287 F.3d

827, 830 (9th Cir. 2002). On the other hand, decisions

directed toward specific individuals, such as a decision to

indemnify a government employee, are normally considered

to be ad hoc. Trevino v. Gates, 23 F.3d 1480, 1482 (9th Cir.

1994).

COMMUNITY HOUSE, INC v. BIETER 16791

Once again, the fact that the lease and sale to the BRM

viewed out of context involved only a single building and par-

cel of land is not dispositive. We have previously held that a

denial of public funds for a loan to a single entity for the pur-

chase of a single hotel “involved the formation of policy

applied to the public at large.” San Pedro Hotel Co., 159 F.3d

at 476. Because the denial of the loan was a discretionary

decision on whether to disburse public funds to a certain

party, the decision was not ad hoc:

The disbursement of public funds in support of one

project necessarily means that other projects are not

being funded. A legislator’s decision can almost

always be criticized for not funding some worthy

group. This is precisely the type of decision for

which a legislator must be given immunity. To hold

otherwise would expose virtually every municipal

funding decision to judicial review.

Id. We held that the defendant councilman was “entitled to

absolute immunity for voting or persuading his colleagues to

vote one way or another on approval of the loan.” Id.

CHI’s attempt to distinguish San Pedro Hotel is wholly

unpersuasive. It argues that the mayor and council members

“have not produced evidence of any policy to address home-

lessness that was related to their vote for a facially discrimina-

tory men-only policy and approval of a lease for a below

market rent.” CHI’s cramped formulation of our focus

attempts to limit the policy inquiry here only to the men-only

stipulation and the rent issue. These two matters are but small

subparts of a larger developing universe, and examining the

relevant universe and the context of the disputed acts assist us

in deciding whether they were essentially legislative or not.

First, the actions of the mayor and council members leading

up to and including the lease and sale to the BRM involved

questions of whether to continue making “disbursement[s] of

16792 COMMUNITY HOUSE, INC v. BIETER

public funds” to CHI. Id. The City consistently contributed

public resources to assist CHI in the operation of Community

House: at least $200,000 per year for ten years. When the City

took over management and was forced to funnel $80,000 into

Community House each month, it determined — unsurpris-

ingly — that transferring management or ownership would

provide a long-term solution. Its decision to lease and eventu-

ally sell the facility to an organization that does not receive

any public funds preserved the City’s coffers for other worthy

projects.

Second, the City had an ongoing policy, since 1994 at the

latest, of helping provide shelter for and services to Boise’s

homeless community. The MOU clearly states the City’s

intention to “enter into a cooperative public/private partner-

ship with the primary objective being to provide housing and

comprehensive services for the homeless in our community.”

The City kept looking for a solution that would keep the doors

of the shelter open. When it became clear that CHI’s financial

difficulties were not improving, the City decided to bring in

the Salvation Army — with CHI’s blessing — to see if a dif-

ferent non-profit group could operate the facility with less dif-

ficulty. When the Salvation Army abandoned the project after

only 2 weeks, the City itself took over management of Com-

munity House. And when a different non-profit organization

demonstrated its desire and ability to take over the City’s

efforts to manage a homeless shelter — which would effectu-

ate the City’s policy of caring for the homeless while saving

the City money at the same time — the City chose that route.

Finally, the individuals involved in the decision of what to

do with Community House had to weigh important social

demands inherent in the City’s policy of helping the homeless

against significant individual rights. Legislators involved in

such balancing are generally entitled to absolute legislative

immunity. Kuzinich v. Santa Clara County, 689 F.2d 1345,

1350 (9th Cir. 1982). In Kuzinich, a case involving the enact-

ment of an emergency zoning ordinance, we explained why:

COMMUNITY HOUSE, INC v. BIETER 16793

[T]he manifest need for a rule of absolute immunity

is illustrated in this case. Here legislators are

involved in balancing social needs against constitu-

tional rights, the kind of balancing which often pro-

duces plurality opinions, and almost always

dissenting opinions, in the Supreme Court. These

legislators now find themselves sued for the total of

$2,500,000.00 general damages and $5,000,000.00

punitive damages by a plaintiff whose business, as

nearly as we can determine from the record, has not

been shut down one day.

Id.

[6] In other words, it is not the within the province of the

courts to second-guess the difficult policy decisions legisla-

tors must make simply because a different decision might

have been made after weighing the immediate needs of a dis-

advantaged group of local citizens against the possibility of

offending a constitutional or statutory right. The City’s ulti-

mate decision in this case unmistakably was not ad hoc.

Rather, it was the culmination of the City’s repeated efforts

to ensure that Boise addressed its homeless crisis and retained

a homeless shelter.

CHI casts its fate in large measure with our decision in

Kaahumanu, 315 F.3d at 1220-24. In that case, we analyzed

the Maui City Council’s denial of a conditional use permit

(“CUP”) to an applicant who wished to use for commercial

purposes her beachfront property located in an area zoned for

residential use. Our inquiry was designed ultimately to deter-

mine whether the Council’s denial was insulated by the doc-

trine of legislative immunity from lawsuits brought pursuant

to § 1983. Accordingly, we examined whether the denial was

administrative with respect to settled zoning policy, on one

hand, or whether it had the characteristics of a policy laden

legislative decision, on the other. Id. at 1220.

16794 COMMUNITY HOUSE, INC v. BIETER

Because we concluded that the denial was administrative,

we decided that the Council and its members were not entitled

to legislative immunity, and we did so for two reasons.

First, the denial was “based on the circumstances of the

particular case and did not effectuate policy or create a bind-

ing rule of conduct.” Id.

Second, “[i]n denying a single application for a CUP, the

Council did not change Maui’s comprehensive zoning ordi-

nance or the policies underlying it, nor did it affect the City’s

budgetary priorities or the services the County provides to

residents.” Id. at 1223-24. The CUP by its terms applied only

to Plaintiff Barker’s parcel and did not involve rezoning or an

application for rezoning. Id. at 1223 n.7.

To articulate our reasoning in that case is to demonstrate

that Kaahumanu is manifestly distinguishable from the case

at hand. Here, the actions of which CHI complains were taken

specifically to supersede old policy and to effectuate a new

approach to a continuing civic problem for which the City

was searching for a remedy. The City’s final decision had

nothing to do with the rote administration of the existing pol-

icy. Unlike the disputed decision in Kaahumanu, the discre-

tionary decision here directly affected an important service

the City provided to a disadvantaged segment of its residents,

and it did so with considerable budgetary implications.

Bogan, 523 U.S. at 55-56 (“The ordinance [qualifying for leg-

islative immunity for the officials responsible for it] reflected

a discretionary, policymaking decision implicating the bud-

getary priorities of the city and the services the city provides

to its constituents.”). In effect, although the Maui City Coun-

cil is normally a legislative body, its decision to deny an iso-

lated CUP to Barker had all the hallmarks of an ad hoc

implementing executive decision, not a legislative one. Thus,

we conclude that Kaahumanu is distinguishable from both

this case, as well as from San Pedro Hotel where the public

funds aspect of the decision tipped the scales in favor of legis-

COMMUNITY HOUSE, INC v. BIETER 16795

lative immunity. San Pedro Hotel by itself would be enough

to support our decision.

[7] In discussing the long-standing tradition of legislative

immunity, the Supreme Court has emphasized that the free-

dom of legislators to make decisions without worrying about

personal liability is necessary to protect the citizens — not

just the legislators:

These privileges are thus secured, not with the inten-

tion of protecting the members against prosecutions

for their own benefit, but to support the rights of the

people, by enabling their representatives to execute

the functions of their office without fear of prosecu-

tions, civil or criminal.

Tenney, 341 U.S. at 373-74 (citation and quotation marks

omitted). The decisions about how to further the City’s laud-

able goal of fighting homelessness is a prime example of the

need to allow city council members the freedom to make

important and difficult discretionary decisions without fear of

being personally sued for doing so.

B. The Mayor

CHI asserts that Mayor Bieter is not entitled to legislative

immunity because “[a] mayor is a city’s chief administrative

official,” the “act of signing a public contract is ministerial,”

and he “did not vote on the Ordinance or lease.” This argu-

ment ignores the Supreme Court’s insistence that the question

of whether an act is legislative turns on the nature and charac-

ter of the particular act, not on any bright-line rule. Bogan,

523 U.S. at 54. Indeed, the Court held in Bogan that an execu-

tive official’s introduction of a budget and signing of a local

ordinance were legislative acts. Id. at 55.

[8] Here, the mayor’s office participated in the entire legis-

lative process regarding Community House. Members of the

16796 COMMUNITY HOUSE, INC v. BIETER

mayor’s staff attended various CHI Board meetings to discuss

potential solutions to Community House issues. The mayor

requested in February 2004 that CHI make a proposal if it

needed financial assistance. The Advisory Committee, of

which Watson was a member, stated its intent to help Mayor

Bieter — not just the City Council members — evaluate the

best course of action with respect to Community House. As

contemplated by state law, he signed the Ordinances and

approved the Resolutions passed by the City Council. See id.

Because the mayor was intricately involved in the City’s pol-

icy decision to provide shelter for the homeless, he is entitled

to legislative immunity along with the council members, even

though he is nominally an executive official.

[9] That the mayor and council members knew the BRM

was a religious organization and would allow only single men

to stay at the shelter does not change our analysis. Courts

must be extremely careful that considerations of a legislator’s

motive do not infect the determination of whether an act is

legislative:

The claim of an unworthy purpose does not

destroy the privilege. Legislators are immune from

deterrents to the uninhibited discharge of their legis-

lative duty, not for their private indulgence but for

the public good. One must not expect uncommon

courage even in legislators.

Tenney, 341 U.S. at 377. “It [is] not consonant with our

scheme of government for a court to inquire into the motives

of legislators . . . .” Id.

The importance of absolute legislative immunity to our sys-

tem of government cannot be overstated:

In times of political passion, dishonest or vindictive

motives are readily attributed to legislative conduct

and are readily believed. Courts are not the place for

COMMUNITY HOUSE, INC v. BIETER 16797

such controversies. Self-discipline and the voters

must be the ultimate reliance for discouraging or cor-

recting such abuses.

Id. at 378 (footnote omitted). For their legislative decisions,

legislators are answerable to the citizenry — not to a court of

law. The specters of impeachment, recall, lost elections, and

criminal prosecution for bribery and other crimes are enough

checks against a legislator’s malfeasance. As a matter of

sound public policy, we must not and should not add personal

financial liability to that list.

IV

QUALIFIED IMMUNITY

[10] In § 1983 actions, the doctrine of qualified immunity

protects city officials from personal liability in their individ-

ual capacities for their official conduct so long as that conduct

is objectively reasonable and does not violate clearly-

established federal rights. Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982) (citations omitted). Qualified immunity is neces-

sary to “protect[ ] the public from unwarranted timidity on the

part of public officials” and to avoid “dampen[ing] the ardour

of all but the most resolute, or the most irresponsible.” Rich-

ardson v. McKnight, 521 U.S. 399, 408 (1997) (citation and

internal quotation marks omitted). True to these purposes, the

qualified immunity standard “ ‘gives ample room for mis-

taken judgments’ by protecting ‘all but the plainly incompe-

tent or those who knowingly violate the law.’ ” Hunter v.

Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs,

475 U.S. 335, 341, 343 (1986)). “Moreover, because ‘[t]he

entitlement is an immunity from suit rather than a mere

defense to liability,’ we repeatedly have stressed the impor-

tance of resolving immunity questions at the earliest possible

stage in litigation.” Hunter, 502 U.S. at 227 (citation deleted)

(emphasis in original). Qualified immunity, however, is a

defense available only to government officials sued in their

16798 COMMUNITY HOUSE, INC v. BIETER

individual capacities. It is not available to those sued only in

their official capacities. Eng v. Cooley, 552 F.3d 1062, 1064

n.1 (9th Cir. 2009); Kentucky v. Graham, 473 U.S. 159, 165-

68 (1985).

We recognize that public employees — such as Birdsall

and Chatterton — carrying out the express legislative will of

a city are ordinarily entitled to rely on its lawfulness. As we

said in Dittman v. California, 191 F.3d 1020, 1027 (9th Cir.

1999), “when a public official acts in reliance on a duly

enacted statute or ordinance, that official is entitled to quali-

fied immunity.” See also Grossman v. City of Portland, 33

F.3d 1200, 1210 (9th Cir. 1994).

As to the Dittman / Grossman rule, however, the parties

hotly dispute the specific role played in this matter by Birdsall

and Chatterton. Not unexpectedly, the City says its employ-

ees, who “did not vote for or authorize the lease or sale of the

building,” were unmistakably acting “in furtherance of deci-

sions made by the City Council.” CHI, on the other hand,

asserts that the City’s argument “fails to recognize the pri-

mary role [Chatterton and Birdsall] played in wrongful con-

duct and in developing the plan and advising the Council.”

During oral argument, CHI’s attorney called them the “pri-

mary movers” who deliberately and in knowing violation of

the law “orchestrated” CHI’s demise. CHI refers us in this

respect to our qualification in Grossman that “[w]here a stat-

ute authorizes official conduct which is patently violative of

fundamental constitutional principles, an officer who enforces

that statute is not entitled to qualified immunity.” Id. at 1209.

Given this heated dispute, and because we must accept the

facts and reasonable inferences in the light most favorable to

CHI, we hesitate in these circumstances to apply the Dittman

/ Grossman rule. Instead, we examine this immunity issue

according to Saucier’s second prong: whether the rights alleg-

edly violated were clearly established at the relevant times.

COMMUNITY HOUSE, INC v. BIETER 16799

We note here some considerable and perplexing fog in the

record. CHI’s Second Amended Complaint says in paragraphs

34 and 35 that it pursues defendants Chatterton and Birdsall

in their “official capacit[ies].” In that event, the principle of

qualified immunity would be utterly inapposite. However, the

district court’s opinion and the parties’ briefs and oral argu-

ments give every indication that these defendants are being

sued in their individual capacities, as the complaint’s Prelimi-

nary Statement suggests:

3. The Plaintiff, CHI, seeks monetary damages,

declaratory, and injunctive relief against the City of

Boise, and individually named defendants who are

officials or employees of the municipality to redress

the Defendant’s discriminatory practices and poli-

cies, under color of state law . . . .

(emphasis added). Furthermore, the first words from the

City’s attorney at oral argument were that this appeal is about

qualified immunity, which, we repeat has no application to

persons sued their official capacities.

The district court’s opinion lumps all the defendants

together, and, in denying qualified immunity to all, the court

makes no distinction whatsoever between defendants in their

official capacities and defendants in their individual capaci-

ties. Given the rule that qualified immunity covers only defen-

dants in their individual capacities, one can only wonder why

the district court denied Chatterton’s and Birdsall’s request

for the same if the court and the parties understood this dis-

tinction and viewed these City employees as being sued only

in their official capacities. The briefs filed by both parties do

not acknowledge or recognize this important principle.

Indeed, during oral argument, CHI’s counsel manifested an

intention to attempt to recover punitive damages from the

individual defendants, saying that to leave the City as the only

defendant would deprive them of that opportunity:

16800 COMMUNITY HOUSE, INC v. BIETER

(By the court)

Q. Are you looking for money judgments

against the individual defendants?

(By counsel for the plaintiffs)

A. Well, . . . It’s not what we are looking

for, but the question is the court has to

apply the law as to qualified immunity.

...

Q. So, you’re looking for money judg-

ments against these individuals?

A. If that’s what the evidence reflects and

the jury determines that. . . .

Q. If [the individuals] all disappeared

from the case, is there anything you

cannot get from the City of Boise in

terms of compensatory and injunctive

relief?

A. We may lose punitive damages.

Q. Against the City of Boise?

A. Or the individuals. . . .

Q. Are you going to go after punitive

damages if you prevail?

A. If the evidence shows and the jury

agrees, then that’s a possibility. . . .

We simply cannot find anything in the record that suggests

that either the parties or the district court appreciate the differ-

COMMUNITY HOUSE, INC v. BIETER 16801

ence between personal and official capacity § 1983 lawsuits.

When asked during oral argument about the capacities of the

defendants, CHI’s counsel could not recall what was in the

complaint. Thus, it is an appropriate time to republish the

Supreme Court’s explanation of this important distinction.

Proper application of this [immunity] principle in

damages actions against public officials requires

careful adherence to the distinction between

personal- and official-capacity suits. Because this

distinction apparently continues to confuse lawyers

and confound lower courts, we attempt to define it

more clearly through concrete examples of the prac-

tical and doctrinal differences between personal- and

official-capacity actions.

Personal-capacity suits seek to impose personal

liability upon a government official for actions he

takes under color of state law. . . . Official-capacity

suits, in contrast, “generally represent only another

way of pleading an action against an entity of which

an officer is an agent.” . . . As long as the govern-

ment entity receives notice and an opportunity to

respond, an official-capacity suit is, in all respects

other than name, to be treated as a suit against the

entity. . . . It is not a suit against the official person-

ally, for the real party in interest is the entity. Thus,

while an award of damages against an official in his

personal capacity can be executed only against the

official’s personal assets, a plaintiff seeking to

recover on a damages judgment in an official-

capacity suit must look to the government entity

itself.

Graham, 473 U.S. at 165-66 (citations and footnotes omitted).

[11] This case is here for the second time on an interlocu-

tory basis. The trial is still in the distant future. Therefore,

16802 COMMUNITY HOUSE, INC v. BIETER

given the Supreme Court’s admonishment in Hunter v. Bryant

to decide immunity issues as early as possible, see 502 U.S.

at 227, we “believe it prudent” at this juncture in an exercise

of our supervisory power to clear up this apparent confusion

now and to address qualified immunity as it relates to Chatter-

ton and Birdsall — which is what both parties ask us to do.

MGA Entertainment, Inc. v. Mattel, Inc., ___ F.3d ___, Nos.

09-55673 and 09-55812, slip op. 10540 (9th Cir. July 22,

2010) (Kozinski, C.J.). The record as it stands is ripe and ade-

quate to do so. To fail to do so risks continuing confusion in

the district court, a possible new amended complaint, and a

trial on issues not properly in the case. Thus, we take counsel

for CHI at his word and address the question of qualified

immunity as it applies to the Establishment Clause and FHA

claims against Chatterton and Birdsall in their individual

capacities.

A qualified immunity analysis consists of two prongs: (1)

whether, “[t]aken in the light most favorable to the party

asserting the injury, . . . the facts alleged show the [official’s]

conduct violated a constitutional right”; and (2) whether that

right was clearly established. Saucier v. Katz, 533 U.S. 194,

201 (2001), modified by Pearson v. Callahan, ___ U.S. ___,

129 S. Ct. 808 (2009). Addressing the two prongs of the test

in this order is often beneficial, but it is not mandatory. Courts

may “exercise their sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular

case at hand.” Pearson, 129 S. Ct. at 818.

To determine whether a right was clearly established, a

court turns to Supreme Court and Ninth Circuit law existing

at the time of the alleged act. See Osolinski v. Kane, 92 F.3d

934, 936 (9th Cir. 1996). In the absence of binding precedent,

courts should look to available decisions of other circuits and

district courts to ascertain whether the law is clearly estab-

lished. Id.

COMMUNITY HOUSE, INC v. BIETER 16803

This inquiry “must be undertaken in light of the specific

context of the case, not as a broad general proposition.” Sau-

cier, 533 U.S. at 201. For the law to be clearly established,

“[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987). It is not necessary that the “very action in question has

previously been held unlawful,” but “in the light of preexist-

ing law the unlawfulness must be apparent.” Id. “The rele-

vant, dispositive inquiry . . . is whether it would be clear to

a reasonable [official] that his conduct was unlawful in the sit-

uation he confronted.” Norwood v. Vance, 591 F.3d 1062,

1068 (9th Cir. 2010) (quoting Saucier, 533 U.S. at 202)

(omission and emphasis in original), petition for cert. filed,

April 7, 2010. In addition, “[c]ourts have . . . held that the

existence of a statute or an ordinance authorizing particular

conduct is a factor which militates in favor of the conclusion

that a reasonable official would find that conduct constitution-

al.” Grossman, 33 F.3d at 1209.

A. Jurisdiction

CHI argues initially that we lack jurisdiction to consider the

qualified immunity issue. Although the district court found —

on the first prong of the qualified immunity analysis — that

there were genuine issues of material fact regarding whether

there had been a violation of the Establishment Clause, the

court ended its analysis there. Cmty. House II, 654 F. Supp.

2d at 1166. It did not go on to determine the purely legal issue

of whether the law was so clearly established that a reason-

able official would have known his conduct violated that law

— known as the “second prong” of the test. Therefore, goes

CHI’s argument, our review cannot be separated from the

merits of the case, and we have no jurisdiction to consider the

issue.

It is true that when reviewing a denial of qualified immu-

nity, “our appellate jurisdiction is limited to questions of

16804 COMMUNITY HOUSE, INC v. BIETER

law.” Robinson, 566 F.3d at 821. However, we have power to

consider qualified immunity even where facts are disputed, so

long as we “assum[e] that the version of the material facts

asserted by the non-moving party is correct.” Jeffers v.

Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (per curiam). We

have made such an assumption and thus have jurisdiction to

consider the second prong of Saucier’s test. It would be quite

incongruous if a public official’s right to an immediate appeal

from a denial of qualified immunity were to evaporate simply

because the district court failed or chose not to complete the

required Saucier analysis.

B. Forfeiture

The individual defendants did not specifically raise in the

district court the defense of qualified immunity with respect

to the FHA claims. CHI thus urges that we find the issue for-

feited and refuse to consider it. We do note, however, that the

individual defendants including Chatterton and Birdsall did

generally raise this issue in their amended memorandum in

support of their motion for summary judgment. They argued

that their motion fairly read was addressed to all claims

against them, including the FHA claim.

Appellate courts will generally not entertain arguments that

were not raised in the district court. However, we may exer-

cise our discretion to consider an issue first raised on appeal

if it “is a pure question of law and the record is sufficient to

review the issue.” United States v. Alisal Water Corp., 431

F.3d 643, 654 n.4 (9th Cir. 2005). Qualified immunity is such

an issue. Bibeau v. Pac. Nw. Research Found., Inc., 188 F.3d

1105, 1111 n.5 (9th Cir. 1999), as amended, 208 F.3d 831

(9th Cir. 2000) (“Because qualified immunity presents a pure

question of law which we review de novo, any decision by the

district court would be entitled to no deference.”). We have on

occasion considered qualified immunity sua sponte. Graves v.

City of Coeur d’Alene, 339 F.3d 828, 846 n.23 (9th Cir.

COMMUNITY HOUSE, INC v. BIETER 16805

2003), abrogated on other grounds by Hiibel v. Sixth Judicial

Dist. Court of Nev., 542 U.S. 177 (2004).

CHI will not be prejudiced by our consideration of quali-

fied immunity on the FHA claims because, as we have noted,

we assume all disputed facts in CHI’s favor, and the disposi-

tive issue — which was fully addressed during oral argument

— is one of law only. We turn now to the merits.

C. The Fair Housing Act

[12] The FHA applies only to “dwellings.” 42 U.S.C.

§ 3604. A dwelling is a structure “occupied as, or designed or

intended for occupancy as, a residence,” id. at § 3602(b), an

“abode or habitation to which one intends to return as distin-

guished from the place of temporary sojourn or transient

visit,” Lakeside Resort Enters., LP v. Bd. of Supervisors of

Palmyra Township, 455 F.3d 154, 157 (3d Cir. 2006) (citation

and internal quotation marks omitted). This court’s previous

application of the FHA to Community House — which did

not involve the question of qualified immunity — was based

on the state of the record at the time of the preliminary injunc-

tion appeal, when the building contained an emergency shel-

ter and SROs, where residents would stay for up to a year and

a half. Cmty. House I, 490 F.3d at 1048 n.2. We did not deter-

mine whether the River of Life facility under the BRM’s man-

agement would also be a dwelling. In fact, after our decision

in Community House I, the Idaho District Court determined in

a separate case that the very facility at issue, as operated by

the BRM, is not a dwelling. Intermountain Fair Hous. Coun-

cil v. Boise Rescue Mission Ministries, 655 F. Supp. 2d 1150,

1159 (D. Idaho 2009), as amended, 2010 WL 1913379 (D.

Idaho 2010).

[13] However, we need not decide whether the FHA

applies to the shelter as currently operated, because even if it

does, that application was not clearly established in 2005. We

had not determined whether homeless shelters in general met

16806 COMMUNITY HOUSE, INC v. BIETER

the definition of a “dwelling,” and we did not decide the issue

in the previous appeal. Cmty. House I, 490 F.3d at 1048 n.2.

Other courts had considered the issue, but there was no con-

sensus on the FHA’s applicability to such shelters. Compare

Woods v. Foster, 884 F. Supp. 1169, 1173-74 (N.D. Ill. 1995)

(shelter was a dwelling because the homeless have no other

place to which to return), with Johnson v. Dixon, 786 F. Supp.

1, 4 (D.D.C. 1991) (shelter was likely not a dwelling but a

“place of overnight repose and safety”).

As far as Chatterton and Birdsall knew, the BRM was most

likely to use the facility only as a short-term, emergency

homeless shelter. The BRM’s initial proposal to the City —

which was declined in 2003 — proposed retaining the longer-

term transitional apartments and SROs. However, by the time

the BRM responded to the City’s RFI/RFP process, its pro-

posal did not state that Community House would be used in

such a manner. The proposal focused instead on the BRM’s

“basic” emergency shelter programs. Chatterton requested

that the BRM clarify how its men-only policy and religious

services affected the “emergency shelter services” to be

offered by the BRM. Ordinances 6402 and 6404, which

declared Community House surplus property subject to sale,

explicitly invoked Boise’s need for an emergency shelter.

Although the BRM was authorized under the lease to provide

additional services, the BRM was required to provide only

emergency shelter services and a soup kitchen. There is evi-

dence that, as late as August 2005, the BRM was still consid-

ering including longer-term SROs in the building. But CHI

has pointed to no evidence suggesting that the BRM discussed

these considerations with Chatterton or Birdsall.

[14] Finally, even if it was clearly established that the FHA

applied to Community House, a reasonable official could not

have known that the single-men-only policy violated the stat-

ute. It was not until the earlier appeal that we determined what

types of justifications could validate a facially discriminatory,

men-only policy — an issue already subject to a circuit split.

COMMUNITY HOUSE, INC v. BIETER 16807

Cmty. House I, 490 F.3d at 1050. The council members ques-

tioned the BRM regarding the policy, were assured that the

women could stay at the City Light shelter and that it would

be safer to house men and women in separate facilities, and

even verified the BRM’s claims of fewer police calls. These

were reasonable actions, especially considering that this court

later determined that a discriminatory policy based on legiti-

mate, non-stereotypical safety concerns would in fact pass

muster under the FHA. Id.

D. The Establishment Clause

[15] The Establishment Clause of the First Amendment

provides that “Congress shall make no law respecting an

establishment of religion.” U.S. Const. amend. I. Applied to

the states by the Fourteenth Amendment, the Establishment

Clause does not prohibit all government involvement with

religion. It allows the government to provide aid to a religious

organization as long as the government action has a secular

purpose and does not have the primary effect of advancing

religion. Cmty. House I, 490 F.3d at 1055. CHI does not chal-

lenge this court’s earlier conclusion that the lease and sale of

Community House to the BRM had a secular purpose — to

provide shelter for the homeless. Id. at 1055 n.9.

[16] Government aid to a religious organization will fail

the “primary effect” test if it (1) results in government indoc-

trination; (2) defines the recipients of the aid by reference to

religion; or (3) creates “excessive government entanglement”

with religion. Id. at 1055. Because the lease and sale to the

BRM did not define anybody by reference to religion and

because under the lease the City retained no control over the

BRM’s management of the facility, our inquiry here focuses

on indoctrination. Thus, to prove a violation of the Establish-

ment Clause, CHI must show that (1) the BRM’s activities at

the River of Life Mission (formerly Community House) result

in indoctrination, and (2) such indoctrination is “attributable

to the government.” Id. at 1056. We assume without deciding

16808 COMMUNITY HOUSE, INC v. BIETER

that the BRM’s chapel services and pre-meal prayers indoctri-

nate the shelter’s guests. However, we conclude that it was

not clearly established at the time of the lease that such indoc-

trination could be attributable to the government.

The district court determined that the BRM’s indoctrination

was attributable to the government for two reasons. First, dur-

ing the lease period, “the City only charged the BRM rent of

$1 per year for the building. . . , insured the premises[,] and

paid for necessary repairs.” Cmty. House II, 654 F. Supp. 2d

at 1162. Second, the record contained conflicting evidence on

whether the option price of $2 million was less than the mar-

ket value of the property.3 Id. We address each in turn.

1. Favorable Lease Terms

As we recognized in Community House I, CHI’s lease with

the City was more favorable than the BRM’s. 490 F.3d at

1057. The BRM was obligated to pay rent of $1 per year for

the first five years, after which rent would escalate to a com-

mercial rate, and the maximum term of the lease was only ten

years. The CHI lease, on the other hand, required rent of only

$1 per year for its fifty-year lease term. The City had similar

repair and insurance responsibilities under both leases.

[17] CHI correctly points out that, although the BRM lease

was (at worst) neutral when compared to the CHI lease, this

fact is not, by itself, sufficient to defeat an Establishment

Clause claim. Cmty. House I, 490 F.3d at 1057-58 (citing

Mitchell v. Helms, 530 U.S. 793, 838-39 (2000) (O’Connor,

J., concurring)). But neutrality is a very important factor in

the indoctrination inquiry and tends to show that a private

entity’s indoctrination cannot be attributed to the government.

3

Simply to adopt our previous analysis on this issue would be improvi-

dent. We now have the benefit of an expanded record on summary judg-

ment, rather than the limited record we had in the preliminary injunction

appeal.

COMMUNITY HOUSE, INC v. BIETER 16809

See Mitchell, 530 U.S. at 810 (plurality) (“[I]f the govern-

ment, seeking to further some legitimate secular purpose,

offers aid on the same terms, without regard to religion, to all

who adequately further that purpose . . . then it is fair to say

that any aid going to a religious recipient only has the effect

of furthering that secular purpose.”). Here, not only was the

City neutral toward the BRM in its lease terms when com-

pared to CHI’s lease, the BRM actually got the worse deal.

Where the BRM would have been required to pay market rent

after five years, CHI was guaranteed that — throughout the

entire fifty-year term of its lease — its rent would never

exceed $1 per year.4

[18] If charging below-market rent to a non-profit religious

organization on the same or worse terms than those received

by a previous secular non-profit tenant would constitute gov-

ernment indoctrination, that was not clearly established in

2005. In Christian Science Reading Room Jointly Maintained

v. City and County of San Francisco, 784 F.2d 1010, 1015

(9th Cir. 1986), as amended, 792 F.2d 124 (9th Cir. 1986), we

held that leasing public property to a religious organization

does not violate the Establishment Clause, as least where the

lease was on the same terms as leases offered to commercial

tenants. That case did not address whether it would violate the

Establishment Clause if such a lease were offered on the same

terms as those received by other non-profit tenants. When

pressed during oral argument for their best case on this issue,

plaintiffs’ counsel cited this case. It does not help them.

At least one court has decided such a case. In Fairfax Cove-

nant Church v. Fairfax County Sch. Bd., 17 F.3d 703 (4th

4

CHI argues that the correct annual rent comparison between the two

leases is the $1 per year the BRM paid versus the $125,000 in rent CHI

reported to the City from the occupants of Community House. CHI

ignores the fact that when the City was receiving this rent, it was also

expending over $200,000 annually to fund operations at Community

House. Once the BRM took over, the City was able to save that money

and use it for other projects.

16810 COMMUNITY HOUSE, INC v. BIETER

Cir.), cert. denied, 511 U.S. 1143 (1994), the Fourth Circuit

considered a school board policy of leasing public facilities

for an amount of rent determined by the type of entity. Stu-

dent organizations and groups primarily benefitting the public

did not have to pay rent. Id. at 704. Cultural, civic, and educa-

tional groups paid rent at a “noncommercial” rate. Id. For five

years churches paid the noncommercial rate, which then esca-

lated to the commercial rate. Id. at 705. The court held that

charging churches the same below-market rent as the other

non-profit groups would not violate the Establishment Clause,

but that charging them commercial rent — which it termed

“rent discrimination” — violated the Free Exercise and Free

Speech Clauses. Id. at 706-07.

[19] Faced with a dearth of binding case law on the subject

of non-profit leases to religious organizations — and a Fourth

Circuit case holding that “rent discrimination” based on reli-

gion was unconstitutional — a reasonable official would not

have known that the BRM lease violated the Establishment

Clause. When the City undertook its RFI/RFP process, the

BRM was the only entity that proposed to purchase Commu-

nity House. Given that no other non-profit organizations were

willing or able to keep the doors of the shelter open, the deci-

sion to lease the building to the BRM was reasonable.

2. The $2 Million Sale Price

[20] With respect to the option to purchase, case law

before 2005 suggested that, generally, a sale of public prop-

erty to a religious organization for less than market value

would likely violate the Establishment Clause. See, e.g., Free-

dom from Religion Found., Inc. v. City of Marshfield, 203

F.3d 487, 492 (7th Cir. 2000) (sale constitutional even though

city did not solicit alternate bids: sale complied with state law,

purchaser paid market value, and the city had no further main-

tenance responsibilities); Southside Fair Hous. Comm. v. City

of New York, 928 F.2d 1336, 1348-49 (2d Cir. 1991) (sale

constitutional where party paid market value, land was trans-

COMMUNITY HOUSE, INC v. BIETER 16811

ferred for private use, and property did not appear connected

to the city in any way). But no case in the Ninth Circuit or

elsewhere had held that a below-market sale would be uncon-

stitutional where the organization also executed an important

city policy and saved the city money — the situation with

which we are confronted here. The City did not give the BRM

a gift; in fact, it received substantial consideration from the

BRM. In return for management and ownership of the prop-

erty, the City was relieved of the obligation and costs of oper-

ating the shelter, while at the same time ensuring as a matter

of City policy that the shelter stayed open.

[21] Moreover, although there might be an issue of fact as

to the market value of the property, it would not have been

clear to a reasonable official that setting the option price at $2

million would violate the Constitution. The appraisal prepared

at the request of the City of Community House was accompa-

nied by an explicit warning that the $3.22 million use value

was not market value. Knipe told the City that the figure

might be used as an opening offer during purchase negotia-

tions, but the City was required by law to put the property up

for auction. It could hardly have set the minimum auction

price at the highest possible value and expect to receive any

bids. The City knew only that the most probable sale price of

the building was somewhere between $850,000 and $3.22

million. The property failed to receive a satisfactory bid at

$2.5 million.5 The BRM initially wanted to pay only $1.8 mil-

lion. Negotiating a $2 million option price, which under the

lease would increase as time went on, seems a reasonable

solution to the somewhat elusive concept of market value.

5

Although CHI offered to purchase the property for $2.5 million of its

“equitable interest,” CHI had no equitable interest to bid. It had agreed in

2004 to terminate the lease and the Operating Agreement and to transfer

all of its assets to the City. Thus, Chatterton was correct in informing the

mayor and council members that CHI could not possibly purchase the

property.

16812 COMMUNITY HOUSE, INC v. BIETER

Having received no viable bids at the auction, the City was

not required to begin the entire the process all over again.

Because the facility did not sell at the auction, the City Coun-

cil was specifically empowered by Idaho law to dispose of the

property however it believed was “in the best interest of the

[C]ity.” Idaho Code § 50-1403(1). And it did so.

[22] Even if the auction had generated a viable bid, the

City would not have been required to accept it. No principle

of Establishment Clause jurisprudence requires that the gov-

ernment choose a secular entity over a religious one simply

because it is secular. Having had problems with CHI’s man-

agement in the past, the City was not obligated to continue to

work with CHI when another opportunity presented itself.

CHI was consistently late in providing the required financial

audits and rental income reports to the City. CHI faced an

allegation of embezzlement, and the President of CHI admit-

ted that CHI had not been able properly to track all of its

money. The City had given CHI a chance at helping the City

ensure that the Boise homeless would have a place to sleep —

a chance that lasted nearly ten years. Its decision to give a

similar chance to the BRM did not violate the First Amend-

ment.

V

CONCLUSION

CHI must be satisfied with the City and the Council as

defendants on the substantive issues raised in this case and

with Chatterton and Birdsall in their official capacities only.

Our decision today has no effect on CHI’s claims against

them. As the Supreme Court held in Owen v. City of Indepen-

dence, “imposing personal liability on public officials could

have an undue chilling effect on the exercise of their decision-

making responsibilities, but . . . no such pernicious conse-

quences [are] likely to flow from the possibility of a recovery

from public funds.” 445 U.S. 622, 653 n.37 (1980) (munici-

COMMUNITY HOUSE, INC v. BIETER 16813

palities have no immunity from damages flowing from their

constitutional violations). We hold only that as a matter of

law, the individual defendants are beyond the reach of CHI’s

claims. To pursue these individuals — as suggested at oral

argument by CHI’s counsel — for damages, punitive or other-

wise, serves no legally cognizable purpose.

Mayor Bieter and City Council members Jordan, Clegg,

Bisterfeldt, Eberle, Mapp, and Shealy are absolutely immune

from suit, either for damages or injunctive relief. The lease

and sale of Community House to the BRM, preceded as it was

by the City’s long partnership with CHI and grants of large

amounts of funding, “reflected a discretionary, policymaking

decision implicating the budgetary priorities of the [C]ity and

the services the [C]ity provides to its constituents.” Bogan,

523 U.S. at 55-56.

City employees Chatterton and Birdsall are entitled to qual-

ified immunity with respect to CHI’s Establishment Clause

and FHA claims against them in their individual capacities. At

the time of the lease to the BRM, a reasonable official would

not have known that those actions would result in government

indoctrination or in violations of the FHA.

REVERSED and REMANDED.

Chief Judge KOZINSKI, concurring:

The relevant facts, put in the light most favorable to the

plaintiffs, are much simpler than you’d think after reading the

majority’s opinion: Boise wanted to address the problem of

homelessness, so it helped establish Community House. It

eventually took over, closed the shelter and evicted everyone,

including tenants living in longer-term housing. It then leased

the building for a dollar a year to a Christian organization cal-

led Boise Rescue Mission, with an option to purchase at a

16814 COMMUNITY HOUSE, INC v. BIETER

below-market price. The building, which the Rescue Mission

eventually bought, had to include a shelter for at least 66

homeless men but could also be used for other residential pur-

poses. The Boise City Council and mayor approved the deal.

Two other city officials helped implement the plan. The Res-

cue Mission resumed at least one long-term housing program

and permitted only men to stay overnight. It also indoctrinated

guests with religious activities.

On those facts, I agree that the individual councilmen and

mayor are entitled to legislative immunity. But I disagree with

the way the majority comes to that conclusion. It holds that

we have to look at whether the particular lease and sale fit

into a broader plan to address homelessness. See maj. at

16791 (examining the “larger developing universe” to deter-

mine whether particular “disputed acts” were “essentially leg-

islative or not”). That approach is foreclosed by Kaahumanu

v. County of Maui, 315 F.3d 1215 (9th Cir. 2003). In that

case, we decided that county councilmen could be sued for

their vote to deny a conditional use permit—an ad hoc deci-

sion (a “disputed act[ ]”) we distinguished from the county’s

broader zoning policy (the “larger developing universe”). Id.

at 1218-20, 1224. The distinction is important because almost

any discrete, narrow decision—like denying a permit—could

otherwise be recast as part of some bigger legislative plan and

shielded by legislative immunity. Legislative immunity turns

on whether a particular disputed act, rather than some nebu-

lous “universe” of related policies, is essentially legislative.

We’re bound by our precedent.

Legislative immunity does apply to some very narrow

actions, including core budgeting decisions that affect the

public at large. See, e.g., San Pedro Hotel Co. v. City of Los

Angeles, 159 F.3d 470, 473, 476 (9th Cir. 1998) (single loan

of public money); see also Bogan v. Scott-Harris, 523 U.S.

44, 47, 55-56 (1998) (city budgeting). Legislators should not

have to answer for every decision to appropriate public

resources to one project instead of another. See San Pedro

COMMUNITY HOUSE, INC v. BIETER 16815

Hotel, 159 F.3d at 476 (“This is precisely the type of decision

for which a legislator must be given immunity. To hold other-

wise would expose virtually every municipal funding decision

to judicial review.”). Yet that’s essentially what the plaintiffs

allege the mayor and city council did here: wrongly approve

legislation subsidizing the lease and sale of a public building

to the Rescue Mission rather than sell it to Community House.

The majority therefore reaches the right result on legislative

immunity, but not for the right reasons.

I also disagree with the majority’s qualified immunity anal-

ysis, even assuming that the plaintiffs sued Birdsall and

Chatterton—the remaining individual defendants—in their

individual capacities. See Eng v. Cooley, 552 F.3d 1062, 1064

n.1 (9th Cir. 2009). Addressing the Establishment Clause

claims, the majority acknowledges that it’s probably unconsti-

tutional to sell a public building at a below-market price

offered only to an organization using it for religious indoctri-

nation. Maj. at 16808-09, 16810-11. But the majority also

suggests that such a sale might not be unconstitutional if it

would save the city some money and require the religious

group to “execute[ ] an important city policy.” Id. at 16811.

The majority can’t cite a single case or reason that justifies

carving out that exception. And no wonder: Almost every

municipal service costs money, but that doesn’t mean a city

can give away its sanitation department to the Muslims, its

police department to the Jews or its schools to the Catholics

in an exclusive sweetheart deal.

Birdsall and Chatterton are entitled to qualified immunity

from the Establishment Clause claims for a very basic reason

independent of whether approving the deal here was clearly

unconstitutional at the time: They didn’t make the decision to

lease and sell Community House to an organization that dis-

criminated on the basis of religion. The complaint accused

them only of “implementing the policies of the City of

Boise,” and we shouldn’t consider additional allegations that

were “newly minted” on appeal. See Dream Games of Ariz.,

16816 COMMUNITY HOUSE, INC v. BIETER

Inc. v. PC Onsite, 561 F.3d 983, 995-96 (9th Cir. 2009);

Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th Cir. 1996).

Even if we do, Chatterton simply ran the RFP and auction

processes, attended meetings and helped prepare the lease for

Council approval. Birdsall apparently played no role in nego-

tiating the lease and sale. Their conduct isn’t what triggered

the alleged Establishment Clause problem. See Whitaker v.

Garcetti, 486 F.3d 572, 582 (9th Cir. 2007) (“[A]n individual

defendant is stripped of qualified immunity only if he person-

ally violated a plaintiff’s constitutional rights.”).

Birdsall and Chatterton have qualified immunity from the

Fair Housing Act claims for similar reasons. They didn’t

approve the men-only policy authorized by city council and

implemented by the Rescue Mission. See Dittman v. Califor-

nia, 191 F.3d 1020, 1027 (9th Cir. 1999) (“[W]hen a public

official acts in reliance on a duly enacted statute or ordinance,

that official ordinarily is entitled to qualified immunity.”);

Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir.

1994). And they could have reasonably believed that the pol-

icy was justified by legitimate safety concerns. See Cmty.

House, Inc. v. City of Boise, 490 F.3d 1041, 1050-51 (9th Cir.

2007). We need not cast doubt, as the majority does, on a

published opinion by a previous panel that had “little trouble”

concluding that the Act did apply to at least parts of the build-

ing as operated by the Rescue Mission before the sale. See

Cmty. House, 490 F.3d at 1047-48 & n.2; see maj. at

16805-06.

Like the majority, I would hold that the individual defen-

dants are entitled to immunity. But I see no reason to depart

from our precedent in doing so.