Skoog v. County of Clackamas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL SKOOG, 

Plaintiff-Appellee,

v.

No. 04-35087

COUNTY OF CLACKAMAS; MARK

FRESH,  D.C. No.

CV-00-01733-

Defendants,

MWM

and

HERBERT ROYSTER,

Defendant-Appellant.



DANIEL SKOOG, 

Plaintiff-Appellant, No. 04-35286

v.

 D.C. No.

CV-00-01733-

COUNTY OF CLACKAMAS; MARK

FRESH; HERBERT ROYSTER, MWM

Defendants-Appellees.



DANIEL SKOOG, 

Plaintiff-Appellant,

v. No. 04-35568

COUNTY OF CLACKAMAS;

Defendant-Appellee,  D.C. No.

CV-00-01733-MO

and OPINION

MARK FRESH; HERBERT ROYSTER,

Defendants.



18617

18618 SKOOG v. ROYSTER

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted

March 9, 2006—Portland, Oregon

Filed November 20, 2006

Before: Melvin Brunetti, Thomas G. Nelson, and

Richard A. Paez, Circuit Judges.

Opinion by Judge T.G. Nelson

SKOOG v. ROYSTER 18621

COUNSEL

Montomery W. Cobb, Cobb & Bosse, LLP, Portland, Oregon,

for plaintiff-appellant-appellee Daniel Skoog.

18622 SKOOG v. ROYSTER

Rolf C. Moan, Assistant Attorney General, Salem, Oregon,

for defendant-appellant-appellee Herbert Royster.

Edward S. McGlone, Assistant County Counsel, Clackamas

County, Oregon City, Oregon, for defendant-appellee County

of Clackamas.

OPINION

T.G. NELSON, Circuit Judge:

I. Introduction

This set of appeals arises from a single lawsuit that is still

ongoing. The district court granted summary judgment on the

basis of qualified immunity to one of the defendants, Officer

Herbert Royster, on all but one claim: the plaintiff’s claim

that Royster seized his still camera in retaliation for the exer-

cise of his First Amendment rights. In 04-35087, Royster

interlocutorily appeals the court’s denial of summary judg-

ment on that claim, and we reverse. Although the plaintiff

stated a valid retaliation claim, the right assertedly violated —

the right to be free of intentional, retaliatory action for which

probable cause exists — was not clearly established. Accord-

ingly, Royster is entitled to summary judgment based on the

second prong of our qualified immunity analysis.

In part of 04-35286, the plaintiff, Daniel Skoog, appeals the

district court’s grant of summary judgment to Royster based

on qualified immunity on Skoog’s illegal search and seizure

claim. On the facts pled in the complaint, it is clear that prob-

able cause existed for the search and seizure. Accordingly, we

affirm the district court’s grant of summary judgment based

on the first prong of the qualified immunity analysis.

In the remainder of 04-35286, Skoog seeks to appeal the

district court’s limitation of his retaliation claim (the subject

SKOOG v. ROYSTER 18623

of Royster’s interlocutory appeal) to one item and its denial

of his motion for leave to amend. In 04-35568, he seeks to

appeal various other decisions of the district court. We lack

jurisdiction over these issues because the district court did not

certify them pursuant to Federal Rule of Civil Procedure

54(b) and no final judgment exists regarding them.

II. Background1

On February 19, 2001, Officer Herbert Royster first

encountered the plaintiff, Daniel Skoog. At the time, Royster

was engaged in a sting operation at a Get & Go convenience

store. Using a juvenile “decoy,” he caught the cashier selling

tobacco products to a minor. While engaged in conversation

with the cashier, Royster noticed Skoog filming him with a

digital video camera.

Skoog had been in a dispute with the county since his arrest

on a DUI charge in December 2000. He had been photograph-

ing and videotaping police activities for some time. It so hap-

pened that Skoog’s business, which sells protective armor to

law enforcement agencies, is in the same building as the Get

& Go. Skoog had gone to the store to buy some tobacco when

he noticed Royster talking loudly to the cashier. He then

retrieved his video camera from his office and began filming.

Skoog filmed the scene from outside the store for approxi-

mately two minutes. During that time, Royster was talking

with the cashier, and the juvenile “decoy” and at least three

other customers were inside the store. Skoog was not close

enough to Royster to record his conversation with the cashier.

However, after Skoog had been filming for two minutes,

Royster approached Skoog, showed him his police identifica-

tion, and asked why he was filming. Skoog told him he just

enjoyed filming things.

1

The facts are derived from the complaint, supporting documentation,

and the district court’s opinion, and are interpreted in the light most favor-

able to the plaintiff.

18624 SKOOG v. ROYSTER

Royster told Skoog that he might have committed a crime,

saying that “if you are recording my words, sir, without noti-

fying me, that is a felony offense in the State of Oregon . . . .

If you are recording my voice, you must advise me before you

do so . . . .” Skoog admitted that he had recorded Royster’s

voice. Royster asked for the videotape. Skoog refused to give

it to him, but told him he would give him a copy. Royster said

that he would turn the matter over to the Clackamas County

District Attorney’s office.

Skoog returned to his office and began making a copy of

the videotape. Royster requested a uniformed deputy to

accompany him to Skoog’s office. When that deputy, Deputy

Kraus, arrived at the scene, he gave Royster some background

regarding Skoog.

Specifically, Kraus told Royster that Skoog was engaged in

a lawsuit against the county and another deputy, Deputy

Fresh, who had arrested Skoog on the DUI charge in Decem-

ber 2000. Skoog had filed a suit alleging that Deputy Fresh

had arrested him without probable cause and with excessive

force, and that county officials had denied him medical treat-

ment for the eleven hours he was in the county jail. Skoog

subsequently added other claims to the suit, including those

on appeal. In addition to that suit, the criminal proceeding for

the DUI was continuing in state court at the time of the Get

& Go incident.

After Royster learned of Skoog’s suit, he and Deputy Kraus

went to Skoog’s office. There, Skoog was using his computer

to copy the videotape. As the tape played on the computer, the

deputies saw and heard the part of the tape in which Royster

was talking to Skoog. Skoog gave them “what purported to be

a copy of the tape.” He also took photos of the officers with

his “still” (i.e., not video) digital camera. Of particular impor-

tance to this appeal is the fact that Royster believed that

Skoog’s video camera, attached to his computer, may have

been in the background of the photos.

SKOOG v. ROYSTER 18625

Royster heard from fellow officers that Skoog had been

taking photographs of other officers. Indeed, as part of his

defense in his state DUI case and in his federal § 1983 claims,

Skoog had been taking pictures of officers watching his house

and following people who left his house. He stored his photos

and observations on his computer. Royster told fellow officers

that Skoog had been “venemous” during their encounter. He

also described Skoog as presenting a danger to law enforce-

ment and described “the protective armor, large caliber shells,

and bullet-riddled car door he had seen while in [the] plain-

tiff’s office.”

Over two weeks after the incident with Skoog at the Get &

Go, Royster viewed the tape Skoog had given him. It turned

out to be a partial copy containing only the first fourteen sec-

onds of the tape. Royster sought advice from his superiors and

from the District Attorney’s office. The District Attorney’s

office told him that he had sufficient evidence to approach a

judge. Royster obtained a search warrant from a magistrate

judge.

In the affidavit accompanying his application for the search

warrant, Royster stated that the reason for the warrant was to

obtain evidence of a violation of Oregon Revised Statute Sec-

tion 165.543, a statute that makes it a misdemeanor to inter-

cept oral communications when “none of the parties to the

communication has given prior consent to the interception.”2

Royster sought and received a warrant authorizing the seizure

of Skoog’s computer system and associated hardware, video

cameras, and, most important to this appeal, Skoog’s still dig-

ital camera. The affidavit asserted that the still camera should

be seized because Royster saw Skoog use the camera to take

photos of Royster and Kraus while they were in his office.

Those photos, in turn, “[we]re of additional evidentiary value

as they are independent evidence of our contact that day in

[plaintiff’s] office and may depict [plaintiff’s] computer and

2

OR. REV. STAT. § 165.543(1).

18626 SKOOG v. ROYSTER

digital [video] camera at his desk area.” Finally, the affidavit

described the protective armor, shells, and car door Royster

had seen, though it did not seek their seizure.

Royster and eleven other armed officers, some with guns

drawn, executed the warrant. Before the raid, the officers

received copies of the search warrant as well as an “Operation

Plan” that listed the armor, shells, and car door Royster had

seen in Skoog’s office and noted that Skoog had filed a law-

suit against the county. While officers seized Skoog’s equip-

ment and copied his hard drive, Skoog protested that they

were seizing attorney-client privileged communications. The

officers continued to seize the items. At some point, Royster

said that “people shouldn’t sue cops” or “it wasn’t right to sue

an officer.” The officers seized all the equipment listed on the

warrant, including the still camera.

The state refused to return the seized items for over a year

and has allegedly never returned several items, including two

tapes containing attorney-client privileged information

regarding Skoog’s state DUI defense and this case. The state

court judge found that officers had improperly reviewed privi-

leged communications found on the seized tapes and therefore

dismissed the DUI charges against Skoog that were pending

in state court. The judge also found that the search warrant

had been issued without probable cause.

Meanwhile, in federal court, Skoog amended his complaint

to add claims against Royster and the county from the search

of his office and the seizure of his equipment. Relevant to this

appeal, Skoog’s third amended complaint asserted that

Royster violated Skoog’s Fourth Amendment right to be free

of unlawful searches and seizures and that Royster obtained

and executed the warrant to retaliate against Skoog, in viola-

tion of the First Amendment, for filing his lawsuit. The dis-

trict court interpreted the retaliation claim as asserting that

Royster both obtained the warrant in retaliation for the lawsuit

and executed the warrant in a retaliatory manner. With respect

SKOOG v. ROYSTER 18627

to the execution of the warrant, the court concluded that

Skoog had asserted both that the search was conducted in an

unnecessarily aggressive manner, “in that numerous armed

officers raided his office in search of evidence of a misdemea-

nor,” and that the search was overbroad, “in that the warrant

sought plaintiff’s still camera which had nothing to do with

the alleged interception offense.”

Royster moved for summary judgment on all of Skoog’s

claims, asserting qualified immunity. The district court

granted summary judgment to Royster as to the illegal search

and seizure claim and as to all but a small part of the retalia-

tion claim.

As to the illegal search and seizure claim, the court held

that a state court’s ruling finding no probable cause did not

collaterally estop Royster from asserting the existence of

probable cause for the warrant in this case. Skoog challenges

this conclusion on appeal. The court then held that a genuine

issue of material fact existed regarding whether there was

probable cause supporting the warrant as written. The warrant

alleged a violation of Oregon Revised Statute Sec-

tion 165.543, which bars the interception of oral communica-

tions about which an expectation of privacy exists. Because

no such expectation existed when Skoog taped Royster at the

Get & Go, the court held that probable cause to believe Skoog

had violated the statute did not exist.

The court then reasoned that a question of material fact

existed regarding whether a reasonable officer might have

thought that probable cause existed. Oregon Revised Statute

Section 165.540(1)(c) prohibits the recording of conversations

without first informing the participants. That statutory provi-

sion contains no requirement that the person being taped have

an expectation of privacy. The court concluded that Royster

“essentially made a citation error when he failed to cite that

statute and instead cited O[regon] R[evised] S[tatute]

§ 165.543.” Concluding that qualified immunity should pro-

18628 SKOOG v. ROYSTER

tect officers who make such errors, the court granted sum-

mary judgment to Royster on the illegal search and seizure

claim.

The court also granted summary judgment to Royster as to

all but a small portion of Skoog’s retaliation claim. The court

denied summary judgment to Royster on plaintiff’s claim that

the search was overbroad because it included the still camera.

Although Skoog’s complaint alleged overbreadth with respect

to additional articles that were seized in the search, the court

held that Skoog had abandoned his claims regarding those

additional articles by failing to address or even mention them

in his briefing. Thus, the court only addressed Skoog’s claim

regarding the still camera.

Finally, the district court denied Skoog’s motion for leave

to amend his complaint a fourth time to add various claims.

Three appeals are before the panel. In 04-35087, Royster

appeals the district court’s denial of summary judgment on

the part of the retaliation claim involving the still camera. In

04-35286, Skoog cross-appeals the court’s limitation of the

overbreadth portion of the retaliation claim solely to the still

camera. He also cross-appeals the court’s grant of summary

judgment to Royster on the search and seizure claim and the

court’s denial of his motion for leave to amend to add a

§ 1985 claim against Royster.

In 04-35568, Skoog directly appeals the district court’s

denial of leave to amend as to two different defendants: Depu-

ties Kraus and Thompson. Skoog asserts that the district court

erred when it denied his motion for leave to file a fourth

amended complaint to add claims against those defendants.

III. Jurisdiction

When denials of summary judgment based on qualified

immunity turn on legal questions, they are immediately appeal-

SKOOG v. ROYSTER 18629

able.3 Thus, we have jurisdiction over Royster’s interlocutory

appeal of the district court’s denial of summary judgment on

Skoog’s retaliation claim involving the still camera (No. 04-

35087). We have jurisdiction under 28 U.S.C. § 1291 over

part of Skoog’s cross-appeal (No. 04-35286): his appeal of the

district court’s grant of summary judgment on the illegal

search and seizure claim. The district court determined that

the issue was inextricably intertwined with the retaliation

claim, certified it pursuant to Federal Rule of Civil Procedure

54(b), and entered a final judgment on the claim. We thus

have jurisdiction over the appeal of that final judgment.

We lack jurisdiction over the other issues in Skoog’s cross-

appeal (No. 04-35286): his assertion that the district court

erred when it limited the retaliation claim to the camera and

when it denied him to leave to amend his claims against

Royster. We also lack jurisdiction over the issues he attempts

to raise in his direct appeal (No. 04-35568): the district

court’s denial of his request for leave to file a fourth amended

complaint and the district court’s grant of summary judgment

to Clackamas County. The district court neither certified these

issues4 nor entered a final judgment regarding them. Accord-

ingly, we lack jurisdiction.5 Thus, we dismiss the part of

Skoog’s cross-appeal involving the district court’s limitation

of his retaliation claim to the still camera (No. 04-35286) and

his direct appeal (No. 04-35568).

IV. Standards of Review

We review de novo the district court’s partial denial of

Royster’s motion for summary judgment based on qualified

immunity with respect to the retaliation claim involving the

3

Mitchell v. Forsyth, 472 U.S. 511, 528 (1985).

4

Although the district court entered a second Rule 54(b) order, the order

was identical to the previous order and did not certify any new issues.

5

See, e.g., Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 993 (9th

Cir. 2004).

18630 SKOOG v. ROYSTER

still camera6 and its grant of summary judgment on Skoog’s

illegal search and seizure claim.7

V. Disussion

[1] Determining whether an official is entitled to summary

judgment based on the affirmative defense of qualified immu-

nity requires applying a three-part test.8 First, the court must

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

asserting the injury, [ ] the facts alleged show the officer’s

conduct violated a constitutional right?”9 If the answer is no,

the officer is entitled to qualified immunity. If the answer is

yes, the court must proceed to the next question: whether the

right was clearly established at the time the officer acted.10

That is, “whether it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.”11 If

the answer is no, the officer is entitled to qualified immunity.

If the answer is yes, the court must answer the final question:

whether the officer could have believed, “reasonably but mis-

takenly . . . that his or her conduct did not violate a clearly

established constitutional right.”12 If the answer is yes, the

officer is entitled to qualified immunity. If the answer is no,

he is not.

In Saucier v. Katz,13 the Supreme Court emphasized the

importance of answering the first question — whether a com-

plaint states a constitutional claim — first. If courts fail to do

6

Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004).

7

Bingham v. City of Manhattan Beach, 341 F.3d 939, 945 (9th Cir.

2003).

8

See Saucier v. Katz, 533 U.S. 194, 201-02 (2001).

9

Id. at 201.

10

Id. at 201-02.

11

Id. at 202.

12

Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001).

13

533 U.S. 194.

SKOOG v. ROYSTER 18631

so, they will not “set forth principles which will become the

basis for a holding that a right is clearly established” and will

thus short-circuit “the process for the law’s elaboration from

case to case.”14 The Court also emphasized the importance, in

the second step, of defining the right with sufficient particulari-

ty.15 Determinations of whether a right is clearly established

must be “undertaken in light of the specific context of the

case, not as a broad general proposition.”16

With the Supreme Court’s instructions in Saucier in mind,

we now consider Royster’s claim of qualified immunity with

respect to his Fourth Amendment and then First Amendment

claims.

Fourth Amendment

Royster asserted qualified immunity in response to the

claim that he violated Skoog’s Fourth Amendment rights by

obtaining a warrant and seizing the still camera without prob-

able cause. Turning to the first prong of the qualified immu-

nity analysis, we must examine the facts pled in the light most

favorable to Skoog to determine if he has asserted a violation

of the Fourth Amendment. We conclude that he has not.

With respect to the warrant, Skoog argues that we need not

conduct our own inquiry regarding probable cause because an

Oregon court has already found that the probable cause did

not exist and collateral estoppel applies. The district court

held that the state court decision was not binding because it

occurred in the DUI case the state filed against Skoog, and

Royster lacked privity with the state. We agree.

[2] This court “give[s] to a state-court judgment the same

preclusive effect as would be given that judgment under the

14

Id. at 201.

15

Id. at 201-02.

16

Id. at 201.

18632 SKOOG v. ROYSTER

law of the State in which the judgment was rendered.”17 Thus,

to determine whether the state court’s holding applies to

Royster in this litigation, we turn to Oregon law. When, as in

this case, the party against whom collateral estoppel is

asserted was not a party to the first litigation, Oregon law

requires that he or she have been in privity with a party to that

litigation.18 To be in privity with a party, a person must have

been able to “direct the course of litigation” such that he or

she “had a fair and complete opportunity to litigate the issue

of liability” in the first litigation.19 Thus, Oregon law defines

privity quite narrowly, requiring actual control.20

[3] Skoog does not allege that Royster had actual control

over the prior litigation, and it is clear that Royster did not.

The district court thus correctly held that the state court’s con-

clusion regarding probable cause does not apply. We must

therefore conduct our own analysis.

[4] Probable cause supported the warrant if the affidavit,

read “in a non-technical, common sense, and realistic manner

. . . provided a substantial basis for concluding there was a

fair probability that . . . evidence of a crime [would] be found

in [Skoog’s office].”21 In his affidavit, Royster asserted that

Skoog had recorded him without first informing him. He also

asserted that he had personally observed evidence of the

recording — the video camera, the computer to which the

17

Coeur D’Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 688 (9th

Cir. 2004) (internal quotation marks omitted).

18

Rynearson v. Firestone Tire & Rubber Co., 607 P.2d 738, 739 (Or. Ct.

App. 1979).

19

Id. at 739-40.

20

Id. at 740 and n.1 (rejecting the argument that “when the issue itself

has been fully presented, advocated and adjudicated in a prior action, a

person’s interest has been adequately represented regardless of actual right

of control” and contrasting Oregon’s strict rule with the more liberal rules

of other states).

21

United States v. Hill, 55 F.3d 479, 480 (9th Cir. 1995) (internal quota-

tion marks and citations omitted).

SKOOG v. ROYSTER 18633

video was transferred, and the video itself — in Skoog’s

office. Recording someone without first informing him vio-

lates Oregon Revised Statute Section 165.540(1)(c). The war-

rant therefore provided a substantial basis for the conclusion

that Skoog had violated Oregon law and that evidence of the

violation was in his office.

[5] Skoog makes much of the fact that Royster listed a dif-

ferent, and incorrect, statutory provision in his affidavit: Ore-

gon Revised Statute Section 165.543. As we held in United

States v. Meek,22 however, a “statutory variance in the affida-

vit is not fatal to the warrant’s validity” as long as “the affida-

vit established probable cause [ ] and the items sought under

the warrant corresponded to that probable cause determina-

tion.”23 The affidavit in this case satisfies that test. Accord-

ingly, the warrant was valid. Skoog has therefore not pled

facts that assert a violation of his Fourth Amendment rights

with respect to the warrant generally. We turn now to the

question of whether probable cause existed to seize the still

camera specifically.24

[6] Probable cause to seize the still camera existed if the

affidavit provided a “substantial basis” for believing that the

item constituted or contained evidence of the alleged crime.25

Although it is a close question, we conclude that the affidavit

did so. In the affidavit, Royster stated that Skoog took pic-

tures of Kraus and Royster. He then stated: “I know those

original photos are of additional evidentiary value as they are

independent evidence of our contact that day in that office and

may depict Mr. Skoog’s computer and digital [video] camera

22

366 F.3d 705 (9th Cir. 2004).

23

Id. at 713.

24

See United States v. Weber, 923 F.2d 1338, 1343 (9th Cir. 1990)

(explaining that probable cause must exist not only to support the warrant

but as to each item seized as well).

25

Id. (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (internal quo-

tation marks omitted).

18634 SKOOG v. ROYSTER

at his desk area in the background . . . .”26 Thus, Royster

asserted that he was certain Skoog took photos and that he

believed the photos might include depictions of the video

camera used to do the recording and the computer used to

store it. He therefore established that the camera was likely to

contain evidence, albeit indirect evidence, of the alleged

crime. This sufficed to establish probable cause.

[7] Because probable cause existed to support both the war-

rant and the seizure of the still camera, Skoog cannot plead

facts to support a violation of the Fourth Amendment. Our

qualified immunity inquiry therefore ends at the first prong

with respect to Skoog’s search and seizure claims and we

affirm the district court’s grant of summary judgment on

those claims.

First Amendment

Royster also asserted qualified immunity in his defense of

the claim that he retaliated against Skoog for filing this law-

suit against the County and another officer.27 Turning to the

first prong of the qualified immunity analysis, we must exam-

ine the facts pled in the light most favorable to Skoog to

determine if he has asserted a violation of the First Amend-

ment.

[8] To demonstrate retaliation in violation of the First

Amendment, Skoog must ultimately prove first that Royster

took action that “would chill or silence a person of ordinary

firmness from future First Amendment activities.”28 The par-

ties do not dispute that searching someone’s office and seiz-

26

Emphasis added.

27

Originally, this suit only included Clackamas County and the other

deputy. It was thus pending when Royster encountered Skoog. Skoog then

added Royster to the suit.

28

Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th

Cir. 1999).

SKOOG v. ROYSTER 18635

ing materials can satisfy this first requirement. The second

requirement is the focus in this case. That requirement

involves causation. Skoog must ultimately prove that

Royster’s desire to cause the chilling effect was a but-for

cause of the defendant’s action.29 Whether a plaintiff must

plead the absence of probable cause in order to satisfy this

second requirement and state a claim for retaliation is an open

question in this circuit30 and the subject of a split in the other

circuits.31 After close review of the relevant precedent, we

conclude that a plaintiff need not plead the absence of proba-

ble cause in order to state a claim for retaliation.

When considering the qualified immunity defense in the

retaliation context, courts must strike an appropriate balance

between protecting First Amendment rights, on the one hand,

and protecting government officials from the disruption

caused by unfounded claims, on the other.32 Two recent

29

Id.; see Hartman v. Moore, 547 U.S. ___, 126 S.Ct. 1695, 1703-04

(2006).

30

Rulings on retaliation claims in this Circuit have all involved situa-

tions in which genuine issues of material fact existed regarding whether

an objective legal ground supported the allegedly retaliatory police action

or in which no objective legal ground existed. See, e.g., Duran v. City of

Douglas, 904 F.2d 1372, 1377 (9th Cir. 1990) (finding no legitimate

ground for detention); Mendocino Envtl. Ctr., 192 F.3d at 1292-94 (find-

ing genuine issues of material fact existed regarding probable cause for

Plaintiffs’ arrests).

31

Compare Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir. 2002); Kee-

nan v. Tejeda, 290 F.3d 252, 261-62 (5th Cir. 2002), Curley v. Village of

Suffern, 268 F.3d 65, 73 (2d Cir. 2001), and Smithson v. Aldrich, 235 F.3d

1058, 1063 (8th Cir. 2000) (holding that an absence of probable cause was

required in claims of retaliatory arrest); with Greene v. Barber, 310 F.3d

889, 895 (6th Cir. 2002) and DeLoach v. Bevers, 922 F.2d 618, 620 (10th

Cir. 1990) (holding that a claim for retaliatory arrest could be made even

if probable cause existed for the arrest).

32

Hartman, 126 S. Ct. at 1702 and Crawford-El v. Britton, 523 U.S.

574, 584-85 (1998) (noting that retaliation claims, because they involve

assertions of officials’ states of mind, are “easy to allege and hard to dis-

prove”) (internal quotation marks omitted).

18636 SKOOG v. ROYSTER

Supreme Court cases provide guidance regarding this impor-

tant balance.

In Crawford-El v. Britton,33 the Supreme Court rejected a

rule adopted by the District of Columbia Circuit that required

retaliation plaintiffs to offer “clear and convincing evidence

on the [defendant’s] state-of-mind [ ] at summary judgment

and trial.”34 The rule unfairly “place[d] a thumb on the defen-

dant’s side of the scales,”35 the Court explained, by increasing

the requirements of the cause of action itself.36 The require-

ments of a cause of action should not be confused with the

doctrine designed to protect government officials: the doctrine

of qualified immunity.37 It is to that doctrine that courts

should turn to protect the “strong public interest in protecting

public officials from the costs associated with the defense of

damages actions,” the Court explained.38

In his dissent in Crawford-El, Justice Scalia proposed an

objective test under which defendants would be entitled to

judgment on retaliation claims, regardless of their subjective

intent, if some “objectively valid” legal ground existed for

their action.39 Under Justice Scalia’s proposal, presumably no

retaliation claim could be maintained against an arresting offi-

cer, regardless of his subjective reasons for the arrest, if prob-

able cause existed for the arrest.

The majority of the court rejected Justice Scalia’s “objec-

33

523 U.S. 574.

34

Id. at 583, 593-94.

35

Id. at 593.

36

Id. at 591.

37

Id. at 589 (noting that the Supreme Court “has never indicated that

qualified immunity is relevant to the existence of the plaintiff’s cause of

action”).

38

Id. at 590.

39

Id. at 612 (Scalia, J., dissenting).

SKOOG v. ROYSTER 18637

tive test” as “unprecedented.”40 The doctrine of qualified

immunity already incorporates objective standards, the Court

explained. In the second step, it requires questioning “the

state of the law at the time of the challenged conduct — [a]

question[ ] that normally can be resolved on summary judg-

ment.”41 In the third step, it focuses “on the objective legal

reasonableness of an official’s acts” as well.42 Thus, the doc-

trine incorporates objective standards and protects officials,

but at less cost to plaintiffs and to the First Amendment than

Justice Scalia’s test.43

[9] In Hartman v. Moore,44 the Supreme Court considered

whether the absence of probable cause should be an element

of a particular subcategory of retaliation claims: retaliatory

prosecution claims. The Court ultimately decided that the

absence of probable cause should be an element of that sub-

category. Although this outcome might seem to conflict with

Crawford-El, the Supreme Court’s reasoning brings it into

harmony with that earlier decision.

In Hartman, the Supreme Court was careful to explain that

the practical problems of establishing causation in retaliatory

prosecution actions motivated its decision, not any need to

provide additional protection to government officials.45

According to the Court, it makes sense to require the absence

of probable cause in retaliatory prosecution claims because

several attributes of such claims make doing so necessary and

not very onerous.

The requirement of pleading and proving no probable cause

40

Id. at 594.

41

Id. at 590.

42

Id.

43

Id. at 592-94.

44

126 S.Ct. 1695.

45

Id. at 1702-04.

18638 SKOOG v. ROYSTER

will produce little hardship on plaintiffs litigating retaliatory

prosecution claims, the Court explained. Evidence proving or

disproving the existence of probable cause is readily available

at even the earliest stages in these cases.46 In Hartman, for

example, the prosecutor had presented evidence to the grand

jury in order to persuade it to indict.47 Thus, the evidence nec-

essary to determine the existence of probable cause was read-

ily available at the earliest stages of the litigation. The added

burden of pleading and proving the absence of probable cause

in retaliatory prosecution claims, then, should not be onerous.

[10] Pleading and proving the absence of probable cause is

necessary in retaliatory prosecution cases, the Court reasoned,

because of the complexity of causation in such cases.48 Retal-

iatory prosecution claims are really “for successful retaliatory

inducement to prosecute” because they can only be main-

tained against officials, such as investigators, who may per-

suade prosecutors to act.49 To prove causation, then, a plaintiff

must show not only that the defendant official harbored retal-

iatory animus and thus sought to induce prosecution, but also

that the official succeeded — that is, that the “prosecutor [ ]

would not have pressed charges otherwise.”50 A plaintiff’s

task is particularly difficult, the Court noted, due to the “long-

standing presumption of regularity accorded to prosecutorial

decisionmaking” which courts may not “lightly discard.”51 To

justify suspending the presumption, a plaintiff must show “a

retaliatory motive on the part of an official urging prosecution

combined with an absence of probable cause supporting the

46

Id. at 1704 (noting that, in such cases “there will always be a distinct

body of highly valuable circumstantial evidence available and apt to prove

or disprove retaliatory causation, namely evidence showing whether there

was or was not probable cause to bring the criminal charge”).

47

Id. at 1700.

48

Id. at 1705-06.

49

Id. at 1704-05 (emphasis added).

50

Id. at 1705.

51

Id.

SKOOG v. ROYSTER 18639

prosecutor’s decision to go forward.”52 The requirement of no

probable cause is necessary “to bridge the gap between the

nonprosecuting government agent’s motive and the prosecu-

tor’s action, and to address the presumption of prosecutorial

regularity.”53 Thus, differences between retaliatory prosecu-

tion claims and other retaliation claims justified and necessi-

tated the additional requirement in retaliatory prosecution

claims.

[11] We conclude that the retaliation claim in this case does

not involve multi-layered causation as did the claim in Hart-

man. To be sure, one aspect of the situation in this case is

somewhat analagous to that in Hartman — a second party

(the magistrate judge in this case; the prosecutor in Hartman)

found probable cause based on the defendant’s affidavit and

the evidence that was used is readily available. However, an

important fact distinguishes the situation in this case from that

in Hartman: Royster retained control over the allegedly retal-

iatory action (the search and seizure) after the second party

(the magistrate judge) found probable cause. Causation thus

turns on his actions alone and no “bridge” between motive

and action is necessary. Thus, the rationale for requiring the

pleading of no probable cause in Hartman is absent here. This

case presents an “ordinary” retaliation claim.

Our conclusion is in accord with our precedent. Although

the Ninth Circuit has never decided this precise issue, we did

remark, in Duran v. City of Douglas,54 that the viability of the

Fourth Amendment claim rendered the First Amendment

claim “redundant.”55 We interpret this statement as a sugges-

tion that, were the Fourth Amendment claim invalid, the First

Amendment claim would not be redundant and would still be

52

Id. at 1706.

53

Id.

54

904 F.2d 1372.

55

Id. at 1378 & n.5.

18640 SKOOG v. ROYSTER

valid. Our decision today comports with that earlier sugges-

tion.

[12] We have concluded that Skoog need not have pled the

absence of probable cause in order to state a claim for retalia-

tion. Our earlier conclusion that probable cause existed for the

still camera’s seizure therefore does not preclude his state-

ment of a claim. Moreover, he has stated all the elements nec-

essary for a retaliation claim. Thus, the first prong of the

qualified immunity analysis does not end our inquiry and we

must proceed to the second.

The second prong requires us to determine whether the

right, defined according to the actual facts of the case, was

clearly established at the time of the search.56 In this case, we

define the right as the right of an individual to be free of

police action motivated by retaliatory animus but for which

there was probable cause.

[13] At the time of the search, the right we have just

defined was far from clearly established in this Circuit or in

the nation.57 We have decided only today that a right exists to

be free of police action for which retaliation is a but-for cause

even if probable cause exists for that action. At some future

point, this right will become clearly established in this Circuit.

At the time Royster acted, however, the law was far from clear.58

Accordingly, even assuming Royster’s primary motivation for

seizing Skoog’s still camera was to retaliate for Skoog’s exer-

cise of his First Amendment rights, he violated no clearly

56

See Saucier, 533 U.S. at 202.

57

Compare Dahl, 312 F.3d at 1236, Keenan, 290 F.3d at 261-62; Cur-

ley, 268 F.3d at 73, and Smithson, 235 F.3d at 1063 (holding that an

absence of probable cause was required in claims of retaliatory arrest);

with Greene, 310 F.3d at 895 and DeLoach, 922 F.2d at 620 (holding that

a claim for retaliatory arrest could be made even if probable cause existed

for the arrest).

58

Id.

SKOOG v. ROYSTER 18641

established law because probable cause existed for the search.

Royster is thus entitled to qualified immunity under the sec-

ond prong of our qualified immunity analysis.59 We therefore

reverse the district court’s denial of summary judgment on

Skoog’s claim for retaliation.

VI. Conclusion

We lack jurisdiction over Skoog’s direct appeal (No. 04-

35568) and over that part of his cross-appeal (No. 04-35286)

involving the district court’s limitation of the retaliation claim

to the still camera. We have jurisdiction over the remainder

of Skoog’s cross-appeal (No. 04-35286) and over Royster’s

interlocutory appeal (No. 04-35087). We affirm the district

court’s grant of summary judgment based on qualified immu-

nity on the search and seizure claim and reverse its denial of

summary judgment based on qualified immunity with respect

to the retaliation claim.

Appeal No. 04-35568 is DISMISSED; Appeal No. 04-

35286 is DISMISSED IN PART AND AFFIRMED IN

PART; Appeal No. 04-35087 is REVERSED, and this case is

REMANDED FOR FURTHER PROCEEDINGS IN

ACCORD WITH THIS OPINION. COSTS TO DEFEN-

DANTS.

59

Saucier, 533 U.S. at 201-02.