Dietrich v. Cardella

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JANELLE DIETRICH, 

Plaintiff-Appellant,

v. No. 06-17135

D.C. No.

JOHN ASCUAGA’S NUGGET;

MICHELLE MALCHOW; LARRY  CV-04-00468-

HARVEY; CITY OF SPARKS; SPARKS BES(VPC)

POLICE; OFFICER POTTER; and OPINION

OFFICER MIKE CARDELLA,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

Brian E. Sandoval, District Judge, Presiding

Argued June 10, 2008

Submitted November 20, 2008

San Francisco, California

Filed December 1, 2008

Before: J. Clifford Wallace and Susan P. Graber,

Circuit Judges, and Robert J. Timlin,* District Judge.

Opinion by Judge Graber

*The Honorable Robert J. Timlin, United States District Judge for the

Central District of California, sitting by designation.

15849

15852 DIETRICH v. JOHN ASCUAGA’S NUGGET

COUNSEL

Martin G. Crowley, American Legal Services, Reno, Nevada,

for the plaintiff-appellant.

DIETRICH v. JOHN ASCUAGA’S NUGGET 15853

Stanley H. Brown, Jr., Reno, Nevada, and Nicholas F. Frey

and Stephen S. Kent, Woodburn and Wedge, Reno, Nevada,

for the defendants-appellees.

OPINION

GRABER, Circuit Judge:

Every year, thousands of people attend the “Best in the

West Nugget Rib Cook-Off,” a multi-day event in downtown

Sparks, Nevada. In 2002, Plaintiff Janelle Dietrich attended

the event and attempted to register voters and to gather signa-

tures for a political petition. Her activities prompted two inci-

dents that resulted in the filing of this action.

On the first day, a police officer ordered Plaintiff to move

to another location, under threat of arrest if she refused to do

so. After 30 minutes at the new location she left, but quickly

contacted the American Civil Liberties Union and one of the

event’s organizers. She was allowed by the event’s organizer

to return the next morning and to conduct her political activi-

ties for the remaining days of the event at the original location

and a second satisfactory location. On the third day, however,

a second police officer cited her for a traffic violation, alleg-

edly in retaliation for publicity about her first-day activities in

a local newspaper.

Plaintiff filed suit under 42 U.S.C. § 1983, alleging viola-

tions of her First Amendment right to free speech and naming

as defendants the police officers, the event’s organizers, the

Sparks Police Department, and the City of Sparks. The district

court held that no constitutional violations had occurred and

granted summary judgment to all Defendants. We affirm in

part, reverse in part, and remand for further proceedings.

15854 DIETRICH v. JOHN ASCUAGA’S NUGGET

FACTUAL AND PROCEDURAL HISTORY

Defendant John Ascuaga’s Nugget (“Nugget”), a private

business that operates primarily in Sparks, Nevada, hosts the

annual Best in the West Nugget Rib Cook-Off. The 2002

Cook-Off (“Cook-Off”) lasted four days: Thursday, August

29, through Sunday, September 1.1 The event occurred on

Victorian Square, a downtown public area. Pursuant to local

regulations, Nugget had applied for, and received, a Special

Event Permit for the Cook-Off from Defendant City of

Sparks. The permit application stated that it would be neces-

sary to close certain city streets and sidewalks in and around

Victorian Square.

At the time of the Cook-Off, Plaintiff was a volunteer for

a local political organization, Citizens for the Right to Vote

(“Citizens group”). The organization was created in an effort

to recall four city council members of the neighboring city of

Reno, Nevada. Part of the organization’s efforts included

gathering signatures for a recall petition and registering vot-

ers, and the organization decided to conduct those activities

at the Cook-Off.

On Thursday, Plaintiff and other volunteers arrived at the

Cook-Off and set up a table on the public sidewalk at Victo-

rian and 14th streets. Defendant Michelle Malchow, an

employee of Nugget, approached the group and insisted that

they leave. Malchow told the group that, because Nugget had

a permit covering the sidewalk in question, the sidewalk was

no longer public. The group refused to leave, and Malchow

summoned Defendant Sparks Police Officer Mike Cardella.

Officer Cardella told the group that, if they did not move to

another location, they would be arrested.

1

Because all events took place over those four days, we will refer to

days of the week instead of calendar dates.

DIETRICH v. JOHN ASCUAGA’S NUGGET 15855

Officer Cardella then escorted the group, including Plain-

tiff, to another public sidewalk, outside the boundaries of the

Cook-Off, approximately a block and a half away. Plaintiff

testified at her deposition that there were no passersby at the

new location and that the group was therefore unable to col-

lect any signatures. After 30 minutes, Plaintiff gave up and

went home.

On Friday morning, the Citizens group contacted the Amer-

ican Civil Liberties Union and Defendant Larry Harvey, vice-

president of Nugget. Harvey assured the members of the Citi-

zens group that they could return to their original location as

long as they did not impede pedestrian traffic or pose a safety

risk. The Citizens group returned to the original location and

a second satisfactory location at the Cook-Off. The organiza-

tion successfully gathered signatures and registered voters at

those two locations for the rest of the long weekend without

incident (other than Plaintiff’s traffic citation, discussed

below). Plaintiff worked at the original location for three days

—Friday, Saturday, and Sunday.

On Friday evening, a local newspaper ran a front page arti-

cle titled “Victorian stage for petition standoff: Group seeking

petition signatures and registering voters forced to leave city

street.” On Saturday, Plaintiff drove her pickup truck, loaded

with the organization’s signs and table, to the petitioning and

registration location. In order to reach the drop-off point,

Plaintiff passed a barricade with a “road closed” sign. Mal-

chow and police officers, including Defendant Sparks Police

Officer Potter, approached Plaintiff after she arrived at the

drop-off point. Officer Potter cited her for failing to obey a

traffic device, despite her explanation that a fire officer had

allowed her to pass beyond the barricade. Plaintiff parked her

truck elsewhere and then rejoined the organization’s petition-

ing and registration effort.

Plaintiff challenged the citation in municipal court but was

found guilty. She appealed to the state district court, which

affirmed her conviction.

15856 DIETRICH v. JOHN ASCUAGA’S NUGGET

Plaintiff then filed the present action in federal district

court under 42 U.S.C. § 1983, seeking monetary damages for

two alleged violations of her First Amendment rights.2 First,

she alleges a constitutional violation stemming from her

removal from the desired petitioning and registration location

on Thursday. Second, she alleges that the traffic citation on

Saturday was in retaliation for the local newspaper article,

which publicized Thursday’s incident.

Plaintiff brings claims against three categories of defen-

dants: (1) a private entity and private persons: Nugget and two

of its employees, Harvey and Malchow; (2) municipal enti-

ties: the City of Sparks and the Sparks Police Department; and

(3) individual police officers. Plaintiff’s claim concerning her

removal on Thursday is brought against Officer Cardella, and

her retaliation claim for the traffic citation on Saturday is

brought against Officer Potter.

The district court held that there was no constitutional vio-

lation on either day and granted summary judgment to all

Defendants. Plaintiff timely appeals.3

2

She also brought several other claims but, on appeal, does not chal-

lenge the dismissal of those claims.

3

A second annual event in Nevada factors into this appeal: Nevada Day.

Nevada Day is a state legal holiday that celebrates the state’s admission

to the Union. Nevada Day occurs on October 31, but is “observed on the

last Friday in October.” Nev. Rev. Stat. § 236.015(1); see also

http://www.nevadaday.com/. In 2006, Nevada Day was observed on Fri-

day, October 27.

The judgment became final no earlier than September 27, 2006, and the

notice of appeal was filed on Monday, October 30, 2006. We inquired at

argument whether the notice of appeal was untimely, but the existence of

Nevada Day removes our concern. See Fed. R. Civ. P. 6(a)(3) (“Include

the last day of the period unless it is a . . . legal holiday . . . .”); Fed. R.

Civ. P. 6(a)(4) (“As used in these rules, ‘legal holiday’ means: . . . (B) any

other day declared a holiday by . . . the state where the district court is

located.”). In a separate order filed concurrently with this opinion, we

therefore deny the post-argument motion to dismiss the appeal as

untimely.

DIETRICH v. JOHN ASCUAGA’S NUGGET 15857

STANDARD OF REVIEW

We review de novo summary judgment and may affirm on

any ground supported by the record. ACLU of Nev. v. City of

Las Vegas, 333 F.3d 1092, 1096-97 (9th Cir. 2003). “We

must determine, viewing the evidence in the light most favor-

able to the nonmoving party, whether there are any genuine

issues of material fact and whether the district court correctly

applied the relevant substantive law.” Id. at 1097.

DISCUSSION

Defendants make two arguments in response to Plaintiff’s

two § 1983 claims. First, they argue that no constitutional vio-

lation occurred. Second, they argue that, even if a constitu-

tional violation occurred, Plaintiff’s claims under § 1983

nevertheless fail. The details of this latter argument vary by

Defendant. The police officers argue that they are entitled to

qualified immunity under Saucier v. Katz, 533 U.S. 194

(2001). The private parties argue that they were not acting

“under color of state law,” as required by 42 U.S.C. § 1983.

See DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir.

2000) (setting forth the requirements for private party liability

under § 1983). And the municipal entities argue that they did

not have a policy or custom of violating the First Amendment.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)

(setting forth the requirements for municipal liability under

§ 1983).

Because Plaintiff brings both of her § 1983 claims against

police officers, we must first determine whether, viewing the

facts in the light most favorable to Plaintiff, a constitutional

violation occurred. Saucier, 533 U.S. at 201. If so, we then

must determine whether the claims can proceed against each

Defendant.

15858 DIETRICH v. JOHN ASCUAGA’S NUGGET

A. First Amendment Claim for Forced Removal on

Thursday

1. Constitutional Violation

Defendants’ removal of Plaintiff from her original location

at the Cook-Off on Thursday stands at the intersection of two

private parties’ First Amendment rights. On the one side, the

First Amendment plainly protects Plaintiff’s activities—

gathering signatures for a political petition and registering

voters. See Morse v. Frederick, 127 S. Ct. 2618, 2626 (2007)

(“Political speech, of course, is at the core of what the First

Amendment is designed to protect.” (internal quotation marks

omitted)). And there is no question that her location—a public

sidewalk—is a “quintessential public forum[ ],” where protec-

tion for freedom of speech is at its height. Burson v. Freeman,

504 U.S. 191, 196 (1992).

On the other side, Defendant Nugget secured a permit from

the City of Sparks to hold its Cook-Off on public land. Defen-

dant Nugget argues not that the Cook-Off was a form of polit-

ical expression, but rather that Nugget wished to exercise its

First Amendment right not to speak on political issues.4 The

Supreme Court has stated:

The essential thrust of the First Amendment is to

prohibit improper restraints on the voluntary public

expression of ideas; it shields the man who wants to

speak or publish when others wish him to be quiet.

There is necessarily, and within suitably defined

areas, a concomitant freedom not to speak publicly,

4

There may be a difference, for First Amendment purposes, between sit-

uations in which the speaker conveys a political message that itself is pro-

tected by the First Amendment and situations, like this one, in which the

speaker wishes to refrain from expressing a political message. Because the

result in this case is unaffected, we need not, and do not, address that

issue.

DIETRICH v. JOHN ASCUAGA’S NUGGET 15859

one which serves the same ultimate end as freedom

of speech in its affirmative aspect.

Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S.

539, 559 (1985) (internal quotation marks and an emphasis

omitted).

[1] To resolve those competing interests, both of which the

First Amendment protects, we are guided primarily by the

Supreme Court’s decision in Hurley v. Irish-American Gay,

Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557

(1995), and our decision in Gathright v. City of Portland, 439

F.3d 573 (9th Cir.), cert. denied, 127 S. Ct. 76 (2006). As in

those cases, Plaintiff’s activities occurred in a traditional pub-

lic forum, where “the government may regulate the time,

place, and manner of the expressive activity, so long as such

restrictions are content neutral, are narrowly tailored to serve

a significant governmental interest, and leave open ample

alternatives for communication.” Burson, 504 U.S. at 197.

In Hurley, the Supreme Court addressed the competing

interests of the Irish-American Gay, Lesbian & Bisexual

Group (“GLIB”), which wished to march in the annual South

Boston St. Patrick’s Day Parade, and the organizers of the

parade, who wished to exclude the organization from partici-

pating. The Court first noted the intrinsically expressive

nature of a parade and the “equally expressive” nature of

GLIB’s desired participation in it. Hurley, 515 U.S. at 568-70.

The Court held that the parade organizers’ choice of message

“is presumed to lie beyond the government’s power to con-

trol” and that, in the circumstances of that case, the parade

organizers could not be required to allow participation by

GLIB. Id. at 575.

The Court’s decision hinged on the practical aspects of an

expressive parade: “[I]n the context of an expressive parade,

as with a protest march, the parade’s overall message is dis-

tilled from the individual presentations along the way, and

15860 DIETRICH v. JOHN ASCUAGA’S NUGGET

each unit’s expression is perceived by spectators as part of the

whole.” Id. at 577. In the Court’s view, there was no effective

way for the parade’s organizers to disclaim the views of GLIB

as not their own. Id. at 579-80. The Court contrasted the situa-

tion in PruneYard Shopping Center v. Robins, 447 U.S. 74

(1980), where the Court had “sustained a state law requiring

the proprietors of shopping malls to allow visitors to solicit

signatures on political petitions.” Hurley, 515 U.S. at 580.

PruneYard presented a different case because, there, the Court

had found that

the proprietors were running “a business establish-

ment that is open to the public to come and go as

they please,” that the solicitations would “not likely

be identified with those of the owner,” and that the

proprietors could “expressly disavow any connection

with the message by simply posting signs in the area

where the speakers or handbillers stand.”

Hurley, 515 U.S. at 580 (quoting PruneYard, 447 U.S. at 87).

We applied Hurley in Gathright, a case with facts similar

to those before us today. As here, the city’s code allowed a

person to obtain a permit for use of public spaces. Gathright,

439 F.3d at 575. The plaintiff, a private citizen, attended “pri-

vately sponsored, City-permitted events open to the public”

and engaged in behavior that many attendees found offensive.

See id. (for example, calling women “whores” and wearing a

T-shirt reading “Got AIDS Yet?” at an event celebrating tol-

erance of homosexuality). Pursuant to city code and police

policy, the police removed the plaintiff from permitted events

on several occasions. Id.

We held that the actions of the police violated the plain-

tiff’s First Amendment rights. Although we expressed some

reservations, we accepted for purposes of the appeal the city’s

argument that “its policy is content neutral and that it has a

significant interest in protecting the free speech rights of peo-

DIETRICH v. JOHN ASCUAGA’S NUGGET 15861

ple and organizations who have obtained permits to use a pub-

lic park for an event open to the public.” Id. at 577 & n.3.

Nonetheless, we held that “the policy of allowing permittees

unfettered discretion to exclude private citizens on any (or no)

basis is not narrowly tailored to the City’s legitimate interest

in protecting its permittees’ right under Hurley.” Id. at 577.

We distinguished Hurley on the ground that “there [wa]s no

risk that Gathright’s provocations could be mistaken by any-

body as part of the message of the events he protests.” Id. at

578.

We found persuasive the reasoning of Parks v. City of

Columbus, 395 F.3d 643, 654 (6th Cir. 2005), a case with

very similar facts. Gathright, 439 F.3d at 578. Unlike in Hur-

ley, the plaintiffs in Gathright and Parks “ ‘d[id] not seek

inclusion in the speech of another group.’ ” Gathright, 439

F.3d at 578 (quoting Parks, 395 F.3d at 651). Instead, each

plaintiff was “ ‘merely another attendee’ of a permitted event

open to the public, in a public forum.” Id. (quoting Parks, 395

F.3d at 651). Because the city’s policy was not narrowly tai-

lored, we did not reach the third prong of the analysis—

whether the city’s policy left open ample alternative channels

of communication. Id. at 577.

[2] We now turn to the facts of this case. We begin by not-

ing that the government “has a strong interest in ensuring the

public safety and order [and] in promoting the free flow of

traffic on public streets and sidewalks.” Madsen v. Women’s

Health Ctr., Inc., 512 U.S. 753, 768 (1994). If Defendants had

changed Plaintiff’s petitioning and registration location to

protect safety or the free flow of pedestrian traffic, we would

face a different question. But Defendants do not assert that

Plaintiff’s activities would cause, or did cause, any safety or

traffic concerns at her desired location. Instead, Defendants

argue only that their rights under the Special Event Permit

allowed them to exclude Plaintiff.

[3] As in Gathright, 439 F.3d at 577 & n.3, we accept for

purposes of this appeal, without deciding, that Defendants’

15862 DIETRICH v. JOHN ASCUAGA’S NUGGET

actions on Thursday were content neutral and that protecting

the rights of permittees is a significant governmental interest.

But, again as in Gathright, we hold that Defendants’ actions

were not narrowly tailored to the government’s interest in

protecting the permittee’s rights. As in Gathright and Parks,

the permitted event was open to the public, and there is little

chance that the public would have viewed Plaintiff’s petition-

ing activities as endorsed by the Cook-Off. To the extent that

such a concern existed, Defendant Nugget easily could have

disclaimed Plaintiff’s activities with a sign or through some

other simple mechanism. The reasoning of the Supreme Court

in PruneYard applies with equal force here:

The views expressed by [Plaintiff] in passing out

pamphlets or seeking signatures for a petition thus

will not likely be identified with those of the [Cook-

Off]. . . . [A]s far as appears here [Defendant Nug-

get] can expressly disavow any connection with the

message [of Plaintiff] by simply posting signs in the

area where [Plaintiff] stand[s]. Such signs, for exam-

ple, could disclaim any sponsorship of the message

and could explain that [Plaintiff is] communicating

[her] own messages by virtue of [the First Amend-

ment].

447 U.S. at 87.

[4] Defendants’ conduct resulting in a complete exclusion

of Plaintiff on Thursday, for no reason other than the asserted

right of the permittees to exclude anyone expressing a politi-

cal message, violated the First Amendment. We therefore do

not reach the question whether ample alternative channels of

communication existed. See Gathright, 439 F.3d at 577

(“Because the City’s policy is not narrowly tailored, we do

not reach whether it leaves open ample alternative channels of

communication.”); see also United States v. Grace, 461 U.S.

171, 180 (1983) (rejecting the government’s argument that a

ban on picketing and leafletting on the sidewalk in front of the

DIETRICH v. JOHN ASCUAGA’S NUGGET 15863

Supreme Court was permissible because “there are sufficient

alternative areas . . . , such as the streets around the Court or

the sidewalks across those streets”).

[5] We therefore reverse the district court’s conclusion as

a matter of law that no constitutional violation occurred.

2. Liability of Defendants

As noted, each Defendant argues that Plaintiff’s § 1983

claim cannot proceed, even if there was a constitutional viola-

tion. We address below those arguments for the three types of

defendants in this case.

[6] Officer Cardella argues that he is protected by qualified

immunity. Qualified immunity applies if the constitutional

right was “clearly established” so that “it would be clear to a

reasonable officer that his conduct was unlawful in the situa-

tion he confronted.” Saucier, 533 U.S. at 202. Because the

district court held that no constitutional violation occurred, it

did not reach the question whether Officer Cardella was pro-

tected by qualified immunity. We have held that a First

Amendment violation did occur. Therefore, we reverse the

summary judgment in favor of Defendant Cardella and

remand for the district court to determine, in the first instance,

whether he is protected by qualified immunity.

[7] The private parties argue that they were not acting

“under color of state law,” a requirement for liability under

§ 1983. Collins v. Womancare, 878 F.2d 1145, 1148 (9th Cir.

1989). “Under § 1983, a claim may lie against a private party

who ‘is a willful participant in joint action with the State or

its agents. Private persons, jointly engaged with state officials

in the challenged action, are acting “under color” of law for

purposes of § 1983 actions.’ ” DeGrassi, 207 F.3d at 647

(quoting Dennis v. Sparks, 449 U.S. 24, 27-28 (1980)). “How-

ever, a bare allegation of such joint action will not overcome

a motion to dismiss; the plaintiff must allege facts tending to

15864 DIETRICH v. JOHN ASCUAGA’S NUGGET

show that [Defendants] acted under color of state law or

authority.” DeGrassi, 207 F.3d at 647 (internal quotation

marks omitted).

[8] Here, Plaintiff’s bare allegation that “[t]he defendants

acted in concert in . . . removing [P]laintiff and other

[p]etition gatherers from the public sidewalk” is insufficient

to establish joint action. There is no evidence that Defendants

Nugget, Harvey, and Malchow did anything more than sum-

mon police. “[M]erely complaining to the police does not

convert a private party into a state actor.” Collins, 878 F.2d

at 1155. We therefore affirm the summary judgment in favor

of Defendants Nugget, Harvey, and Malchow.

[9] The municipal entities argue that they are not liable

because there is no municipal policy or custom of excluding

persons from permitted events on public land. Under Monell,

§ 1983 claims may be brought against municipalities only if

a plaintiff demonstrates injury resulting from “execution of a

government’s policy or custom, whether made by its lawmak-

ers or by those whose edicts or acts may fairly be said to rep-

resent official policy.” 436 U.S. at 694. There is no

respondeat superior liability. Id. at 691. We have stated

four conditions that must be satisfied in order to

establish municipal liability for failing to act to pre-

serve constitutional rights: (1) that the plaintiff pos-

sessed a constitutional right of which he was

deprived; (2) that the municipality had a policy; (3)

that this policy amounts to deliberate indifference to

the plaintiff’s constitutional right; and (4) that the

policy is the moving force behind the constitutional

violation.

Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir.

1996) (internal quotation marks omitted).

[10] Plaintiff does not point to any portion of the Sparks

Municipal Code that prohibits or restricts a person’s exercise

DIETRICH v. JOHN ASCUAGA’S NUGGET 15865

of his or her First Amendment rights as a matter of city pol-

icy. The actions of Officer Cardella on one day, without more,

cannot establish a custom, policy, practice, or procedure.

Defendants submitted an affidavit from the Chief of Police

that the Sparks Police Department had no such custom, pol-

icy, practice, or procedure to exclude private citizens exercis-

ing their First Amendment rights from specially permitted

areas, and Plaintiff failed to rebut that evidence. We therefore

affirm the summary judgment in favor of Defendants City of

Sparks and Sparks Police Department.

B. First Amendment Retaliation Claim for the Saturday

Traffic Citation

[11] Plaintiff’s second claim for a violation of her First

Amendment rights concerns the traffic citation that she

received on Saturday from Officer Potter. She argues that she

was cited in retaliation for exercising her First Amendment

rights. Specifically, she contends that the publication of the

newspaper article on Friday evening led to her traffic citation

on Saturday.

To demonstrate retaliation in violation of the First

Amendment, [Plaintiff] must ultimately prove first

that [Defendants] took action that would chill or

silence a person of ordinary firmness from future

First Amendment activities. . . . The second require-

ment is [that] . . . [Plaintiff] must ultimately prove

that [Defendants’] desire to cause the chilling effect

was a but-for cause of [Defendants’] action.

Skoog v. County of Clackamas, 469 F.3d 1221, 1231-32 (9th

Cir. 2006) (internal quotation marks and footnote omitted).

[12] Plaintiff cannot establish causation. Her only theory is

that Defendants read the newspaper article and cited her

because of it (and not because she drove past a police barri-

cade with a “road closed” sign on it). But there is no evidence

15866 DIETRICH v. JOHN ASCUAGA’S NUGGET

that Defendants read the newspaper article. Plaintiff did not

testify at her deposition that any of the Defendants mentioned

it during the incident. She did not depose Defendants to ask

them whether they had read the article, let alone whether they

cited her because of it.

[13] Furthermore, Defendant Potter plainly had probable

cause to cite Plaintiff: She does not dispute that she drove past

the police barricade. Although she challenged the citation in

municipal court, that court convicted her and the appellate

court upheld the conviction. In Hartman v. Moore, 547 U.S.

250, 265-66 (2006), the Supreme Court held that, when a

plaintiff claims prosecution in retaliation for an exercise of a

First Amendment right, the plaintiff must plead and prove that

the defendant lacked probable cause. In Skoog, we limited

Hartman to cases involving “retaliatory prosecution claims”;

failure to plead and prove probable cause is therefore not dis-

positive with regard to “ ‘ordinary’ retaliation claim[s].”

Skoog, 469 F.3d at 1234.5 This is not a retaliatory prosecution

claim. Under Skoog, then, the fact that Defendants had proba-

ble cause is not dispositive. But it undoubtedly “ha[s] high

probative force.” Hartman, 547 U.S. at 265.

In Skoog, we held that the retaliatory First Amendment

claim survived summary judgment when there was barely

enough evidence to conclude that there was probable cause,

while there was strong evidence of a retaliatory motive. See

469 F.3d at 1231 (holding that, “[a]lthough it is a close ques-

tion, we conclude that” sufficient evidence existed to support

a finding of probable cause); id. at 1225-26 (recounting the

strong circumstantial evidence of retaliatory motive). Espe-

5

We have acknowledged that a majority of circuits that had considered

the issue had declined to limit Hartman in that manner. Skoog, 469 F.3d

at 1232 & n.31; see also Beck v. City of Upland, 527 F.3d 853, 864 (9th

Cir. 2008) (expanding the reach of Hartman to certain Fourth Amendment

cases because we saw “no reason to limit Hartman’s probable cause

requirement solely to First Amendment retaliatory arrest and prosecution

cases”).

DIETRICH v. JOHN ASCUAGA’S NUGGET 15867

cially given the importance of “protecting government offi-

cials from the disruption caused by unfounded claims,” id. at

1232, this case—which has very strong evidence of probable

cause and very weak evidence of a retaliatory motive—falls

outside the reach of Skoog. Importantly, if it did not, then

nearly every retaliatory First Amendment claim would sur-

vive summary judgment. There is almost always a weak infer-

ence of retaliation whenever a plaintiff and a defendant have

had previous negative interactions; holding that this case sur-

vives summary judgment would provide almost no “protect-

[ion for] government officials from the disruption caused by

unfounded claims.” Id.

[14] We conclude that no reasonable juror could find from

the undisputed facts that Defendants acted in retaliation for

Plaintiff’s First Amendment activities when Officer Potter

gave her a traffic citation. We therefore affirm the district

court’s summary judgment to all Defendants on this claim.

CONCLUSION

We reverse summary judgment in favor of Defendant Car-

della concerning his coerced removal of Plaintiff to an alter-

native location on Thursday, August 29, 2002. We remand

that claim for the district court to determine, in the first

instance, whether Defendant Cardella is protected by qualified

immunity or whether, instead, factual issues remain for trial.

We affirm summary judgment in favor of all other Defen-

dants.

AFFIRMED in part; REVERSED in part and

REMANDED. All Defendants, except for Cardella, shall be

awarded costs on appeal. On the claim against Cardella, the

parties shall bear their own costs on appeal.