“Qualified immunity shields government officials from civil damages liability unless the offi cial violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.”
How later courts described this case
- “Qualified immunity shields government officials from civil damages liability unless the offi cial violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.”
- noting, that Hartman “injected uncertainty into the law governing retaliatory arrests, particularly in light of .., the close relationship between retaliatory arrest and prosecution claims”
Written by the judges who cited it.
The opinion
FILED
NOT FOR PUBLICATION
JUN 06 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID PICRAY, No. 14-35147
Plaintiff - Appellee, D.C. No. 6:12-cv-00944-MC
v.
MEMORANDUM*
CHRISTOPHER DUFFITT and GREG
RIDLER,
Defendants - Appellants,
and
BENTON COUNTY,
Defendant.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted April 8, 2016
University of Oregon, Eugene, Oregon
Before: GOODWIN, O’SCANNLAIN, and LEAVY, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Benton County Sheriff’s Deputy Christopher Duffitt and Captain Greg
Ridler appeal from the district court’s order on summary judgment denying their
motion for qualified immunity. David Picray brought this action under 42 U.S.C.
§ 1983, contending that defendants arrested him and subsequently searched his
home in retaliation for his protected speech. We have jurisdiction under 28 U.S.C.
§ 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (an order denying
qualified immunity is appealable under § 1291 notwithstanding the absence of a
final judgment). We review de novo. Wilkins v. City of Oakland, 350 F.3d 949,
954 (9th Cir. 2003). We reverse the district court’s denial of qualified immunity
and remand for further proceedings.
The purported right to be free from a retaliatory arrest that is otherwise
supported by probable cause was not clearly established in this circuit at the time
of Picray’s arrest. See Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)
(“Qualified immunity shields government officials from civil damages liability
unless the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.”). In Hartman v. Moore, 547
U.S. 250, 265-66 (2006), the Supreme Court held that a plaintiff must plead and
prove the absence of probable cause to support a claim for retaliatory prosecution.
At the time of Picray’s arrest in 2010, however, our case law was far from clear
2
about Hartman’s application in the context of retaliatory arrest claims. Compare
Beck v. City of Upland, 527 F.3d 853, 863-64 (9th Cir. 2008) (stating that under
Hartman, a plaintiff must prove the absence of probable cause to prevail on a claim
for retaliatory arrest or prosecution), with Dietrich v. John Ascuaga’s Nugget, 548
F.3d 892, 901 (9th Cir. 2008) (stating that the existence of probable cause is “not
dispositive” in a retaliatory arrest claim); see also Reichle, 132 S. Ct. at 2096-97
(noting that Hartman “injected uncertainty into the law governing retaliatory
arrests, particularly in light of . . . the close relationship between retaliatory arrest
and prosecution claims”).1 Given that uncertainty, we cannot conclude that the law
was clearly established for purposes of qualified immunity.
Viewing the facts in the light most favorable to Picray, see Wilkins, 350 F.3d
at 954, defendants had probable cause to arrest Picray for Recklessly Endangering
Another Person and Reckless Driving. See Or. Rev. Stat. §§ 163.195 (Recklessly
Endangering Another Person), 811.140 (Reckless Driving). In addition to the
evidence that the district court cited, Duffitt sought advice from an assistant district
1
We note that we held in Ford v. City of Yakima, 706 F.3d 1188, 1196 (9th
Cir. 2013), that Skoog v. County of Clackamas, 469 F.3d 1221, 1233-35 (9th Cir.
2006), established that police action motivated by retaliatory animus is unlawful
even where probable cause exists. However, Skoog concerned only a retaliatory
search, and the arrest at issue in Ford took place in 2007, before either Beck or
Dietrich was decided.
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attorney before making the arrest, supporting an inference that he acted in good
faith. See Ewing v. City of Stockton, 588 F.3d 1218, 1231 (9th Cir. 2009)
(observing that although “an officer’s consultation with a prosecutor is not
conclusive[,] . . . it is evidence of good faith” that may “tip[] the scale in favor of
qualified immunity”).
Defendants also are entitled to qualified immunity for their search of
Picray’s home. Under the clearly established prong of qualified immunity, “[t]he
dispositive question is ‘whether the violative nature of particular conduct is clearly
established.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v. al-
Kidd, 563 U.S. 731, 742 (2011)). Unlike the search at issue in Skoog v. County of
Clackamas, 469 F.3d at 1231, probable cause strongly supported the search since
the items sought could have contained direct documentary evidence of Picray’s
alleged crimes. And defendants’ “previous negative interactions” with Picray
create only a “weak inference” of retaliation, insufficient to sustain his claim. See
Dietrich, 548 F.3d at 901. We therefore reverse the district court’s denial of
qualified immunity.
REVERSED and REMANDED.
4