The opinion
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TARAHAWK VON BRINCKEN, No. 15-17025
Plaintiff-Appellee, D.C. No. 4:14-cv-02148-JAS
v.
MEMORANDUM*
JAMES MICHAEL VOSS and RICHARD
A. LEGARRA,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted October 18, 2016
San Francisco, California
Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.
Tucson police officers James Voss and Richard Legarra appeal the district
court’s order granting Tarahawk von Brincken’s motion for partial summary
judgment on von Brincken’s 42 U.S.C. § 1983 and state-law false imprisonment
claims and denying Voss and Legarra’s motion for summary judgment, which
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
asserted a qualified-immunity defense. We have jurisdiction over the issue of
qualified immunity under 28 U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511,
530 (1985), and reverse.
The district court erred when it denied Voss and Legarra’s motion for
summary judgment. Voss and Legarra are entitled to qualified immunity unless
von Brincken shows “(1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct,” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011), which he has not done.
An official violates a clearly established right if “every ‘reasonable official would
have understood that what he is doing violates that right.’” Id. at 741 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In determining whether
qualified immunity applies, the Supreme Court has reminded us “not to define
clearly established law at a high level of generality.” Id. at 742. “The general
proposition . . . that an unreasonable search or seizure violates the Fourth
Amendment is of little help in determining whether the violative nature of
particular conduct is clearly established.” Id.
An officer in Voss’s position could reasonably believe that Arizona Revised
Statutes section 28-3169(A) required that von Brincken produce his driver’s
license upon Voss’s demand, and that section 28-622 in turn made von Brincken’s
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refusal to comply with Voss’s lawful order a misdemeanor.1 While Voss
subjectively believed that von Brincken’s refusal to present his license violated a
different statute, section 28-1595(B), an officer’s “subjective reason for making the
arrest need not be the criminal offense as to which the known facts provide
probable cause,” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Because an
officer in Voss’s position could reasonably believe von Brincken committed a
misdemeanor in his presence, Voss and Legarra could reasonably believe that Voss
had the authority to arrest von Brincken, see Ariz. Rev. Stat. § 13-3883(A)(2), and
that the arrest would not violate von Brincken’s Fourth Amendment rights, see
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). Because Voss and
Legarra could reasonably believe that their conduct complied with the law, and any
unlawfulness was not clearly established (even assuming their conduct was
unlawful), they are entitled to qualified immunity. See Pearson v. Callahan, 555
U.S. 223, 244–45 (2009).
REVERSED.
1
To the extent that Voss and Legarra did not argue or brief this argument
before the district court, we nonetheless “may consider an issue raised for the first
time on appeal” where, as here, “the issue presents a pure question of law that does
not depend on the factual record developed below, or the relevant record is fully
developed.” Emmert Indus. Corp. v. Artisan Assocs., Inc., 497 F.3d 982, 986 (9th
Cir. 2007).
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FILED
von Brincken v. Voss, No. 15-17025
NOV 23 2016
THOMAS, Chief Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The Fourth Amendment serves to ensure that one may not be arrested on
suspicion of non-criminal conduct. Because Officers Voss and Legarra arrested
Tarahawk von Brincken without probable cause to believe he had committed a
crime, the Officers violated von Brincken’s clearly established constitutional
rights. Therefore, the Officers are not entitled to qualified immunity, as the district
court correctly held. Because I agree entirely with the district court’s analysis on
this issue, I must respectfully dissent.
The Fourth Amendment to the US Constitution protects people from
unreasonable searches and seizures. U.S. Const. amend. IV. The Supreme Court
has held that “Fourth Amendment seizures are reasonable only if based on
probable cause to believe that the individual has committed a crime.” Bailey v.
United States, 133 S. Ct. 1031, 1037 (2013). Officer Voss relied on Arizona
Revised Statute § 28-921(A)(1) (driving an improperly equipped vehicle) and § 28-
1595(B) (failure to produce identification) as his authority for arresting von
Brincken. However, the former statute is a civil traffic offense that does not
subject one to arrest for criminal conduct. See Allen v. City of Portland, 73 F.3d
232, 237 (9th Cir. 1995), as amended (Jan. 17, 1996) (“[P]robable cause can only
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exist in relation to criminal conduct.”). The latter statute subjects a driver to arrest
for criminal conduct for not producing a driver’s license upon the request of an
officer only if the officer first conducted a traffic stop of the driver. See In re
Moises L., 18 P.3d 1231, 1232 (Ariz. Ct. App. 2000), as amended (Feb. 8, 2001)
(“Under § 28-1595(B), a motor vehicle operator stopped by a peace officer must
exhibit an ‘operator[’]s driver license.’”). Because it is undisputed that Officer
Voss did not conduct a traffic stop of von Brincken before demanding to see his
driver’s license, the arrest for failure to produce the driver’s license lacked
probable cause and was therefore unconstitutional. To hold otherwise, as the
majority does, turns a traffic offense statute into a “stop and show me your papers”
statute.
Furthermore, the right to be free from unreasonable seizures was clearly
established at the time of von Brincken’s arrest. This is so even though the
Arizona Supreme Court has not previously held that being pulled over while
driving is a prerequisite to a reasonable arrest pursuant to Arizona Revised Statute
§ 28-1595(B). See Demuth v. Cty. of Los Angeles, 798 F.3d 837, 839 (9th Cir.
2015) (“While the law must be unambiguous to overcome qualified immunity, that
doesn’t mean that every official action is protected . . . unless the very action in
question has previously been held unlawful. [O]fficials can still be on notice that
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their conduct violates established law even in novel factual circumstances. This is
especially true in the Fourth Amendment context, where the constitutional
standard— reasonableness—is always a very fact-specific inquiry.”) (internal
citations and quotation marks omitted).
Officers Voss and Legarra violated von Brincken’s clearly established
constitutional right to be free from an unreasonable seizure. As a result, they are
not entitled to qualified immunity, as the district court properly held.
I respectfully dissent.
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