Anthony Reed v. Doug Lieurance

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY PATRICK REED, Nos. 15-35018

Plaintiff-Appellant/ 15-35179

Cross-Appellee,

D.C. No.

v. 2:13-cv-00017-SEH

DOUG LIEURANCE, in his

individual capacity; BRIAN OPINION

GOOTKIN, in his individual

capacity; GALLATIN COUNTY

SHERIFF’S OFFICE, a department

of Gallatin County; and

GALLATIN COUNTY,

Defendants-Appellees/

Cross-Appellants.

Appeals from the United States District Court

for the District of Montana

Sam E. Haddon, Senior District Judge, Presiding

Argued and Submitted April 5, 2017

Seattle, Washington

Filed July 24, 2017

2 REED V. LIEURANCE

Before: Alex Kozinski and William A. Fletcher, Circuit

Judges, and John R. Tunheim,* Chief District Judge.

Opinion by Judge Tunheim

SUMMARY**

Civil Rights

The panel reversed the district court’s summary judgment,

the district court’s Fed. R. Civ. P. 12(b)(6) dismissals, and its

judgment as a matter of law, and dismissed for lack of

jurisdiction an appeal from the district court’s order denying

defendants’ motion for attorney fees, in an action brought

pursuant to 42 U.S.C. § 1983 and state law.

Plaintiff Anthony Reed alleged that his constitutional

rights were violated when he was arrested and cited while

volunteering to observe an interagency government

operation to herd buffalo into Yellowstone National Park.

Construing the facts in Reed’s favor, the panel could not

conclude that as a matter of law, a reasonably prudent officer

in defendant Deputy Lieurance’s situation would have had

probable cause to believe that Reed obstructed the herding

operation. The panel determined that the district court

*

The Honorable John R. Tunheim, Chief United States District Court

Judge for the District of Minnesota, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

REED V. LIEURANCE 3

improperly invaded the province of the jury when it resolved

factual disputes material to the question of probable cause.

Thus, defendants were not entitled to summary judgment on

Reed’s unlawful seizure claim.

The panel reversed the district court’s sua sponte

dismissal, pursuant to Fed. R. Civ. P. 12(b)(6), of Reed’s

failure-to-train claim on the grounds that the district court did

not first provide Reed with notice and an opportunity to

respond before dismissing the claim. The panel further held

that the district court abused its discretion by excluding the

testimony of Reed’s police practices expert as it related to the

failure-to-train claim.

The panel held that the district court committed reversible

error in granting judgment as a matter of law on Reed’s First

Amendment and related state claims without first providing

Reed notice of the grounds for the decision. Addressing the

merits of the First Amendment claim, the panel held that in

ruling that defendants were entitled to judgment as a matter

of law, the district court improperly resolved numerous

factual disputes reserved for the jury.

The panel determined that it lacked jurisdiction to review

the district court’s denial without prejudice of defendants’

motion for attorney fees and therefore dismissed defendants’

cross-appeal from that order. On remand, the panel ordered

that the case be reassigned to a different district judge.

4 REED V. LIEURANCE

COUNSEL

Rebecca Kay Smith (argued), Missoula, Montana, for

Plaintiff-Appellant/Cross-Appellee.

Steven Robert Milch (argued), Billings, Montana, for

Defendants-Appellees/Cross-Appellants.

OPINION

TUNHEIM, Chief District Judge:

On May 23, 2012, officers from the Gallatin County

Sheriff’s Office (the “Sheriff’s Office”) were involved in an

interagency governmental operation to herd buffalo into

Yellowstone National Park. Plaintiff-Appellant Anthony

Patrick Reed was attempting to observe the herding operation

as the buffalo were ushered across U.S. Route 191 (“Highway

191”). While Reed was parked at an observation point,

Defendant-Appellee Deputy Doug Lieurance issued a

misdemeanor citation to Reed for obstructing the herding

operation and threatened him with jail time if he did not

move. Reed brought this action under 42 U.S.C. § 1983,

arguing that Deputy Lieurance’s actions violated Reed’s First

and Fourth Amendment rights and related Montana

constitutional rights and that Gallatin County Sheriff Brian

Gootkin, the Sheriff’s Office, and Gallatin County have a

policy or practice of providing constitutionally inadequate

training to Gallatin County police officers.

The district court dismissed some of Reed’s claims at

summary judgment and granted judgment as a matter of law

for Defendants on the remaining claims after Reed presented

REED V. LIEURANCE 5

evidence at trial. Reed now appeals these decisions as well

as the district court’s exclusion of Reed’s expert witness and

denial of his motion to amend the complaint. Defendants

cross-appeal the district court’s denial of their motion for

attorney fees. We reverse the dismissal of Reed’s claims and

the exclusion of his expert and dismiss for lack of jurisdiction

Appellees’ cross-appeal from the district court’s attorney fee

order.

I. Factual and Procedural Background1

Reed is a volunteer with the Buffalo Field Campaign

(the “Campaign”), a 501(c)(3) non-profit conservation

organization that sends volunteers to observe and document

the herding (also called “hazing”) of buffalo in and near

Yellowstone National Park. Pursuant to an interagency

agreement, government personnel from a number of state and

federal agencies carry out hazing operations as many as four

or five times per week between December and July. The

Campaign provides video footage and information about the

hazing to news outlets and government agencies.

The hazing is accomplished using a variety of

methods—horseback riders, cars, all-terrain vehicles,

snowmobiles, and sometimes helicopters. On May 11, 2012,

less than two weeks before the events giving rise to this

lawsuit, information collected by Campaign volunteers was

submitted as evidence in a federal environmental lawsuit

challenging the use of helicopters in buffalo hazing. On May

14, 2012, the district court granted a temporary restraining

1

Because the evidence presented at summary judgment and at trial

are similar in all material respects, we draw on both deposition and trial

testimony in this factual summary.

6 REED V. LIEURANCE

order in that case prohibiting the use of helicopters during

hazing in the area.

On May 23, 2012, Reed and another Campaign volunteer,

Kasi Craddock-Crocker, were in a vehicle attempting to

observe the herding of buffalo east into Yellowstone National

Park across Highway 191, which runs north and south on the

west side of the Park. Agent Rob Tierney of the Montana

Department of Livestock was in charge of the haze that day,

and two Deputies from the Sheriff’s Office—Deputy

Lieurance and Deputy Mark Hernandez—provided law

enforcement assistance.

As relevant to this appeal, the planned route for the haze

was to travel with the buffalo east on Madison Arm

Road—which runs roughly perpendicular to Highway

191—to the intersection with Highway 191; to herd the

buffalo east over Highway 191; and then to continue eastward

after crossing Highway 191, where the east-west road

changes names to Conservation Lane. Roughly 0.3 miles

north of the Highway 191-Conservation Lane intersection, the

Madison River runs east to west. Both the east-west roads

(Madison Arm Road and Conservation Lane) and the

Madison River are in a relatively low-lying area. Another

0.3 miles north of the Madison River, the elevation noticeably

increases. The divide between the southern low-lying area

and the elevated area to the north is the east-west-running

Madison Rim; at the point where Highway 191 intersects

with Madison Rim, there is a 150-foot drop to the valley

below. While the herders hoped to force the buffalo to cross

Highway 191 south of the Madison River, Defendants

produced evidence showing that the buffalo’s actual path can

be difficult to predict, and in hazes past, the buffalo had

occasionally crossed the highway north of the river.

REED V. LIEURANCE 7

In order to prevent collisions between cars and buffalo,

Agent Tierney’s team temporarily blockaded a stretch of

Highway 191. Agent Tierney set up the blockade of the

northbound lane several hundred feet south of Conservation

Lane, while Deputy Lieurance blockaded southbound traffic

0.9 miles north of Conservation Lane, at the intersection of

Highway 191 and Ecology Lane. Ecology Lane crosses

Highway 191 roughly 0.3 miles north of Madison Rim.

Between Ecology Lane and Madison Rim, there is a

significant turn in the highway. The blockade of southbound

traffic was placed at a location relatively far from the planned

haze route so that it would be visible to southbound traffic,

including large trucks traveling at high speeds, in time for

drivers to stop safely before reaching the downward incline

around the bend.

Reed initially parked his vehicle just east of Highway 191

and just north of Conservation Lane in order to get a clear

view of the buffalo as they crossed the highway. Reed had

observed hazes from the same location taking the same route

in the past. While Reed was parked in that spot, Agent

Tierney approached the vehicle and advised Reed he was

parked in the planned herding route and needed to move his

vehicle. Reed’s version of events is that Agent Tierney told

Reed to head either north or south to get out of the way, while

Defendants posit that Agent Tierney specifically told Reed

three times that he needed to move either south of the

northbound traffic blockade or north of the southbound traffic

blockade.

After speaking with Agent Tierney, Reed and Craddock-

Crocker drove north. Reed’s version of events is that he

drove about 0.6 miles north, exited Highway 191, and parked

on a gravel road running parallel to the highway and

8 REED V. LIEURANCE

separated from the highway by a grass median. According to

Reed, the parking spot was up the hill, roughly 0.3 miles

north of the point where Highway 191 crosses the Madison

River. Reed testified that he parked in this location

“[b]ecause it was the farthest away place to be out of the way,

but still be able to see the crossing and get a good count on

the buffalo” and because he and Craddock-Crocker “thought

[they] would be well out of the way.” In contrast, Agent

Tierney testified that Reed parked just seventy-five yards

north of the Madison River.

After Reed drove north and parked, Agent Tierney

radioed Deputy Lieurance, who had not yet blockaded the

southbound lane, to tell him that Reed had not followed

Agent Tierney’s instructions to go north of the southbound

blockade. Deputy Lieurance then called for a temporary halt

to the haze and drove to Reed’s location. After a brief verbal

exchange, in which Deputy Lieurance asked Reed why he

parked where he parked “when [he had] been instructed to go

to a different place,” and Reed protested that he was “not

interfering with the haze” and “not breaking any law,”

Deputy Lieurance cited Reed for obstructing a peace officer

or other public servant—a misdemeanor—pursuant to Mont.

Code Ann. § 45-7-302. While issuing the citation, Deputy

Lieurance said: “You’ve been instructed by law enforcement

to do something. You didn’t do it.” The citation includes the

following hand-written description: “was told by a law

enforcement officer to be in a specific place during a

governmental operation 3 times and still did not comply.” At

the time he issued the citation, no buffalo, horses, or riders

were in Deputy Lieurance’s sight and he knew neither the

planned haze route for the day nor the specific location of the

herd at that time.

REED V. LIEURANCE 9

After Deputy Lieurance issued the citation, Reed and

Craddock-Crocker told Deputy Lieurance that it was “illegal”

to tell them they had to go to a specific place if they were not

actually obstructing anything. Deputy Lieurance told Reed

that he would be arrested if he did not move outside of the

blockaded area. Deputy Lieurance testified that he felt a

sense of urgency because while he had called the horseback

riders herding the buffalo to direct them to stop the haze, that

did not mean the buffalo had stopped moving east; thus

Deputy Lieurance needed to leave the scene and head north

to blockade southbound traffic before the buffalo reached the

highway. Reed then drove north to the highway’s

intersection with Ecology Lane, after which the highway was

eventually blockaded and the buffalo crossed safely. From

their location at the southbound blockade, Reed and

Craddock-Crocker had no view of the buffalo crossing

Highway 191. The parties disagree about exactly where the

buffalo crossed the highway; the haze appears to have

roughly followed the planned route, with Defendants positing

that some buffalo may have crossed as far north as the

Madison River. There is no evidence that any buffalo were

north of the Madison River, let alone that any buffalo

wandered up Madison Rim.

Video footage of the buffalo inside Yellowstone National

Park shows that, later on the same day, members of the public

were permitted to observe the same herding operation from

roughly fifty yards away.

On July 10, 2012, the state prosecutor moved to

voluntarily dismiss the obstruction charge against Reed after

Reed’s attorney provided a video and witness declarations

documenting the citation. The state court dismissed the

charges the following day.

10 REED V. LIEURANCE

Reed filed this lawsuit in the U.S. District Court for the

District of Montana on March 18, 2013, asserting that Deputy

Lieurance’s conduct violated Reed’s First and Fourth

Amendment rights and related Montana constitutional rights,

and that Gallatin County, the Sheriff’s Office, and Sheriff

Gootkin failed to train officers regarding Montana’s

obstruction statute and the First and Fourth Amendments.

The parties filed cross-motions for summary judgment

and motions in limine. Ruling from the bench on July 23,

2014, the district court granted Defendants’ motion for

summary judgment on Reed’s unreasonable seizure and

failure-to-train claims, denied summary judgment on the First

Amendment claims, and excluded Reed’s police practices

expert witness, Timothy Longo. On August 20, 2014, Reed

moved to amend the complaint; the district court denied the

motion on October 6, 2014.

The district court held a jury trial on Reed’s First

Amendment claims in January 2015. After Reed presented

his case, Defendants moved for judgment as a matter of law

under Fed. R. Civ. P. 50, which the district court granted as

to all remaining claims.

On January 20, 2015, Defendants filed a motion for an

award of attorney fees. The district court subsequently

denied the motion “without prejudice to renewal, if

appropriate, following final disposition of all matters on

appeal.”

Reed now appeals the district court’s summary judgment

order, the denial of his motion to amend the complaint, the

exclusion of his expert, and the grant of judgment as a matter

REED V. LIEURANCE 11

of law for Defendants. Defendants cross-appeal the district

court’s denial of their motion for attorney fees.

II. Standards of Review

We review de novo the district court’s orders granting

summary judgment and judgment as a matter of law. Edgerly

v. City & Cty. of S.F., 599 F.3d 946, 953, 960 (9th Cir. 2010).

We review for abuse of discretion the district court’s denial

of Defendants’ motion for attorney fees, Kohler v. Flava

Enters., Inc., 779 F.3d 1016, 1018 (9th Cir. 2015), denial of

Reed’s motion to amend the complaint, Ward v. Circus

Circus Casinos, Inc., 473 F.3d 994, 1000 (9th Cir. 2007),

and exclusion of Reed’s expert, Estate of Barabin v.

AstenJohnson, Inc., 740 F.3d 457, 460 (9th Cir. 2014) (en

banc).

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

deciding court must view the evidence, including all

reasonable inferences, in favor of the non-moving party.

Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015). “An

issue of material fact is genuine if there is sufficient evidence

for a reasonable jury to return a verdict for the non-moving

party.” Id. (quoting Thomas v. Ponder, 611 F.3d 1144, 1150

(9th Cir. 2010)). The standard for judgment as a matter of

law under Rule 50(a) “mirrors” the summary judgment

standard. Reeves v. Sanderson Plumbing Prods., 530 U.S.

133, 150 (2000) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250–51 (1986)). Thus, we view the trial

evidence in the light most favorable to the non-moving party,

and “[i]f conflicting inferences may be drawn from the facts

12 REED V. LIEURANCE

[presented at trial], the case must go to the jury,” LaLonde v.

County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000).

III. Discussion

A. Unreasonable Seizure

First, Reed challenges the district court’s grant of

summary judgment for Defendants on his claim of

unreasonable seizure in violation of the Fourth Amendment

and its corollary in Art. 2, § 11 of the Montana Constitution.2

“It is well established that ‘an arrest without probable

cause violates the Fourth Amendment and gives rise to a

claim for damages under [42 U.S.C.] § 1983.’” Rosenbaum

v. Washoe County, 663 F.3d 1071, 1076 (9th Cir. 2011)

(quoting Borunda v. Richmond, 885 F.2d 1384, 1391 (9th Cir.

1988)). Probable cause exists “when the facts and

circumstances within [an officer’s] knowledge are sufficient

for a reasonably prudent person to believe that the suspect has

committed a crime.” Id. “The analysis involves both facts

and law. The facts are those that were known to the officer

at the time of the arrest. The law is the criminal statute to

which those facts apply.” Id. Furthermore, if an officer

2

“The Montana Constitution contains one of the strongest state

constitutional protections of privacy in the Nation.” Friedman v. Boucher,

580 F.3d 847, 856 (9th Cir. 2009). See also Hon. James C. Nelson,

Keynote Address: The Right to Privacy, 68 Mont. L. Rev. 257, 259 (2007)

(“This [privacy] right in Montana guarantees far greater protection from

unreasonable searches and seizures than does the Fourth Amendment to

the federal Constitution.”), quoted in Friedman, 580 F.3d at 856. Because

we find there is a genuine issue of material fact as to whether Reed’s

Fourth Amendment rights were violated, we need not also analyze Reed’s

unreasonable seizure claim under the state-law standard.

REED V. LIEURANCE 13

makes an arrest without probable cause, he or she may be

entitled to qualified immunity as long as it is reasonably

arguable that there was probable cause for the arrest. Id.

The district court ruled that Deputy Lieurance had

probable cause to arrest and cite Reed for the obstruction.3

“A person commits the offense of obstructing a peace officer

or public servant if the person knowingly obstructs, impairs,

or hinders the enforcement of the criminal law, the

preservation of the peace, or the performance of a

governmental function, including service of process.” Mont.

Code Ann. § 45-7-302(1). In City of Kalispell v. Cameron,

the Montana Supreme Court reversed a conviction for

obstruction when the defendant had merely failed to follow

an officer’s instructions. 46 P.3d 46, 47 (Mont. 2002). The

Kalispell court explained that “an individual obstructing a

peace officer must engage in conduct under circumstances

that make him or her aware that it is highly probable that

such conduct will impede the performance of a peace

officer’s lawful duty.” Id. (emphasis added); see Mont. Code

Ann. § 45-2-101(35) (“A person acts knowingly with respect

to the result of conduct described by a statute defining an

offense when the person is aware that it is highly probable

that the result will be caused by the person’s conduct.”

(emphasis added)).

3

The parties do not dispute that there was a Fourth Amendment

seizure when Deputy Lieurance issued the citation for obstruction and

subsequently forced Reed to go to a different location under threat of

being taken into physical custody. We agree that there was a Fourth

Amendment seizure, see California v. Hodari D., 499 U.S. 621, 626

(1991) (“An arrest requires either physical force . . . or, where that is

absent, submission to the assertion of authority.”), and therefore the

operative question is whether Deputy Lieurance had probable cause to

believe that Reed had committed or was committing obstruction.

14 REED V. LIEURANCE

Additionally, while “an officer need not have probable

cause for every element of the offense . . . when specific

intent is a required element of the offense, the arresting

officer must have probable cause for that element in order to

reasonably believe that a crime has occurred.” Blankenhorn

v. City of Orange, 485 F.3d 463, 472 (9th Cir. 2007) (quoting

Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994)).

In Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d

1486, 1498–99 (9th Cir. 1996), we applied Gasho to a

California law regulating motorcycle helmets. The law

allowed for the issuance of a traffic citation to a rider wearing

a non-conforming helmet, but the rider needed “actual

knowledge of the helmet’s non-conformity to be guilty of

violating the helmet law.” Id. at 1499. We defined “specific

intent” for purposes of probable cause analysis as “a special

mental element which is required above and beyond any

mental state required with respect to the actus reus of the

crime.” Id. at 1499 n.7 (quoting Specific Intent, Black’s Law

Dictionary (6th ed. 1990)). Thus, the helmet law required

specific intent—knowledge of a helmet’s non-conformity—

so the citing officer needed probable cause to believe the rider

possessed this knowledge for the citation to comply with the

Fourth Amendment.

Here, we find that the district court improperly invaded

the province of the jury when, at the summary judgment

stage, it resolved factual disputes material to the question of

probable cause. Reviewing the record before the district

court at summary judgment, we find that it is possible a jury

could conclude that Deputy Lieurance had probable cause to

believe Reed’s presence at the observation point would likely

obstruct the haze and also that Reed possessed the requisite

specific intent.

REED V. LIEURANCE 15

Alternatively, a reasonable jury could conclude that

Deputy Lieurance knew that Reed presented little to no risk

of obstructing the operation while parked on the gravel road

up the hill over half a mile from the planned route of the haze,

and thus there was at best a low probability that Reed might

“impede the performance of a peace officer’s law duty.”

Kalispell, 46 P.3d at 47. There is evidence in the record

suggesting that Deputy Lieurance had experience with hazes

in the same location and he thus could have known that

buffalo rarely, if ever, climb up Madison Rim. The record

also clearly supports the need to stop traffic from driving on

the highway near the haze, but the record is less supportive of

the safety justifications for removing a parked car located off

the highway. For one thing, there is no evidence suggesting

that Defendants ever planned to blockade or routinely

blockaded the gravel road; thus, when Deputy Lieurance

issued the citation, Reed was not actually in violation of any

road blockade. Defendants also portray the buffalo as wild,

dangerous, and highly unpredictable animals, but Reed

offered evidence rebutting this characterization. There is

evidence showing that Reed had been permitted to observe

past hazes from a much closer vantage point and also that

onlookers were permitted to come within fifty yards of the

same haze later that day. All of this calls into question

whether it was reasonable for Deputy Lieurance to believe

Reed’s presence uphill and over fifty feet away from the

haze, parked on a gravel road that was not currently or

routinely blockaded, presented a safety concern. And at a

minimum, a reasonable jury could conclude that because

Deputy Lieurance did not personally know the route that the

haze would take that day, he did not possess information

sufficient to believe there was a high probability that Reed’s

observation from the parking spot would disrupt the haze.

16 REED V. LIEURANCE

As another possibility, even if a jury concluded Deputy

Lieurance had probable cause to believe Reed was

obstructing the haze, a jury could conclude Deputy Lieurance

lacked probable cause to believe that Reed had the necessary

specific intent to impede the haze. See Easyriders Freedom

F.I.G.H.T., 92 F.3d at 1498–99; Kalispell, 46 P.3d at 47.

First, Reed had already relocated to a significant distance

when requested to do so and told Deputy Lieurance he was

“not interfering with the haze.” Second, a reasonable jury

could find Defendants’ evidence lacks credibility and

conclude that Agent Tierney never told Deputy Lieurance that

he had instructed Reed to move either north or south of the

road blockade. We note that at the time Agent Tierney

allegedly instructed Reed to move north or south of the

blockade, it is undisputed that the southbound blockade was

not yet set up. Third, there is also evidence showing that

Deputy Lieurance was familiar with Reed based on

interactions at prior hazes. Thus, even if Deputy Lieurance

held a genuine belief that Agent Tierney directed Reed to

move north or south of the blockade, Deputy Lieurance may

have also known that Reed knew parking at the observation

point was not likely to obstruct the haze.

Moreover, a jury could find Deputy Lieurance issued the

citation for one or more reasons that do not satisfy the Fourth

Amendment. First, a jury could conclude that Deputy

Lieurance’s argument that Reed was “obstructing” the haze

was pretextual, and that his real motivation in detaining and

citing Reed was tied to the Campaign’s recent lawsuit

limiting the use of helicopters in hazing. Alternatively, there

are some facts in the record tending to show that Deputy

Lieurance, like the officer in Kalispell, issued the citation

because of Reed’s alleged refusal to follow an order, as

REED V. LIEURANCE 17

opposed to any genuine likelihood that Reed would obstruct

the haze. See 46 P.3d at 47.

“[T]he district court ‘improperly weighed evidence

favorable to [Reed] against other evidence presented . . . and

failed to draw all reasonable inferences in [Reed’s] favor.’”

Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th

Cir. 2015) (quoting Krechman v. County of Riverside,

723 F.3d 1104, 1110 (9th Cir. 2013)). Construing the facts in

Reed’s favor, we cannot conclude that as a matter of law, a

reasonably prudent officer in Deputy Lieurance’s situation

would have had probable cause to believe Reed committed

obstruction. Thus, Defendants are not entitled to summary

judgment on Reed’s unlawful seizure claim. See Act

Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993)

(holding that “where genuine disputes of a material nature

exist” regarding “the facts and circumstances within an

officer’s knowledge,” summary judgment is inappropriate).4

4

In addition, Deputy Lieurance is not entitled to qualified immunity.

“The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(citation omitted). An officer sued for unlawful arrest is entitled to

qualified immunity if “it is reasonably arguable that there was probable

cause for arrest.” Rosenbaum, 663 F.3d at 1076.

“For purposes of qualified immunity, we resolve all factual disputes

in favor of the party asserting the injury.” Ellins v. City of Sierra Madre,

710 F.3d 1049, 1064 (9th Cir. 2013). In this case, the factual disputes that

preclude a finding that, as a matter of law, Deputy Lieurance acted with

probable cause also preclude a finding that he had arguable probable

cause. See Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir. 2007)

(“[I]f the officer’s reasonableness depends on material issues of fact, then

summary judgment is inappropriate for . . . federal false arrest claims.”).

18 REED V. LIEURANCE

B. Failure to Train

Second, we consider Reed’s challenge to the dismissal of

his failure-to-train claim against Sheriff Gootkin, the

Sheriff’s Office, and Gallatin County. Although the parties

moved for summary judgment on this claim, the district court

did not apply the summary judgment standard set out in Rule

56, nor did the court consider the sufficiency of Reed’s

evidence. Instead, the district court dismissed the failure-to-

train claim for failure to satisfy the pleading standard set out

in Fed. R. Civ. P. 12(b)(6), Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Defendants never filed a Rule 12 motion before the

district court, and Defendants’ summary judgment briefing

did not invoke Rule 12. Thus, we consider the district court’s

decision a sua sponte Rule 12 dismissal for failure to state a

claim.

“Although ‘[a] trial court may dismiss a claim sua sponte

under [Rule 12(b)(6)],’ the court must give notice of its

intention to dismiss and ‘afford plaintiffs “an opportunity to

at least submit a written memorandum in opposition to such

motion.”’” Lee v. City of Los Angeles, 250 F.3d 668, 683 n.7

(quoting Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991

(9th Cir. 1987) (first quotation) and Wong v. Bell, 642 F.2d

Furthermore, the Fourth Amendment principles at issue here and the

Montana Supreme Court’s interpretation of the obstruction statute were all

clearly established at the time.

The Court also notes that even if Deputy Lieurance were entitled to

qualified immunity on Reed’s Fourth Amendment claim, Montana courts

do not afford defendants qualified immunity for claimed state

constitutional violations. Dorwart v. Caraway, 58 P.3d 128, 140 (Mont.

2002).

REED V. LIEURANCE 19

359, 362 (9th Cir. 1981) (second quotation)). Even if a court

does first provide proper notice, “we will uphold a sua sponte

dismissal without leave to amend only where the plaintiff

‘cannot possibly win relief.’” Id. (quoting Wong, 642 F.2d at

362).

Here, the district court did not first provide Reed notice

and an opportunity to respond before dismissing the failure-

to-train claim for failure to satisfy Rule 12(b)(6). Therefore,

we reverse the dismissal of this claim.5

C. Exclusion of Reed’s Expert Witness

Reed argues the district court abused its discretion in

excluding the testimony of Reed’s police practices

expert—Timothy Longo, the Police Chief for the City of

Charlottesville, Virginia. Chief Longo’s testimony relates

5

Moreover, the district court denied Reed’s subsequent motion to

amend the complaint in order to expand the failure-to-train allegations.

The district court reasoned that Reed failed to show “good cause” for

modifying the scheduling order, as required under Fed. R. Civ. P.

16(b)(4), and did not comment on Lee’s requirement that a motion to

amend in such circumstances should be granted unless the plaintiff

“cannot possibly win relief.” Lee, 250 F.3d at 683 n.7 (quoting Wong,

642 F.2d at 362). After a thorough review of the record before the district

court at the time, we find it impossible to conclude that Reed “cannot

possibly win relief” on his failure-to-train claim. Therefore, even if the

district court had given Reed proper notice, Reed would still be entitled to

amend the complaint to remedy any deficiency in the complaint’s failure-

to-train allegations.

The district court never applied the Rule 56 standard to determine

whether Defendants are entitled to summary judgment on Reed’s failure-

to-train claim. We decline to do so without first affording the district

court a chance to consider this question.

20 REED V. LIEURANCE

primarily to the failure-to-train claim, which the district court

dismissed prior to addressing the motion to exclude.

Therefore, we find it appropriate to allow the district court to

reconsider the order excluding Chief Longo’s testimony

given that it may be more relevant in the context of a revived

failure-to-train claim.

Furthermore, “[a] district court abuses its discretion if it

does not apply the correct law or if it rests its decision on a

clearly erroneous finding of material fact.” Jeff D. v. Otter,

643 F.3d 278, 283 (9th Cir. 2011) (quoting Casey v.

Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004)).

While the district court may have had a proper basis to

exclude portions of the expert report in its discretion, we find

multiple “manifestly erroneous” misstatements of law and

fact in the district court’s order. See United States v. Cazares,

788 F.3d 956, 976 (9th Cir. 2015) (“A district court’s rulings

on the admissibility of expert testimony . . . will be reversed

only if ‘manifestly erroneous.’” (quoting United States v.

Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000))).

First, the district court stated that an expert may only rely

upon evidence that is in the record or that is “of the sort that

any expert would rely on,” including, for example, the

number of feet in a mile or the average body temperature of

an adult human being. Based on the use of these examples,

it appears that the district court believed it is only permissible

for an expert to rely on facts not admitted in the record if

those facts are judicially noticeable under Fed. R. Evid. 201.

This is contrary to Fed. R. Evid. 703, which allows an expert

to “base an opinion on facts or data in the case that the expert

has been made aware of or personally observed” as long as

“experts in the particular field would reasonably rely on those

kinds of facts or data in forming an opinion on the subject.”

REED V. LIEURANCE 21

In such circumstances, the facts the expert relies on “need not

be admissible for the opinion to be admitted.” Id.

Second, the district court found Chief Longo’s report

objectionable for commenting on “the ability or perhaps

nonability of others to do their job,” because such comments

functioned “at least indirectly, if not absolutely directly, [to]

raise questions about the credibility of persons and parties to

the lawsuit.” While “[a]n expert witness is not permitted to

testify specifically to a witness’ credibility,” United States v.

Candoli, 870 F.2d 496, 506 (9th Cir. 1989), we know of no

rule barring expert testimony because it might indirectly

impeach the credibility of an opposing party’s testimony.

Indeed, the key question for Reed’s failure-to-train claim is

whether Defendants performed their job functions in line with

Fourth Amendment standards. Reed is permitted to present

expert testimony critical of Defendants’ job performance or

in conflict with Defendants’ testimony as long as the expert’s

testimony complies with Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the Federal

Rules of Evidence.

Third, the district court stated that Chief Longo’s report

“unfortunately contains what are appropriately being

characterized as disparaging comments on the conduct of

non-parties. Specifically in paragraph 165 there’s criticism

of the county prosecutor made. That is plainly over the top

in terms of the balanced view to be expressed by an expert.”

Reed correctly points out that neither in paragraph 165 nor

elsewhere in his report does Chief Longo criticize the county

22 REED V. LIEURANCE

prosecutor.6 It appears that the district court’s frustration

about this “criticism” of the county prosecutor materially

colored its view of the validity of the report as a whole.7

Clearly, the district court need not permit Chief Longo to

present legal opinions. See, e.g., Crow Tribe of Indians v.

Racicot, 87 F.3d 1039, 1045 (9th Cir. 1996) (“Expert

testimony is not proper for issues of law.”). But a police

practices expert may provide helpful testimony regarding

whether there was a failure to train without veering into

improper legal opinions. See, e.g., Johnson v. Hawe,

388 F.3d 676, 686 (9th Cir. 2004) (reversing a district court’s

grant of summary judgment for a defendant on a failure-to-

train claim where the district court held the plaintiff provided

no evidence of a policy or custom, but the plaintiff had in fact

submitted a declaration from a law enforcement expert who

opined that the defendant police department’s practices

amounted to a failure to train).

Because the district court abused its discretion in

excluding the entirety of Chief Longo’s testimony, we reverse

that decision for reconsideration under the proper legal

standard.

6

In fact, paragraph 165 states Chief Longo’s opinion that the Gallatin

County prosecutor’s office’s refusal to prosecute previous obstruction

cases supports the conclusion that the Sheriff’s department is regularly

issuing baseless obstruction citations.

7

We are also concerned by other statements in the district court’s

order that suggest that the court excluded the expert report in part because

the court “simply . . . disagree[d] with the conclusions of the expert,”

which is not a proper basis for excluding such testimony. Kennedy v.

Collagen Corp., 161 F.3d 1226, 1230 (9th Cir. 1998).

REED V. LIEURANCE 23

D. First Amendment Claims

1. Lack of Notice

Reed argues that the district court committed reversible

procedural error in granting judgment as a matter of law on

Reed’s First Amendment and related state claims without first

providing Reed notice of the grounds for the decision.8

In Waters v. Young, we held that if a motion for judgment

as a matter of law pursuant to Rule 50 does not specify the

evidentiary holes in the non-moving party’s case, the court

has a duty to inform the non-moving party of those

deficiencies and provide an opportunity to correct them.

100 F.3d 1437, 1440–42 (9th Cir. 1996). “These obligations

reflect a major purpose of the motion for judgment as a

matter of law, which is ‘to call the claimed deficiency in the

evidence to the attention of the court and to opposing counsel

at a time when the opposing party is still in a position to

correct the deficit.’” Id. at 1441 (quoting Lifshitz v. Walter

Drake & Sons, 806 F.2d 1426, 1429 (9th Cir. 1986)). The

Waters court relied on the Advisory Committee Note to Rule

50, which guides our interpretation of Rule 50, and which

states that “[i]n no event . . . should the court enter judgment

against a party who has not been apprised of the materiality

of the dispositive fact and been afforded an opportunity to

present any available evidence bearing on that fact.” Fed. R.

Civ. P. 50 advisory committee’s note to 1991 amendment.

Though the plaintiff in Waters was pro se, we explained that

8

Reed’s speech-related claims include: (1) unreasonable restriction

of First Amendment speech, press, and assembly rights; (2) unreasonable

restriction of Montana constitutional speech, press, and assembly rights;

and (3) First Amendment retaliation.

24 REED V. LIEURANCE

“[t]he extent of a party’s legal expertise is irrelevant for

purposes of [Rule 50],” and thus the Waters holding “applies

in all cases, including those in which parties are represented

by highly qualified counsel.” Waters, 100 F.3d at 1442.

Building on Waters, we held in Summers v. Delta Air Lines,

Inc., that a plaintiff was “neither apprised of the alleged

deficiencies in her proof nor given the opportunity to cure

such deficiencies” when the district court granted the

defendants’ Rule 50(a) motion “on wholly different grounds”

from those matters raised in the defendants’ motion.

508 F.3d 923, 927–28 (9th Cir. 2007).

Here, after Reed presented evidence, Defendants made a

Rule 50 motion. Reed reports that in ruling for Defendants as

a matter of law, the district court read from a detailed written

statement that apparently was prepared in advance. Not

surprisingly, the court’s pre-written reasons for granting

judgment as a matter of law did not correspond with the

arguments in Defendants’ oral motion made just minutes

earlier.9 Reed was “sandbagged by a decision on grounds not

9

Defendants provided three arguments in their Rule 50 motion:

(1) because Agent Tierney, and not Deputy Lieurance, established the

boundaries of the highway blockade, Deputy Lieurance cannot be held

personally responsible for enforcing those boundaries; (2) the evidence

was “clear” that Deputy Lieurance’s motivation for threatening to take

Reed to jail was not to chill his First Amendment rights, but rather to get

Reed to move out of the way because there was an urgent need for Deputy

Lieurance to leave the scene to begin blockading the highway; and

(3) Reed failed to produce evidence that would allow imposition of

punitive damages. The district court’s order granting judgment as a matter

of law was based on wholly distinct reasons: (1) in the court’s view, the

facts were “undisputed” in support of a finding as a matter of law that the

0.9-mile blockade of the highway was “reasonable for safety reasons” and

left open alternatives for Reed to observe the haze; (2) because the court

had previously decided there was probable cause to cite Reed for

REED V. LIEURANCE 25

properly noticed,” id. at 927; this was reversible error, id. at

927–28.

2. Improper Factfinding

Reed also argues that Defendants were not entitled to

judgment as a matter of law on the merits. We agree.

As explained above, “[j]udgment as a matter of law is

appropriate when the evidence presented at trial permits only

one reasonable conclusion.” Torres v. City of Los Angeles,

548 F.3d 1197, 1205 (9th Cir. 2008) (quoting Santos v. Gates,

287 F.3d 846, 851 (9th Cir. 2002)). “Issues of credibility

belong to the trier of fact.” LaLonde, 204 F.3d at 963 (Trott,

J., concurring in part and dissenting in part). The parties’

briefing is replete with “facts [that] are disputed, and the

disputed facts here should have been submitted to the jury.”

Id.

First we examine Reed’s claim that in citing Reed for

obstruction and subsequently forcing Reed to leave his

parking spot on the gravel road, Deputy Lieurance

unreasonably restricted the exercise of Reed’s First

Amendment rights (and corollary Montana constitutional

obstruction, Reed had no right to remain parked on the gravel road, and

therefore Reed’s request to remain there was not a constitutionally-

protected activity; (3) there was insufficient evidence to find a but-for

causal relationship between the threat of jail and a desire to chill Reed’s

exercise of First Amendment rights; and (4) though neither party raised

the question of qualified immunity, the court held that alternatively,

Deputy Lieurance was entitled to qualified immunity on both First

Amendment claims.

26 REED V. LIEURANCE

rights).10 At the time of the citation, Reed was located on a

public street, which is a quintessential public forum, Frisby

v. Schultz, 487 U.S. 474, 480 (1988), and he was engaging in

the First Amendment-protected activity of observing a

government operation, Fordyce v. City of Seattle, 55 F.3d

436, 439 (9th Cir. 1995) (recognizing a “First Amendment

right to film matters of public interest”—in that case, police

actions during a public demonstration). The government may

impose reasonable time, place, and manner restrictions on

expressive activity in a public forum. Kuba v. 1-A Agric.

Ass’n, 387 F.3d 850, 858 (9th Cir. 2004). A restriction is

“reasonable” if: (1) it is content-neutral; (2) it is narrowly

tailored to serve a significant government interest; and (3) it

“leave[s] open ample alternative channels for communication

of the information.” Id. (quoting Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989)); see also Dietrich v. John

Ascuaga’s Nugget, 548 F.3d 892, 897 (9th Cir. 2008).

Here, in ruling that Defendants were entitled to judgment

as a matter of law on this claim, the district court improperly

resolved numerous factual disputes reserved for the jury. For

example, the district court quite inexplicably applied a

“presumption” that Deputy Lieurance obeyed the law. The

district court also found it was “undisputed” that the presence

of Reed’s vehicle parked on the gravel road presented a safety

risk and interfered with the hazing operation; the district court

credited Defendants’ evidence regarding the buffalo’s

10

The district court applied only the federal constitutional framework

for unreasonable restrictions on speech, press, and assembly rights, and

the parties do not argue that there is any meaningful difference between

Reed’s rights under the federal and state constitutions. Therefore, the

Court assumes for purposes of this motion that the same analysis applies

to both claims.

REED V. LIEURANCE 27

dangerousness and unpredictability. And the district court

found it “undisputed” that Agent Tierney directed Reed not

simply to go north or south from Conservation Lane, but to

go north of the southbound blockade or south of the

northbound blockade. Puzzlingly, the court also determined

that the fact that later on the same day observers were

permitted to come within fifty yards of the haze was “of no

reasonable evidentiary value in determining the issues in this

case.” Lastly, the court found that Reed “was given the

opportunity, at least at the south end of this no-drive zone, to

. . . view the haze operation as it crossed the highway.”

Based on these findings—which can only reasonably be

understood as factual findings and credibility

determinations—the district court concluded that the

restriction on Reed’s First Amendment activities was

reasonable as a matter of law because it was justified by

safety reasons, limited in time and location, and left open a

reasonable alternative. The court did not explicitly address

the question of content-neutrality.

Upon close review of the record, we find that contrary to

the district court’s conclusions, Reed presented evidence

sufficient to create material factual disputes as to all three

relevant inquiries: content neutrality, narrow tailoring to a

significant government interest, and the existence of

alternatives. See Kuba, 387 F.3d at 858 (explaining that a

restriction on First Amendment activity is unreasonable if it

fails to satisfy any one of these three prongs).

Regarding content neutrality, as noted above, a jury could

reasonably infer that Deputy Lieurance’s safety justification

was pretextual, and in fact he sought to prevent Campaign

volunteers from observing the haze. See Ward, 491 U.S. at

28 REED V. LIEURANCE

791 (“The principal inquiry in determining content neutrality,

in speech cases generally and in time, place, or manner cases

in particular, is whether the government has adopted a

regulation of speech because of disagreement with the

message it conveys. The government’s purpose is the

controlling consideration.” (citation omitted)). As to narrow

tailoring, Reed presented evidence sufficient to show that

there was no genuine safety or operational reason to exclude

him from parking on the gravel road, and therefore, the

restriction was not narrowly tailored to a significant

government interest. And it is also not clear from the record

that after being cited for obstruction, there was any

alternative observation point open to Reed from which he was

able to view the buffalo crossing the road. We certainly

cannot conclude as a matter of law that the alternative

observation opportunities in this case were “ample.” Ward,

491 U.S. at 791. Thus, Defendants were not entitled to

judgment as a matter of law on Reed’s unreasonable

restrictions claim.

Second, Reed presented a First Amendment retaliation

claim at trial. Reed presented sufficient evidence for a jury

to conclude that Deputy Lieurance’s “desire to chill [Reed’s

protected activity] was a but-for cause of” the threat to take

Reed to jail. Ford v. City of Yakima, 706 F.3d 1188, 1193

(9th Cir. 2013); see also Hartman v. Moore, 547 U.S. 250,

256 (2006) (finding a First Amendment retaliation claim may

lie “when nonretaliatory grounds are in fact insufficient to

provoke the adverse consequences”). Reed also presented

evidence “demonstrat[ing] that [Deputy Lieurance’s threat]

would chill a person of ordinary firmness from future First

Amendment activity.” Ford, 706 F.3d at 1193. Therefore,

the district should have presented Reed’s First Amendment

retaliation claim to the jury.

REED V. LIEURANCE 29

E. Attorney Fees

“Under 28 U.S.C. § 1291, this court has jurisdiction to

hear appeals of ‘final decisions’ of the district court.”

Wakefield v. Thompson, 177 F.3d 1160, 1162 (9th Cir. 1999).

“A ruling is final for purposes of § 1291 if it (1) is a full

adjudication of the issues, and (2) clearly evidences the

judge’s intention that it be the court’s final act in the matter.”

Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842,

846 (9th Cir. 2009) (quoting Nat’l Distribution Agency v.

Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997)).

The district court clearly intended to revisit the question of

an award of attorney fees, if appropriate, following the

resolution of this appeal. Because the district court made no

“final decision” on whether Defendants are entitled to

attorney fees, Wakefield, 177 F.3d at 1160, we lack

jurisdiction to review the district court’s denial without

prejudice of Defendants’ fees motion.

Conclusion

For the reasons stated above, we reverse the district

court’s (1) dismissal at summary judgment of Reed’s Fourth

Amendment and related state claims; (2) sua sponte Rule 12

dismissal of Reed’s failure-to-train claim; (3) exclusion of

Reed’s expert; and (4) judgment as a matter of law on Reed’s

First Amendment and related state claims. We do not disturb

the district court’s denial of Defendants’ motion for attorney

fees. Costs shall be taxed against Defendants-Appellees. The

case shall be reassigned to a different district judge on

remand. See Velazquez, 793 F.3d at 1030.

DISMISSED in part, REVERSED in part, and

REMANDED.