The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUIDO “GUY” BINI, an individual citizen, No. 17-35501
Plaintiff-Appellant, D.C. No. 3:16-cv-05460-BHS
v.
MEMORANDUM*
CITY OF VANCOUVER, a municipal
corporation, and SANDRA ALDRIDGE, in
her individual capacity and her official
capacity as police officer for City of
Vancouver,
Defendants-Appellees.
GUIDO “GUY” BINI, an individual citizen, No. 17-35517
Plaintiff-Appellee, D.C. No. 3:16-cv-05460-BHS
v.
CITY OF VANCOUVER, a municipal
corporation, and SANDRA ALDRIDGE, in
her individual capacity and her official
capacity as police officer for City of
Vancouver,
Defendants-Appellants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted December 3, 2018
Seattle, Washington
Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.
Guido “Guy” Bini appeals from the district court’s order dismissing his
claims under 42 U.S.C. § 1983 against Officer Sandra Aldridge. Aldridge and the
City of Vancouver have filed a cross-appeal challenging the district court’s
dismissal without prejudice of Bini’s state-law claim, arguing that the claim should
have been dismissed with prejudice. We affirm.
1. Aldridge is entitled to summary judgment on Bini’s Fourth Amendment
wrongful arrest claim because the undisputed facts at the time of his first arrest
established probable cause to believe that he had committed misdemeanor
cyberstalking. See Wash. Rev. Code § 9.61.260(1). The same facts established
probable cause for his second arrest, and nothing that happened between the two
arrests caused that probable cause to dissipate.
Bini argues that the cyberstalking statute is best read to require more than
one communication to the same “third party.” Id. But even if that reading were
required, Aldridge had probable cause to believe that Bini sent more than one
email to at least one of the recipients on his list, namely, Nathan Smith. Based on
the disparaging content of the emails and the identity of the individuals to whom
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they were sent, Aldridge also had probable cause to believe that Bini sent the
emails with the intent to “harass” or “embarrass” Sheryl Smith. It does not matter
that Washington’s cyberstalking statute may be subject to constitutional challenge,
since “[t]he enactment of a law forecloses speculation by enforcement officers
concerning its constitutionality.” See Michigan v. DeFillippo, 443 U.S. 31, 38
(1979). Finally, Aldridge had probable cause to believe that the emails were sent
from Washington State, where Aldridge knew Bini lived. Wash. Rev. Code
§ 9.61.260(4).
2. Officer Aldridge is entitled to qualified immunity on Bini’s First
Amendment retaliatory arrest claim. At the time of Bini’s arrests, it was not
clearly established in this circuit that an arrest supported by probable cause, but
made in retaliation for protected speech, violated the Constitution. It is true that
we held in Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013) (per curiam)—
more than a year before Bini’s first arrest in 2014—that such a right was clearly
established in this circuit. Id. at 1196. But a month later we held that the same
right had not been clearly established. Acosta v. City of Costa Mesa, 718 F.3d 800,
808, 825 (9th Cir. 2013) (per curiam).
These two holdings have resulted in some confusion about the state of the
law in this circuit. See, e.g., Mihailovici v. Snyder, No. 3:15-cv-01675, 2017 WL
1508180, at *7 (D. Or. Apr. 25, 2017) (“One can hardly argue that the question is
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‘beyond debate’ when not even the Ninth Circuit has been able to settle on one
position.”); Blatt v. Shove, No. C11-1711, 2014 WL 4093797, at *5 (W.D. Wash.
Aug. 18, 2014). It appears self-evident that, if district courts in our circuit have
had significant difficulty identifying the rule established by our cases, our
precedent did not “place[] the . . . constitutional question beyond debate.” Ashcroft
v. al-Kidd, 563 U.S. 731, 741 (2011).
3. On cross-appeal, Aldridge and the City of Vancouver challenge the
district court’s refusal to dismiss Bini’s state-law claim, brought under
Washington’s Criminal Records Privacy Act, with prejudice. After dismissing the
federal claims raised in this action, the district court did not abuse its discretion by
declining to exercise supplemental jurisdiction over the remaining state-law claim.
See Sinaloa Lake Owners Association v. City of Simi Valley, 70 F.3d 1095, 1102
(9th Cir. 1995). That claim raises a difficult and unsettled issue of statutory
interpretation under Washington law that is best resolved in state court.
The motion of the Washington State Association of Municipal Attorneys for
leave to file an amicus brief (Docket No. 29) is GRANTED.
AFFIRMED.
FILED
Bini v. City of Vancouver, Nos. 17-35501, 17-35517
DEC 17 2018
WATFORD, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I would have refrained from deciding whether Bini’s First Amendment
retaliatory arrest claim can proceed until after the Supreme Court decides Nieves v.
Bartlett, No. 17-1174 (argued Nov. 26, 2018). There the Court is expected to
resolve whether the existence of probable cause to arrest precludes a claim alleging
that the arrest was made in retaliation for the plaintiff’s exercise of his right to free
speech. If the Court holds in Nieves that the existence of probable cause precludes
such a claim, we would of course affirm the district court’s dismissal of Bini’s
retaliatory arrest claim, since, as we hold today, Officer Aldridge did have
probable cause to arrest Bini for misdemeanor cyberstalking. But if the Supreme
Court were to come out the other way, I think we would be compelled to reverse
the district court’s ruling. Bini has proffered sufficient evidence to require a jury
to decide whether Officer Aldridge arrested him not because he committed
misdemeanor cyberstalking, but instead in retaliation for his sharp criticism of
Officer Aldridge’s handling of a separate investigation.
The majority concludes that we need not wait for the Supreme Court’s
decision in Nieves because Officer Aldridge will be entitled to qualified immunity
either way. I disagree. In 2014, when Officer Aldridge arrested Bini, the law in
our circuit was clearly established in the respect relevant here: In 2013, we
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squarely held that an officer may not arrest someone in retaliation for their
protected speech, even if the arrest was otherwise supported by probable cause.
Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013) (per curiam). The
validity of that rule is precisely what the Supreme Court will likely decide in
Nieves.
The district court held that, notwithstanding our holding in Ford, the law in
our circuit remains unsettled because of our subsequent decision in Acosta v. City
of Costa Mesa, 718 F.3d 800 (9th Cir. 2013) (per curiam). In that case we held
that our precedent had not clearly established a right to be free from retaliatory
arrest when an arrest is otherwise supported by probable cause. Id. at 825. But in
Acosta we were determining the state of the law as it stood in 2006, when Acosta
was arrested. Id. at 808. The decision has nothing to say about the state of the law
in 2014, when Bini was arrested. By then, as noted, our decision in Ford had
resolved whatever uncertainty remained in our circuit’s case law. Thus, at the time
she acted, Officer Aldridge had clear notice that she would be violating Bini’s First
Amendment rights if she arrested him in retaliation for his protected speech, even
if there was probable cause to believe he had committed misdemeanor
cyberstalking.
Since the outcome in Nieves will in my view determine whether Bini’s
retaliatory arrest claim can go forward, we should have held this case until Nieves
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is decided.