Rosenbaum v. Washoe County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERSHEL OSCAR ROSENBAUM; C. R.; 

J. R.,

Plaintiffs-Appellants, No. 10-15637

v. D.C. No.

WASHOE COUNTY; DENNIS BALAAM,  3:08-cv-00418-ECR-

RAM

in his official capacity; MICHAEL

HALEY, in his official capacity; ORDER AND

JAMES FORBUS, in his individual OPINION

capacity,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, Senior District Judge, Presiding

Argued and Submitted

May 11, 2011—San Francisco, California

Filed November 30, 2011

Before: M. Margaret McKeown, Ronald M. Gould, and

Milan D. Smith, Jr., Circuit Judges.

Per Curiam Opinion

20535

20538 ROSENBAUM v. WASHOE COUNTY

COUNSEL

Robert R. Hager and Treva J. Hearne, Hager & Hearne, Reno,

Nevada, for the appellants.

David Creekman, Herbert Kaplan, Washoe County District

Attorney’s Office, Reno, Nevada, for the appellees.

ORDER

The petition for panel rehearing is GRANTED. The opin-

ion in the above-captioned matter filed on August 22, 2011,

and published at 654 F.3d 1001, is WITHDRAWN. The

superseding opinion shall be filed concurrently with this

order.

The parties shall have fourteen (14) days from entry of the

superseding opinion to file petitions for rehearing or petitions

for rehearing en banc in the above-captioned matter.

IT IS SO ORDERED.

ROSENBAUM v. WASHOE COUNTY 20539

OPINION

PER CURIAM:

Hershel Oscar Rosenbaum (“Rosenbaum”) and his children

appeal the district court’s order granting the defendants’

motion for summary judgment on the grounds of qualified

immunity.

Rosenbaum was arrested as he stood outside a fair selling

promotional tickets that he had received for free from a radio

station. He was wearing a t-shirt with the logo of the station;

his children, ages eight and four, were standing beside him.

He was arrested for abuse, neglect or endangerment of a child,

and obtaining money under false pretenses. Officers walked

his children across the street to the car where their mother was

waiting. On the way, they told the children that what their

father did “was wrong,” that “you know what your father did

was wrong,” and that he was going to jail for what he had

done. Rosenbaum spent eight hours in jail and was released

on bail. He had in fact not violated any statute. There is no

scalping law in Nevada; no other charge applied to his con-

duct. The charges against him were ultimately dropped.

Rosenbaum and his children brought a § 1983 suit against

Washoe County, County Sheriff Dennis Balaam, County Dep-

uty Sheriff Lieutenant James Forbus (“Forbus “), and Under-

sheriff Michael Haley, for damages resulting from the

unlawful arrest. They claimed a violation of two constitu-

tional rights: (1) the right to be free from unlawful arrest

under the Fourth and Fourteenth Amendment, and (2) the sub-

stantive and procedural due process right to family integrity

under the Fourteenth Amendment. They also brought state

claims for libel, assault, battery, negligent and intentional

infliction of emotional distress, false arrest, and false impris-

onment.

The County defendants moved for summary judgment on

the grounds of qualified immunity, and the district court

20540 ROSENBAUM v. WASHOE COUNTY

granted the motion. The district court held that while the

arresting officer, Forbus, did not have probable cause to arrest

Rosenbaum, he was entitled to qualified immunity because a

criminal statute, “collecting for benefit without authority,”

Nev. Rev. Stat. § 205.415, which was offered by the defen-

dants to justify the arrest, was ambiguous.

Significantly, the statute on which the district court relied

in finding qualified immunity was unknown to Forbus at the

time of the arrest. It has no published authority or legislative

history. While there is a factual dispute about when the

County defendants found this statute, it is clear that it was

found at some point after the arrest and even after Rosenbaum

was released. The Rosenbaums allege that it was the district

attorney who found it after this § 1983 case was brought,

almost two years after the arrest. The County defendants

claim that it was Officer Forbus who found the statute. A

Westlaw search of Nevada law found not a single reference

to this statute other than in this case.

The district court further held that while the officer’s com-

ments to the children were offensive, they did not rise to the

level of a constitutional violation.

For the reasons that follow, we reverse the district court’s

ruling on qualified immunity for the unlawful arrest and

affirm the district court’s ruling on the right to integrity of the

family.

BACKGROUND

Rosenbaum received free promotional tickets for the

Nevada State Fair from the Reno radio station KOZZ. On

August 26, 2006, Rosenbaum stood across the street from the

entrance to the fair with his children and sold the tickets for

the discounted price of $5 per ticket. He was wearing a t-shirt

with the KOZZ logo at the time.

ROSENBAUM v. WASHOE COUNTY 20541

Deputy Sheriff Forbus responded to a complaint by fair

personnel that an individual was attempting to sell free pro-

motional tickets. He spoke with KOZZ, the radio station that

distributed the free tickets and sponsored the event, and was

told that no one had been authorized to sell tickets for a profit.

He then spoke with three witnesses who had bought tickets

from Rosenbaum. He called for back up and approached

Rosenbaum. Rosenbaum first denied and then admitted to

selling the tickets. Forbus placed him under arrest.

Rosenbaum’s two children were escorted to their mother,

who was in a parked vehicle a short distance away. Forbus—

and perhaps other officers—told them that what their father

had done “was wrong,” that “you know what your father did

was wrong,” and that their father was going to jail for what

he had done.

Rosenbaum was booked on felony charges for abuse,

neglect, or endangerment of a child and for obtaining money

by false pretenses, as well as on a misdemeanor charge for

obtaining money under false pretenses. He was released on

bail the following day. The Washoe County District Attor-

ney’s Office would later charge Rosenbaum only with one

felony count of obtaining money by false pretenses and then

drop the charge.

This lawsuit was filed on August 1, 2008. The Rosen-

baums’ complaint asserts nine causes of action: (1) False

Arrest, Unlawful Detention, False Imprisonment and Mali-

cious Prosecution Pursuant to the Fourteenth Amendment and

42 U.S.C. § 1983; (2) Violation of Substantive and Procedural

Due Process Right to Familial Integrity, and of Liberty Inter-

est to Rear Children Without Unreasonable Government

Interference; (3) Libel (based on a August 26, 2006, press

release requesting information about Rosenbaum and the sale

of the tickets); (4) Libel (based on a August 31, 2006 press

release); (5) Assault; (5) Battery; (6) Intentional Infliction of

Emotional Distress; (7) Negligent Infliction of Emotional Dis-

20542 ROSENBAUM v. WASHOE COUNTY

tress; (8) False Arrest; and (9) False Imprisonment. They seek

damages in an amount in excess of $10,000 on each of these

causes of action.

The County defendants moved for summary judgment on

July 10, 2009. The district court granted summary judgment

on the grounds of qualified immunity in an unpublished deci-

sion on February 25, 2010. Rosenbaum v. Washoe County,

No. 08-418, 2010 WL 745451 (D. Nev. Feb. 25, 2010). Hav-

ing dismissed the federal claims, the district court declined to

exercise jurisdiction over the pendent state claims. Id. at *8.

The Rosenbaums appealed to this court on March 23, 2010.

STANDARD OF REVIEW

This court reviews a district court’s ruling on summary

judgment on the grounds of qualified immunity de novo.

McSherry v. City of Long Beach, 584 F.3d 1129, 1134 (9th

Cir. 2009), cert. denied, 131 S. Ct. 79 (2010). Summary judg-

ment will be granted—or affirmed—where “the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation

marks and citation omitted); Fed. R. Civ. P. 56. In making

this determination, we will consider all of the facts in the light

most favorable to Rosenbaum. See Scott v. Harris, 550 U.S.

372, 378 (2007).

DISCUSSION

The court applies a two-prong analysis to determine

whether officials are entitled to qualified immunity: (1)

whether the facts alleged show that the officer violated a con-

stitutional right; and (2) if so, whether that right was clearly

established at the time of the event. See Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2080 (2011). These two questions may be

ROSENBAUM v. WASHOE COUNTY 20543

considered in either order. Pearson v. Callahan, 555 U.S.

223, 236 (2009). The linchpin of qualified immunity is the

reasonableness of the official’s conduct. Anderson v. Creigh-

ton, 483 U.S. 635, 638-39 (1987) (“[W]hether an official pro-

tected by qualified immunity may be held personally liable

for an allegedly unlawful official action generally turns on the

objective legal reasonableness of the action, assessed in light

of the legal rules that were clearly established at the time it

was taken.” (emphasis added) (internal quotation marks and

citations omitted)).

In this case, the Rosenbaums allege that the officials vio-

lated two constitutional rights: the right to be free from

unlawful arrest and the substantive due process right to family

integrity. We will consider each in turn, addressing first

whether the right was violated, and then whether the law was

clearly established such that the official would have been on

notice that his conduct was unlawful.

I. Unlawful Arrest

[1] It is well established that “an arrest without probable

cause violates the Fourth Amendment and gives rise to a

claim for damages under § 1983.” Borunda v. Richmond, 885

F.2d 1384, 1391 (9th Cir. 1988). An officer who makes an

arrest without probable cause, however, may still be entitled

to qualified immunity if he reasonably believed there to have

been probable cause. See Ramirez v. City of Buena Park, 560

F.3d 1012, 1024 (9th Cir. 2009).

In the context of an unlawful arrest, then, the two prongs

of the qualified immunity analysis can be summarized as: (1)

whether there was probable cause for the arrest; and (2)

whether it is reasonably arguable that there was probable

cause for arrest—that is, whether reasonable officers could

disagree as to the legality of the arrest such that the arresting

officer is entitled to qualified immunity. Jenkins v. City of

New York, 478 F.3d 76, 87 (2d Cir. 2007) (noting that an offi-

20544 ROSENBAUM v. WASHOE COUNTY

cer will not be entitled to qualified immunity “if officers of

reasonable competence would have to agree that the informa-

tion possessed by the officer at the time of arrest did not add

up to probable cause”).1

A. Probable Cause

[2] An officer has probable cause to make a warrantless

arrest when the facts and circumstances within his knowledge

are sufficient for a reasonably prudent person to believe that

the suspect has committed a crime. Crowe v. County of San

Diego, 608 F.3d 406, 432 (9th Cir. 2010), cert. denied, 131

S. Ct. 905, 907 (2011). 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.

The district court cited Devenpeck for the proposition that

there will be probable cause so long as the facts known to the

officer give rise to probable cause “for any criminal offense.”

Rosenbaum, 2010 WL 745451, at *3 (emphasis added) (citing

Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004)). The dis-

trict court then considered three criminal statutes and found

no probable cause. Rosenbaum, 2010 WL 745451, at *4-5.

We agree with the district court that the facts known to For-

bus did not give rise to probable cause for any offense. When

Forbus arrested Rosenbaum, he knew the following facts:

Forbus had received a complaint by State Fair personnel that

1

To be sure, the application of the qualified immunity doctrine varies

with the nature of the right. Some constitutional rights are stated in rela-

tively specific rules. Some, like the Fourth Amendment’s prohibition

against unreasonable searches and seizures, are not. Allowance for reason-

able error is already built into the underlying constitutional standard in the

first instance—before a qualified immunity analysis. As such, as one

scholar described it, qualified immunity is cast in terms of whether there

was “reasonably unreasonable” behavior. See John C. Jeffries, What’s

Wrong with Qualified Immunity, 62 Fla. L. Rev. 851, 860 (2010).

ROSENBAUM v. WASHOE COUNTY 20545

an individual was attempting to sell free promotional tickets

to the fair. He had spoken with KOZZ, the radio station that

distributed the free tickets and sponsored the event, and was

told that no one had been authorized to sell the tickets for a

profit. Forbus saw Rosenbaum standing with his children,

wearing a t-shirt with the KOZZ logo. Forbus spoke with

three witnesses who confirmed that they had purchased tickets

for $5 each. When he approached and spoke with Rosenbaum,

Rosenbaum first denied but then admitted to having sold tick-

ets.

The County defendants acknowledged that there was no

probable cause for abuse, neglect or endangerment of a child.

They proposed that there was probable cause for two

offenses: “obtaining money by false pretenses” in violation of

Nev. Rev. Stat. § 205.380 (2005) (now codified at Nev. Stat.

§ 205.380 (2011)); and “collecting for benefit without author-

ity” in violation of § 205.415 (2005) (now codified at Nev.

Stat. § 205.415 (2011)). We address each offense in turn.

1. Obtaining money by false pretenses

[3] Section 205.380, obtaining money by false pretenses,

provides:

A person who knowingly and designedly by any

false pretense obtains from any other person . . .

money . . . with the intent to cheat or defraud the

other person, is a cheat, and, unless otherwise pre-

scribed by law, shall be punished[.]

The elements of this crime are: the intent to defraud, a false

representation, reliance on that representation, and that the

victim is defrauded. Barron v. State, 783 P.2d 444, 449 (Nev.

1989). In this case, however, there was no evidence to suggest

that Rosenbaum intended to defraud his customers or that he

was misrepresenting himself. He was openly selling promo-

tional tickets, that he had received for free, for a price of $5.

20546 ROSENBAUM v. WASHOE COUNTY

His customers received exactly what they paid for; they were

not victims of fraud. This is not a case, for example, where

someone was selling counterfeit or fake tickets. The district

court held, supported by the record, that these facts do not

give rise to probable cause for obtaining money under false

pretenses.

2. Collecting for benefit without authority

Section 205.415, “collecting for benefit without authority,”

provides:

A person who sells one or more tickets to any ball,

benefit or entertainment, or asks or receives any sub-

scription or promise thereof, for the benefit or pre-

tended benefit of any person, association or order,

without being authorized thereto by the person, asso-

ciation or order for whose benefit or pretended bene-

fit it is done, shall be punished[.]

The County defendants argue that Rosenbaum appeared to be

holding himself out as a representative of KOZZ because he

was wearing their t-shirt. He appeared, they argue, to be sell-

ing tickets for the benefit of KOZZ. And because he was

unauthorized to do so, he appeared to be violating this statute.

This interpretation assumes that the statute makes it a crime

to sell tickets for the pretended benefit of another.

[4] The district court, however, interpreted the statute dif-

ferently. The district court reasoned—and we agree—that the

purpose of the offense is to protect charities from fraud.

Rosenbaum, 2010 WL 745451, at *5. The district court noted

that there is no published authority, state or federal, that con-

strues the provision, nor is there any legislative history that

clarifies its terms. Id. As such, the district court was obliged

to predict how the Nevada Supreme Court would have inter-

preted the statute. Id. The district court emphasized the provi-

sion’s title, “Collecting for benefit without authority,” and

ROSENBAUM v. WASHOE COUNTY 20547

found that a common-sense reading suggests that the provi-

sion makes it a crime to sell tickets to a charity event (ball,

concert, or entertainment) without authorization. Id. The

phrase “for the benefit or pretended benefit of any person”

modifies “any ball, benefit or entertainment” instead of modi-

fying the word “tickets.” In other words, it is a crime to sell

tickets without authorization to an event that benefits another

rather than to sell tickets without authorization for the benefit

of another. Id. As such, the facts known to Forbus at the time

of the arrest did not give rise to probable cause for “collecting

for benefit without authority” because the fair was not a char-

ity event. Id.

[5] We agree with the district court and conclude that there

was no probable cause to arrest Rosenbaum, and his constitu-

tional right to be free from unlawful arrest was violated.

B. Reasonable Belief of Probable Cause

[6] Even if the arrest was made without a warrant and

without probable cause, however, the officer may still be

immune from suit if it was objectively reasonable for him to

believe that he had probable cause. Ramirez, 560 F.3d at

1024. The linchpin of the qualified immunity analysis is the

reasonableness of the officer’s conduct in the particular case

at hand. Anderson, 483 U.S. at 638. The law acknowledges

that an otherwise competent officer will sometimes make an

unreasonable decision or make an unreasonable mistake as to

law or fact. In those instances, the officer will appropriately

be liable under § 1983. See Liberal v. Estrada, 632 F.3d 1064,

1078 (9th Cir. 2011) (denying qualified immunity because the

officer’s mistake of fact was unreasonable).

Framing the reasonableness question somewhat differently,

the question in determining whether qualified immunity

applies is whether all officers would agree that there was no

probable cause in this instance. See Ashcroft, 131 S. Ct. at

2083 (holding that an official is not entitled to qualified

20548 ROSENBAUM v. WASHOE COUNTY

immunity where “every reasonable official” would have

understood that he was violating a clearly established right

(emphasis added) (internal quotation marks and citation omit-

ted)).2

In this case, Forbus does not allege that he made any mis-

take of fact that would have led to probable cause. Nor does

he allege that he misunderstood the law at the time of the

arrest. Rather, the district court granted qualified immunity to

Forbus on the grounds that a later-discovered statute, that

could arguably apply to the facts of this case, is ambiguous.

Rosenbaum, 2010 WL 745451, at *6.

To be sure, the law must be clearly established such that it

would “be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier v. Katz, 533

U.S. 194, 202 (2001), overruled on other grounds by Pearson,

555 U.S. 223; see also Ramirez, 560 F.3d at 1024. The pur-

pose of qualified immunity is to ensure that officers are given

fair notice of the law that they are required to uphold. Ander-

son, 483 U.S. at 640.

This is not a case where courts disagree about the contours

of a constitutional right or where officers may be confused

about what is required of them under various circumstances.

As our analysis establishes, the statute is unambiguous, and

2

The Court uses the language “all reasonable officers” or “every reason-

able officer” to explain that it must be clear that the conduct is unlawful;

qualified immunity will attach whenever reasonable officers could dis-

agree about whether the facts in the particular case give rise to probable

cause. The law does not imply, however, that police officers are the ulti-

mate arbiters of constitutional questions. The lawfulness of their conduct

does not turn on whether all, or most, officers think that the law is clearly

established. For example, if the Supreme Court has issued an opinion con-

demning racial profiling, but 90 percent of the police in a given geo-

graphic area think racial profiling is just fine, an officer would not be

entitled to qualified immunity simply because his fellow officers disagree

with a clear Supreme Court ruling.

ROSENBAUM v. WASHOE COUNTY 20549

not susceptible to the reading that the county suggests. There-

fore, no reasonable officer could believe that Rosenbaum’s

conduct violated this statute.

[7] Considering the facts in the light most favorable to

Rosenbaum, all reasonably competent officers would have

agreed that he was not committing a crime. There is no scalp-

ing law in Nevada; it is simply not a crime to sell tickets to

a fair—even when the tickets were received for free. His t-

shirt did not suggest fraud, nor were the ticket buyers duped

by the sale.

[8] The district court’s grant of summary judgment on the

grounds of qualified immunity for an unlawful arrest is

reversed.

II. Substantive Due Process Right to Family Integrity

Next, Rosenbaum and his children argue that Forbus vio-

lated their substantive due process right to family integrity

when he handcuffed Rosenbaum in front of his children,

escorted the children to their mother, asked them whether

Rosenbaum had been selling tickets and whether they knew

what he was doing was wrong, and told them that it “was

wrong” and that he was going to jail for it. The question is

whether these facts—taken in the light most favorable to the

Rosenbaums—rise to the level of a constitutional violation.

[9] The substantive due process right to family integrity or

to familial association is well established. A parent has a

“fundamental liberty interest” in companionship with his or

her child. Kelson v. City of Springfield, 767 F.2d 651, 654-55

(9th Cir. 1985). A state may not interfere with this liberty

interest, and indeed the violation of the right to family integ-

rity is subject to remedy under § 1983. Id. To amount to a vio-

lation of substantive due process, however, the harmful

conduct must “shock[ ] the conscience” or “offend the com-

munity’s sense of fair play and decency.” Rochin v. Califor-

20550 ROSENBAUM v. WASHOE COUNTY

nia, 342 U.S. 165, 172-73 (1952); see also Pittsley v. Warish,

927 F.2d 3 (1st Cir. 1991) (abrogated on other grounds). For

example, we have held that a plaintiff stated a claim under

§ 1983 for a violation of the right to family integrity where

her mentally disabled son was mistaken for another person,

falsely arrested, caused to be extradited to New York from

California, and imprisoned; the police department misin-

formed her of his whereabouts on several occasions until he

was finally released two years later. Lee v. City of Los Ange-

les, 250 F.3d 668, 685-86 (9th Cir. 2001). In Kelson, we held

that parents had stated a cause of action for a violation of their

right to companionship and society of a child where their

teenage son had committed suicide at school. Kelson, 767

F.2d at 653-55.

[10] The facts of the case before us do not come close to

rising to the level of conduct that “shocks the conscience.”

Unlike Lee or Kelson, Rosenbaum was not separated from his

children for any extended period of time; rather, the children

were walked across the street to their mother who was waiting

in their car. It is true that Forbus’s—and perhaps other

officers’—words to the children were inappropriate and even

offensive. The children’s father had not in fact done anything

“wrong” and Forbus likely exacerbated an already traumatic

experience for this four year old and eight year old. And yet

we do not hold that the inappropriate conduct amounts to a

constitutional violation.

We do not imply that verbal abuse—and even verbal abuse

to children in the midst of an arrest—would never rise to the

level of a constitutional violation. Rather, in this instance, the

officers’ conduct does not “shock the conscience.”

[11] Because we conclude that the Rosenbaums’ right to

family integrity was not violated, we need not reach the ques-

tion of whether Forbus is entitled to qualified immunity for

the violation of the right to family integrity.

ROSENBAUM v. WASHOE COUNTY 20551

CONCLUSION

For the foregoing reasons, the district court’s decision

granting summary judgment to the defendants is reversed on

the unlawful arrest claim and affirmed on the right to family

integrity claim. The case is remanded to the district court for

proceedings consistent with this opinion. Each party shall

bear its own costs.

AFFIRMED in part and REVERSED and

REMANDED in part.