The opinion
FILED
NOT FOR PUBLICATION
JUN 14 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT MANN, Sr.; et al., No. 21-15440
Plaintiffs-Appellees, D.C. No.
2:17-cv-01201-WBS-DB
and
ZACHARY MANN; WILLIAM MANN, MEMORANDUM*
Plaintiffs,
v.
CITY OF SACRAMENTO; et al.,
Defendants,
and
JOHN C. TENNIS; RANDY R. LOZOYA,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted April 19, 2022
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Seattle, Washington
Before: GOULD and CHRISTEN, Circuit Judges, and LASNIK,** District Judge.
Defendants John Tennis and Randy Lozoya appeal from the district court’s
order denying their motion to dismiss plaintiffs Robert Mann Sr., Vern Murphy-
Mann, and Deborah Mann’s 42 U.S.C. § 1983 action alleging deprivation of their
First Amendment right to familial association with their adult brother who was
killed in a police shooting. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we reverse. Because the parties are familiar with the facts and procedural history
of this case, we do not recite them here.
We review de novo a district court’s denial of qualified immunity on a Rule
12(b)(6) motion to dismiss. Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir. 2010).
To determine whether defendants are entitled to qualified immunity, we consider
“(1) whether, ‘taken in the light most favorable to the party asserting the injury, the
facts alleged show the officer’s conduct violated a constitutional right’; and (2)
‘whether the right was clearly established.’” Keates v. Koile, 883 F.3d 1228, 1235
(9th Cir. 2018) (alterations omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
2
(2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236–42
(2009)).
Plaintiffs argue that they have sufficiently alleged a constitutional violation
pursuant to Board of Directors of Rotary International v. Rotary Club of Duarte
(“Rotary Club”), 481 U.S. 537 (1987), in which the Supreme Court articulated a
four-factor test to determine whether the “objective characteristics” of the
relationship in question were “sufficiently personal or private to warrant
constitutional protection”: (1) size of the group, (2) purpose of the group, (3) its
selectivity, and (4) “whether others are excluded from critical aspects of the
relationship,” id. at 545–46.
Neither plaintiffs nor the district court point to any authority that has applied
the Rotary Club factors and held that non-cohabitating siblings have a First
Amendment right to familial association. See Mann v. City of Sacramento (Mann
IV), 521 F. Supp. 3d 917, 919–20 (E.D. Cal. 2021). Rotary Club did not recognize
such a right. That decision involved an international fraternal organization of
almost a million members that argued a state statute requiring local chapters of the
organization to admit women members violated the First Amendment right of
intimate association. See Rotary Club, 481 U.S. at 539–40. The question
presented was whether the relationship between members of the organization was
3
sufficiently intimate to warrant protection pursuant to the First Amendment. Id. at
544–45.
We acknowledge that the juxtaposition of Mann v. City of Sacramento
(Mann II), 748 F. App’x 112 (9th Cir. 2018), and Mann v. Sacramento Police
Department (Mann III), 803 F. App’x 142 (9th Cir. 2020), cert. denied sub nom.
City of Sacramento, California v. Mann, 141 S. Ct. 622 (2020), caused confusion
regarding the viability of plaintiffs’ First Amendment claim. Mann II could be
read as endorsing the proposition that Ward v. City of San Jose, 967 F.2d 280 (9th
Cir. 1991), forecloses plaintiffs’ Fourteenth Amendment and First Amendment
claims, see Mann II, 748 F. App’x at 115, but Mann III clarified that “Ward
addressed only Fourteenth Amendment intimate-association claims brought by
adult siblings,” 803 F. App’x at 143 (emphasis added). Mann III “remand[ed] for
consideration of Plaintiffs’ First Amendment claim under the standard set forth in
Rotary Club and its progeny.” Id. at 144. On remand, the district court analyzed
Rotary Club and its progeny and determined that plaintiffs sufficiently alleged a
First Amendment violation. Mann IV, 521 F. Supp. 3d at 923–27. We disagree.
4
Neither Rotary Club nor its progeny extended the First Amendment to cover the
circumstances alleged here.1
REVERSED.
1
The district court correctly noted plaintiffs’ Fourteenth Amendment
intimate association claims are not at issue because they were foreclosed by Ward,
which limited such claims to parents and children. Mann IV, 521 F. Supp. 3d at
919–20.
5