Eddie Ford v. City of Yakima

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDDIE L. FORD , No. 11-35319

Plaintiff-Appellant,

D.C. No.

v. 2:09-CV-03108-

LRS

CITY OF YAKIMA ; N. WENTZ,

Lieutenant; R. URLACHER, Officer,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Lonny R. Suko, District Judge, Presiding

Argued and Submitted

April 11, 2012—Seattle, Washington

Filed February 8, 2013

Before: Proctor Hug, Jr., Dorothy W. Nelson, and

Consuelo M. Callahan, Circuit Judges.

Per Curiam Opinion;

Dissent by Judge Callahan

2 FORD V . CITY OF YAKIMA

SUMMARY*

Civil Rights

The panel reversed the district court’s summary judgment

in favor of the City of Yakima and two of its police officers

in a 42 U.S.C. § 1983 action in which plaintiff alleged that

the officers retaliated against him for exercising his First

Amendment right to freedom of speech.

The panel held that plaintiff alleged facts, that officers

booked and jailed him in retaliation for his protected speech,

which established a violation of his clearly established First

Amendment right to be free from police action motivated by

retaliatory animus, even if probable cause existed for the

officers initially to arrest plaintiff for violating the City noise

ordinance. The panel concluded that at the time of plaintiff’s

arrest, a reasonable police officer would have understood that

he could not exercise his discretion to book an individual in

retaliation for that individual’s First Amendment activity. The

panel therefore determined that officers were not entitled to

qualified immunity, and plaintiff’s claims should proceed to

trial.

Dissenting, Judge Callahan stated that the majority’s

opinion failed to follow Supreme Court guidance in

determining first that the police officers’ decision to book

plaintiff instead of issuing a ticket violated his constitutional

rights, and second that plaintiff’s “right” was clearly

established.

*

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

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

FORD V . CITY OF YAKIMA 3

COUNSEL

William D. Pickett (argued), Law Office of William D.

Pickett, Yakima, Washington, for Plaintiff-Appellant.

Thomas P. Miller (argued), Robert L. Christie, Christie Law

Group, PLLC, Seattle, Washington, for Defendants-

Appellees.

OPINION

PER CURIAM:

Eddie Ford (“Ford”) appeals from the grant of summary

judgment in favor of the City of Yakima and two of its police

officers, Ryan Urlacher and Nolan Wentz (“Appellees”), in

his 42 U.S.C. § 1983 action alleging First Amendment

retaliation.

Ford has alleged facts that would establish a violation of

his clearly established First Amendment right to be free from

police action motivated by retaliatory animus, even if

probable cause existed for that action. See Skoog v. County

of Clackamas, 469 F.3d 1221, 1235 (9th Cir. 2006). Because

the officers are not entitled to qualified immunity, we reverse

and remand for trial.

I. Background

Shortly after midnight on July 17, 2007, Ford was

listening to music while driving to work when he noticed a

police car approaching rapidly from behind him. Ford

changed lanes twice “to get out of [the police car’s] way.”

4 FORD V . CITY OF YAKIMA

The patrol car followed him each time. While stopped at a

red light, Ford stepped out of his car abruptly and asked

Urlacher, the officer driving the police car, why he was being

followed so closely. Urlacher felt “concerned for [his]

safety,” and told Ford to get back into the car and “go.”

Then, as both parties drove through the intersection, Urlacher

turned on his flashing lights and initiated a traffic stop.

Ford turned into a nearby parking area and emerged from

his car yelling. Urlacher, armed with a taser gun, approached

Ford and asked for his license and registration. Urlacher

perceived the situation as “very dangerous.” As Ford

retrieved the requested items, he stated that he thought the

traffic stop was racially motivated. Urlacher warned Ford to

stay in the car or risk being taken to jail. Ford obeyed.

Urlacher then returned to his patrol car and checked

Ford’s driver’s license for warrants. While doing so, he told

another officer, “I think I’m going to arrest him for [a] city

noise ordinance violation right now. He might only get a

ticket if he cooperates. But with that attitude, he’s going to

get cuffed.” The officer then returned to Ford’s car and, with

the assistance of a backup officer, handcuffed Ford.

An exchange then ensued in which Urlacher stated: 1)

“Stop running the mouth and listen”; 2) “If you talk over me,

you are going to go to jail, sir. Do not talk over me”; 3) “If

you cooperate, I may let you go with a ticket today. If you

run your mouth, I will book you in jail for it. Yes, I will, and

I will tow your car”; 4) “If you cooperate and shut your

mouth, I’ll give you a ticket and you can go.”

Ford responded with disbelief to the prospect of being

taken to jail for a noise violation, but after repeated threats

FORD V . CITY OF YAKIMA 5

that he would be jailed if he kept talking, Ford stopped

yelling and answered the officer’s questions with responses

such as “Uh-huh” and “You do what you want.” When Ford

expressed concern about getting to work, Urlacher replied:

Well that’s not going to happen if you

don’t—if you keep running your mouth.

Okay? If you have diarrhea of the mouth, you

will go to jail. If you cooperate with us and

treat us like human beings, we will treat you

like a human being. Do you understand me?

Ford said nothing further.

Once Ford was in the back of Urlacher’s patrol car and

out of earshot, Urlacher told a backup officer, “I don’t know

if I’m going to book him yet. I’ll see if he’s going to shut

up.” At that point, Lieutenant Wentz arrived on the scene.

Urlacher recounted the incident to Wentz and explained, “So

he’s under arrest for the city ordinance right now. If he shuts

up, I’ll let him go with a ticket.” Wentz stated that Ford had

a “hot head” and was “getting worse over time.” Wentz

advised, “I would not just write [Ford] a ticket and let him go

. . . I’d sign his ass up.” Urlacher agreed and took Ford to

jail.

When driving to the booking facility, Ford asked why he

was being taken to jail. Urlacher told him that it was because

he was playing his music too loud and because he “acted a

fool.” Urlacher elaborated:

If you would have acted like a human being

towards me, I would have treated you like a

human being. I probably would have, you

6 FORD V . CITY OF YAKIMA

know — but you talked yourself into this on

video. It’s all well recorded.

Ford invoked his right to free speech. Urlacher replied:

I have the freedom to take you to jail, too.

And that’s what’s going to happen. . . . You

exercise [your freedom of speech] all you

want, okay? If you just cooperate and treat

the police like humans, we’ll treat you like

that. But when you act like that, like an

animal, you’ve got to get treated that way, you

know.

You’re going to jail for numerous reasons.

The crime you’re going to jail for is the city

noise ordinance. A lot of times we tend to

cite and release people for that or we give

warnings. However . . . you acted a fool . . .

and we have discretion whether we can book

or release you. You talked yourself—your

mouth and your attitude talked you into jail.

Yes, it did.

Urlacher later testified that he booked Ford (1) because he

violated the city noise ordinance, which gives him discretion

to book a person “if I feel like it,” and (2) because he “failed

to listen[,] . . . failed to act civil, . . . failed to take

responsibility for his actions, [and because of] his rageful

[and disrespectful] behavior towards the law enforcement,”

which put public safety at risk.

FORD V . CITY OF YAKIMA 7

Ford was prosecuted for violating the City of Yakima’s

noise ordinance. Yakima Municipal Code 6.04.180. The

municipal court acquitted Ford of the charged offense.

Ford filed an action for civil damages against Appellees

pursuant to 42 U.S.C. § 1983. Ford alleged, inter alia, that

the police officers retaliated against him for exercising his

First Amendment right to freedom of speech. Appellees

moved for summary judgment on all claims. Ford moved for

partial summary judgment against the officers, alleging that

qualified immunity did not shield them from liability.

The district court granted summary judgment to

Appellees and denied Ford’s motion for partial summary

judgment. In so doing, the court found that the officers did

not retaliate against Ford in violation of the First Amendment

because they had probable cause to arrest Ford for violating

the city noise ordinance. In addition, “the totality of the

circumstances, including the manner in which [Ford]

confronted Officer Urlacher and delivered his criticism, and

not merely the criticism itself, led Officer Urlacher to

reasonably conclude booking was warranted.” The district

court determined that “no rational jury could conclude

Plaintiff’s exercise of his right of free speech was the ‘but for

cause’ of his booking.” Because the court ruled as a matter

of law that there was no constitutional violation, it did not

reach the issue of qualified immunity.

Ford appeals the district court’s grant of summary

judgment in favor of the officers on his First Amendment

claim.

8 FORD V . CITY OF YAKIMA

II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo a district court’s ruling on cross-motions for

summary judgment, including rulings based on qualified

immunity. CRM Collateral II, Inc. v. TriCounty Metro.

Transp. Dist., 669 F.3d 963, 968 (9th Cir. 2012). “We view

the evidence in the light most favorable to the nonmoving

party and determine whether there are any genuine issues of

material fact and whether the district court correctly applied

the relevant substantive law.” Id. at 968 (internal quotation

marks and citation omitted). The parties’ assertions that there

are no disputed issues “does not vitiate the court’s

responsibility to determine whether disputed issues of

material fact are present. A summary judgment cannot be

granted if a genuine issue as to any material fact exists.” Fair

Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th

Cir. 2001) (quoting United States v. Fred A. Arnold, Inc.,

573 F.2d 605, 606 (9th Cir.1978)).

III. Discussion

Qualified immunity protects officers from liability for

civil damages where their alleged unconstitutional conduct

does not violate a clearly established right. Hope v. Pelzer,

536 U.S. 730, 739 (2002). “Qualified immunity balances two

important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson

v. Callahan, 555 U.S. 223, 231 (2009).

An officer is entitled to qualified immunity unless (1)

facts viewed in the light most favorable to the injured party

FORD V . CITY OF YAKIMA 9

show that the officer violated a constitutional right and (2) the

right was clearly established at the time of the alleged

misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001),

modified by Pearson, 555 U.S. at 233.

A. Constitutional Violation

The first issue is whether the facts viewed in the light

most favorable to Ford show a violation of his rights. “[T]he

First Amendment protects a significant amount of verbal

criticism and challenge directed at police officers.” City of

Houston v. Hill, 482 U.S. 451, 461 (1987). While an

individual’s critical comments may be “provocative and

challenging,” they are “nevertheless protected against

censorship or punishment, unless shown likely to produce a

clear and present danger of a serious substantive evil that

rises far above public inconvenience, annoyance, or unrest.”

Id. (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4

(1949)). In fact, “[t]he freedom of individuals verbally to

oppose or challenge police action without thereby risking

arrest is one of the principal characteristics by which we

distinguish a free nation from a police state.” Id. at 462–63.

In this Circuit, an individual has a right “to be free from

police action motivated by retaliatory animus but for which

there was probable cause.” Skoog, 469 F.3d at 1235. That

right was violated when the officers booked and jailed Ford

in retaliation for his protected speech, even though probable

cause existed for his initial arrest. Ford’s criticism of the

police for what he perceived to be an unlawful and racially

motivated traffic stop falls “squarely within the protective

umbrella of the First Amendment and any action to punish or

deter such speech . . . is categorically prohibited by the

10 FORD V . CITY OF YAKIMA

Constitution.” Duran v. City of Douglas, 904 F.2d 1372,

1378 (9th Cir. 1990).1

In order to establish a claim of retaliation in violation of

the First Amendment, Ford’s evidence must demonstrate that

the officers’ conduct would chill a person of ordinary

firmness from future First Amendment activity. See Skoog,

469 F.3d at 1231–32. In addition, the evidence must enable

Ford ultimately to prove that the officers’ desire to chill his

speech was a but-for cause of their allegedly unlawful

conduct. See Lacey v. Maricopa County, 693 F.3d 896,

916–17 (9th Cir. 2012) (en banc).

1

The dissent premises its view in part on the argument that individuals

detained by the police enjoy less First Amendment protection than

nondetainees. Dissent at 19–20 (citing cases that discuss the diminished

constitutional rights of prison inmates and jailed arrestees). Even if we

believed that the law supported such a view, which we empathically do

not, the facts here make it doubtful that Ford’s ostensibly attenuated rights

would be relevant to the officers’ liability. Although the dissent does not

describe with specificity which constitutional rights are abrogated and

which are retained when the police detain someone on a public street, it

offers some hints. For instance, the dissent suggests that the detainee’s

rights might need to give way to “the officer’s need to determine [the

detainee’s] dangerousness and proclivity to commit further breaches of the

peace.” Dissent at 21. But nothing that Ford said following his detention

gave any indication that he posed a danger to himself, the officers or

property, or that he was likely to further disturb the peace. The dissent

additionally proposes that the First Amendment’s scope is narrowed, in

the context of a detention, by the fact that officers are “required to

consider some statements by a detained person such as those relating to

medical condition, health, fear of assault from others, and threats.”

Dissent at 33. The record makes plain, however, that nothing Ford said

related to any of these things. And to the extent that there are any

disputed issues of fact regarding the content of Ford’s statements, or the

relationship between those statements and the officers’ alleged retaliatory

animus, their resolution is for the trier of fact.

FORD V . CITY OF YAKIMA 11

1. Chilled Speech

Ford has set forth sufficient evidence to demonstrate that

the officer’s “acts would chill or silence a person of ordinary

firmness from future First Amendment activities.”

Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283,

1300 (9th Cir. 1999) (citation omitted). He has alleged that

he was booked and jailed in retaliation for his speech. This

Court has recognized that a retaliatory police action such as

an arrest or search and seizure would chill a person of

ordinary firmness from engaging in future First Amendment

activity. See Lacey, 693 F.3d at 917 (retaliatory arrest);

Skoog, 469 F.3d at 1232 (retaliatory search and seizure); see

also White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000)

(holding that informal measures such as an investigation can

chill First Amendment activities). Likewise, a person of

ordinary firmness would be chilled from future exercise of his

First Amendment rights if he were booked and taken to jail in

retaliation for his speech. Therefore, a rational jury could

find that the officers deterred or chilled the future exercise of

Ford’s First Amendment rights.

2. Causation

To satisfy the second requirement, the evidence must be

sufficient to establish that the officers’ desire to chill Ford’s

speech was a but-for cause of their conduct. In other words,

would Ford have been booked and jailed, rather than cited

and arrested, but for the officers’ desire to punish Ford for his

speech?

Under Washington law, a police officer who has probable

cause may arrest an individual without a warrant if that

individual commits a misdemeanor in the presence of that

12 FORD V . CITY OF YAKIMA

officer. RCW 10.31.100. When a person is arrested for a

traffic violation, the arresting officer may not detain him for

a period of time longer than is necessary to issue and serve a

citation and a notice to appear in court. RCW 46.64.015.

Upon arresting an individual for a misdemeanor, a police

officer has discretion under Washington Criminal Rules for

Courts of Limited Jurisdiction (“CrRLJ”) to hold an

individual in custody based on a limited number of factors,

including “whether detention appears reasonably necessary to

prevent imminent bodily harm to [the individual] or another,

or injury to property, or breach of the peace.” CrRLJ

2.1(b)(2)(ii).

Ford does not contend that police officers lacked probable

cause to arrest him for violating the city noise ordinance. But

Officer Urlacher’s probable cause to arrest Ford does not

necessarily mean that booking and jailing him was

constitutional.2 The only permissible non-retaliatory bases on

which Officer Urlacher may have booked Ford are contained

in CrRLJ 2.1(b)(2), and the officers have argued and

presented evidence that their decision to book and jail Ford

was based on that provision.

2

Probable cause is not irrelevant to an individual’s claim that he was

booked and jailed in retaliation for his speech. Probable cause for the

initial arrest can be evidence of a police officer’s lack of retaliatory

animus for subsequently booking and jailing an individual. See Dietrich

v. John Ascuaga’s Nugget, 548 F.3d 892, 901 (9th Cir. 2008) (holding that

the issue of probable cause is not dispositive of ordinary retaliation claims,

though it still has “high probative force”) (alteration and quotation marks

omitted). However, that determination should be left to the trier of fact

once a plaintiff has produced evidence that the officer’s conduct was

motivated by retaliatory animus.

FORD V . CITY OF YAKIMA 13

While the issue of causation ultimately should be

determined by a trier of fact, Ford has provided sufficient

evidence for a jury to find that the officers’ retaliatory motive

was a but-for cause of their action, thus satisfying the

causation element of a First Amendment retaliation claim for

the purposes of qualified immunity.3 Cf. Duran, 904 F.2d at

1378 (finding summary judgment inappropriate where the

officer admitted to stopping the plaintiff because the plaintiff

made obscene gestures and yelled profanities but claimed he

had no retaliatory motive because he honestly believed

criminal activity might be afoot); Mendocino Envt’l Ctr.,

192 F.3d at 1303 (“The possibility that other inferences could

be drawn [regarding officers’ motivations] that would provide

an alternate explanation for the appellants’ actions does not

entitle them to summary judgment.”). Taken in the light most

favorable to Ford, the facts establish that the officers’ alleged

conduct violated his right to be free from police action

motivated by retaliatory animus, even if probable cause

existed for that action.

3

In considering causation, the dissent asks whether “the officer’s

statements to Ford truly intended to punish Ford for his comments” or, if,

instead, they were “efforts to elicit a changed perspective on Ford’s part

that would allow the officers to release Ford.” Dissent at 25. The dissent

offers the possibility that “[s]everal of the officer’s comments . . . can be

interpreted as indicating that the officer sought to give Ford an opportunity

to change his attitude,” making causation “problematic.” Dissent at

25–26. We are not persuaded by this nuanced view of the officer’s

statements. Police officers are authority figures. Accordingly, there is

little practical difference between officers “punishing” Ford for his speech

and providing Ford an “opportunity” to conform his views to those of the

police in order to avoid arrest. And even if that were a meaningful

distinction, the question whether the officers retaliated against Ford or

simply permitted him to retreat voluntarily from his lèse-majesté is

ultimately a factual one that would have to be resolved at trial.

14 FORD V . CITY OF YAKIMA

B. Clearly Established Right

The officers are nevertheless entitled to qualified

immunity if Ford’s right was not clearly established when the

officers booked and jailed him.

Whether a right is clearly established for the purposes of

qualified immunity “depends substantially upon the level of

generality at which the relevant ‘legal rule’ is to be

identified.” Anderson v. Creighton, 483 U.S. 635, 639

(1987). The right must not be stated as a broad general

proposition, but rather must be defined with enough

specificity to put a reasonable officer on notice that his

conduct is unlawful. Reichle v. Howards, 132 S. Ct. 2088,

2093–94 (2012); cf. Hope, 536 U.S. at 741 (holding that

“general statements of the law are not inherently incapable of

giving fair and clear warning” to officers even where their

specific conduct has not previously been held unlawful)

(quoting United States v. Lanier, 520 U.S. 259, 271 (1997)).

A right can be clearly established despite a lack of factually

analogous preexisting case law, and officers can be on notice

that their conduct is unlawful even in novel factual

circumstances. See Karl v. City of Mountlake Terrace,

678 F.3d 1062, 1073 (9th Cir. 2012). The relevant inquiry is

whether, at the time of the officers’ action, the state of the

law gave the officers fair warning that their conduct was

unconstitutional. Hope, 536 U.S. at 741. We must assess the

legal rule “in light of the specific context of the case, not as

a broad general proposition.” Saucier, 533 U.S. at 201.

At the time the officers acted in 2007, the law in this

Circuit gave fair notice that it would be unlawful to jail Ford

in retaliation for his First Amendment activity. Police

officers have been on notice at least since 1990 that it is

FORD V . CITY OF YAKIMA 15

unlawful to use their authority to retaliate against individuals

for their protected speech. See Duran, 904 F.2d at 1375–78

(holding that a police officer’s traffic stop and subsequent

arrest of an individual who directed obscene gestures and

words toward that officer was unlawful because it was well-

established that police officers may not exercise their

authority for personal motives, especially in response to an

individual’s criticism or insults); see also Beck v. City of

Upland, 527 F.3d 853, 871 (9th Cir. 2008) (holding that

Duran clearly established that police officers could not use

their power to retaliate against an individual for his free

speech). Moreover, this Court’s 2006 decision in Skoog

established that an individual has a right to be free from

retaliatory police action, even if probable cause existed for

that action. 469 F.3d at 1235. In that case, Skoog claimed

that a police officer seized his property to retaliate against his

filing a lawsuit against another officer. Id. at 1227. We held

that although the officer’s search and seizure was supported

by probable cause, it was unlawful because the officer’s

primary motivation was to retaliate against Skoog’s exercise

of his First Amendment rights. Id. at 1235.

Thus, Duran clearly established that police officers may

not use their authority to punish an individual for exercising

his First Amendment rights, while Skoog clearly established

that a police action motivated by retaliatory animus was

unlawful, even if probable cause existed for that action. The

officers’ conduct in this case falls squarely within the

prohibitions of Duran and Skoog. While the precise issue of

retaliatory booking and jailing has not been addressed in this

Circuit, “closely analogous preexisting case law is not

required to show that a right was clearly established.”

Robinson v. York, 566 F.3d 817, 826 (9th Cir. 2009) (citation

omitted). Duran addressed a retaliatory arrest and Skoog

16 FORD V . CITY OF YAKIMA

applied to a retaliatory search and seizure, but the

unlawfulness of a retaliatory booking and jailing was

nevertheless apparent from those cases. After Duran, any

reasonable police officer would have known that it was

unlawful to use his authority to retaliate against an individual

because of his speech. Likewise, any reasonable police

officer would have understood that Skoog’s prohibition on

retaliatory police action extended to typical police actions

such as booking and jailing. Therefore, this case involved the

kind of “mere application of settled law to a new factual

permutation” in which we assume an officer had notice that

his conduct was unlawful. See Eng v. Cooley, 552 F.3d 1062,

1076 (9th Cir. 2009) (quoting Porter v. Bowen, 496 F.3d

1009, 1026 (9th Cir. 2007)).

A reasonable officer would have understood that he did

not automatically possess the authority to book and jail an

individual upon conducting a lawful arrest supported by

probable cause. Washington law clearly enumerates the

limited factors that would allow a police officer to book and

jail an individual who has been arrested for a misdemeanor.

CrRLJ 2.1(b)(2). A reasonable officer would have been

aware of the law governing his ability to book and jail an

individual he lawfully has arrested. Moreover, a reasonable

officer would have been aware that Washington law explicitly

states that its rules “shall not be construed to affect or

derogate from the constitutional rights of any defendant.”

CrRLJ 1.1. Thus, a reasonable police officer would have

understood that he could not exercise his discretion to book

an individual in retaliation for that individual’s First

Amendment activity. Finally, Officer Urlacher’s statements

indicate that he was, in fact, aware of his discretion to book

an individual he has arrested: “I have the freedom to take you

to jail . . . we have discretion whether we can book or release

FORD V . CITY OF YAKIMA 17

you.” He surely was aware that his discretion was subject to

constitutional limits. Because the law concerning the right in

question was clearly established at the time of Ford’s arrest,

the officers are not entitled to qualified immunity.

IV. Conclusion

Ford has put forth facts sufficient to allege a violation of

his clearly established First Amendment right to be free from

police action motivated by retaliatory animus, even if

probable cause existed for that action. Thus, the officers are

not entitled to qualified immunity, and Ford’s claims should

proceed to trial.

REVERSED and REMANDED.

CALLAHAN, Circuit Judge, dissenting:

I dissent because the majority’s opinion fails to follow

Supreme Court guidance in determining first that the police

officers’ decision to book Ford instead of issuing a ticket

violated his constitutional rights, and second that Ford’s

“right” was clearly established. On the first point, the

majority fails to appreciate that the scope of a person’s right

to speech is different after he or she has been detained. This

leads to the majority’s failure to discern that our prior cases

on retaliatory police action, even if not cabined by subsequent

Supreme Court decisions, do not create a clearly established

right forbidding an officer from considering the comments of

a legally detained individual when determining whether to

book the individual.

18 FORD V . CITY OF YAKIMA

I. Introduction

This case raises an issue of first impression. It is not a

case of retaliatory arrest. Nonetheless, our review is

informed by cases suggesting that, in order to state a claim

for retaliatory arrest, a plaintiff must show a lack of probable

cause for the arrest. See Reichle v. Howards, — U.S. —, —,

132 S. Ct. 2088, 2095 (2012) (noting that evidence of

probable cause “could be thought similarly fatal to a

plaintiff’s claim that animus caused his arrest, given that

retaliatory arrest cases also present a tenuous causal

connection between the defendant’s alleged animus and the

plaintiff’s injury”). But see Skoog v. Cnty. of Clackamas,

469 F.3d 1221, 1232 (9th Cir. 2006) (noting “that a plaintiff

need not plead the absence of probable cause in order to state

a claim for retaliation”). The police had probable cause to

arrest Ford for violating the city noise ordinance and he does

not argue otherwise. See Majority at 12. Also, although Ford

was prosecuted in the Yakima Municipal Court for violating

the city noise ordinance and found not guilty of the charges,

he does not assert a claim of retaliatory prosecution. See

Hartman v. Moore, 547 U.S. 250, 266–67 (2006) (holding

that a plaintiff must show a lack of probable cause to state a

claim for retaliatory prosecution). Instead, Ford seeks

monetary damages in an action under 42 U.S.C. § 1983 based

on the assertion that the police officers violated his

constitutional rights when, after detaining him for violating

the city noise ordinance, they decided to book him based, in

part, on his post-detention statements, rather than just issuing

a ticket.

Ford’s asserted claim of a violation of his constitutional

rights, and the majority’s treatment of it, raises several major

concerns. Initially and critically, the majority assumes,

FORD V . CITY OF YAKIMA 19

incorrectly, that Ford’s arrest did not affect the scope of his

First Amendment right to free speech. Consequently, the

majority fails to appreciate that a plaintiff asserting that he

was booked instead of ticketed in retaliation for his post-

detention statements must show a lack of probable cause for

his booking. Here, this prerequisite for relief bars Ford from

prevailing for two reasons. First, he has not claimed that the

officers lacked probable cause to book him. Second, the

district court’s unchallenged determination that Ford’s

exercise of his right of free speech was not the but-for cause

of his booking establishes that there was probable cause to

book Ford.

II. Ford Has Not Shown A Violation of His First

Amendment Rights

A. Lawful Detention Curtails An Individual’s Rights

Under the First Amendment

I agree with the majority that the “First Amendment

protects a significant amount of verbal criticism and

challenge directed at police officers,” City of Houston v. Hill,

482 U.S. 451, 461 (1987), and that police officers “must

respect the right of individuals in [the] community to question

their government and the role of the police,” Mackinney v.

Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995). However, here

we are concerned not with speech that might give rise to an

arrest, but with speech made after a person has been lawfully

detained. This is a critical distinction. It is well settled that

once an individual is lawfully detained, his or her rights may

be restricted for legitimate penological and custodial reasons.

See Bell v. Wolfish, 441 U.S. 520, 546 (1979) (stating that

“[a] detainee simply does not possess the full range of

20 FORD V . CITY OF YAKIMA

freedoms of an unincarcerated individual”);1 see also Bull v.

City & Cnty. of San Francisco, 595 F.3d 964, (9th Cir. 2010)

(en banc) (upholding strip searchers of arrestees). Obviously,

a detained person is not free to leave. Similarly, a detained

person’s speech may be relevant to the restraints placed on

him and his conditions of confinement. In other words, what

a person says after he or she is lawfully detained may be, and

perhaps must be, considered by police officers. Other than to

state that it disagrees, the majority does not address this

reality.

The scope of a detained person’s First Amendment rights

is particularly germane in the context of the defendant

officers deciding whether to book or ticket Ford. Washington

law provides that an officer making this decision should

consider “whether detention appears reasonably necessary to

prevent imminent bodily harm to himself, herself, or another,

or injury to property, or breach of the peace.” Wash. CrRLJ

2.1(b)(ii). This consideration appears to be constitutional and

is eminently reasonable. We would not want a peace officer

to release an individual when the officer has reason to believe

that the individual will harm “himself, herself, or another, or

[injure] property, or breach [] the peace.” Moreover, among

the most relevant evidence for such a determination will be

1

The Supreme Court explained that although “prison inmates retain

certain constitutional rights . . . [l]awful incarceration brings about the

necessary withdrawal or limitation of many privileges and rights, a

retraction justified by the considerations underlying our penal system.”

Bell, 441 U.S. at 545–46 (internal quotation marks and citations omitted).

The Court also commented that it had held “that even when an

institutional restriction infringes a specific constitutional guarantee, such

as the First Amendment, the practice must be evaluated in the light of the

central objective of prison administration, safeguarding institutional

security.” Id. at 547.

FORD V . CITY OF YAKIMA 21

the individual’s statements. Indeed, here the officer

explained that his decision to detain Ford was based on

Ford’s “mouth and [his] attitude.” In explaining his decision

to detain Ford, the officer cited concerns for public safety as

well as Ford’s failure to listen, failure to act civilly, failure to

take responsibility for his actions, and disrespectful behavior

toward law enforcement. Thus, both as a matter of common

sense and state law, the defendant officers were allowed to

consider Ford’s post-detention statements in deciding whether

to ticket or book him.

B. Ford’s Claim of Retaliation Based on His Post-

Detention Statements Requires a Showing of the

Absence of Probable Cause for the Booking

The interplay between the officer’s need to determine a

detained person’s dangerousness and proclivity to commit

further breaches of peace, and the person’s right to speech

under the First Amendment, distinguishes this case from the

cases the majority cites and directs how we should review

Ford’s allegations. Skoog alleged that the defendants

searched his office and seized materials in retaliation for

Skoog having filed a lawsuit. Skoog, 469 F.3d at 1227. In

Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990), the

plaintiffs alleged that defendants had unlawfully arrested

them based on one of them making obscene gestures at the

police from their car. Id. at 1374–75. In Lacey v. Maricopa

County, 693 F.3d 896 (9th Cir. 2012) (en banc), the plaintiff

alleged that defendants violated his First Amendment rights

by investigating and arresting him in retaliation for articles he

published. Id. at 916. In each case, the actions taken against

the plaintiffs were allegedly taken against them based on their

exercising their rights as private citizens. Thus, the statement

in Skoog, 469 F.3d at 1235, that an individual has a right “to

22 FORD V . CITY OF YAKIMA

be free from police action motivated by retaliatory animus but

for which there was probable cause” did not purport to cover

a situation where a defendant’s constitutional rights are

already circumscribed by his lawful detention. Indeed, in

Duran the court noted that there are “well-defined limits on

what police officers may do in discharging their duties,” and

that “[p]erhaps the most fundamental of these is the

requirement that the police not interfere with the freedom of

private persons unless it be for specific, legitimate reasons.”

904 F.3d at 1376. Here, Ford’s charges against the officers

concern not interference “with the freedom of private

persons,” but rather the officers’ reactions to Ford’s

comments after he was legally detained.

1. Ford must show a lack of probable cause for

his booking

Accordingly, Ford’s case is analogous to the situation

presented in Reichle, where the Supreme Court noted that

“the right in question is not the general rule to be free from

retaliation for one’s speech, but the more specific right to be

free from a retaliatory arrest that is otherwise supported by

probable cause.” 132 S. Ct. at 2094. The Court held that it

“has never held that there is such a right.” Id. Similarly,

Ford has no right not to be booked based on his post-

detention statements where the booking is supported by

probable cause.

In Reichle, the Court noted that evidence of probable

cause “could be thought similarly fatal to a plaintiff’s claim

that animus caused his arrest, given that retaliatory arrest

cases also present a tenuous causal connection between

defendant’s alleged animus and the plaintiff’s injury.” Id. at

2095. The Court commented:

FORD V . CITY OF YAKIMA 23

An officer might bear animus toward the

content of a suspect’s speech. But the officer

may decide to arrest the suspect because his

speech provides evidence of a crime or

suggests a potential threat . . . . Like

retaliatory prosecution cases, then, the

connection between alleged animus and injury

may be weakened in the arrest context by a

police officer’s wholly legitimate

consideration of speech.

Id. at 2095–96 (internal citation omitted). The Supreme

Court expressed a preference for requiring the showing of the

absence of probable cause and approvingly cited decisions by

other circuit courts requiring a showing of a lack of probable

cause.2 Id. at 2096.

2

The Supreme Court noted that for qualified immunity purposes, “it was

at least arguable” that Hartman’s rule requiring a lack of probable cause

extended to retaliatory arrests. Id. at 2096. It then commented:

Decisions from other Federal Courts of Appeals in the

wake of Hartman support this assessment. Shortly

before Howards’ arrest, the Sixth Circuit held that

Hartman required a plaintiff alleging a retaliatory arrest

to show that the defendant officer lacked probable

cause. See Barnes v. Wright, 449 F.3d 709, 720 (2006)

(reasoning that the Hartman “rule sweeps broadly”).

That court’s treatment of Hartman confirms that the

inapplicability of Hartman to arrests would not have

been clear to a reasonable officer when Howards was

arrested. Moreover, since Howards’ arrest, additional

Courts of Appeals have concluded that Hartman’s

no-probable-cause requirement extends to retaliatory

arrests. See, e.g., McCabe v. Parker, 608 F.3d 1068,

1075 (C.A.8 2010); Phillips v. Irvin, 222 Fed. Appx.

928, 929 (C.A.11 2007) (per curiam). As we have

24 FORD V . CITY OF YAKIMA

Recognition of the officers’ “wholly legitimate

consideration of speech” by a lawfully detained individual,

such as Ford, changes fundamentally the nature of a court’s

inquiry. Asking whether an officer’s “acts would chill or

silence a person of ordinary firmness from future First

Amendment activities,” Majority at 11 (quoting Mendocino

Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.

1999)), assumes that a detained individual has a constitutional

right to say whatever he wants while he is detained, without

any adverse consequences. As shown, this is not true. Thus,

the majority’s application of Mendocino to this case ignores

the crucial distinction between what an individual may be

arrested for and the necessary consequences of statements by

an individual after he has been detained.

Rather than focus on whether an officer’s action had a

chilling effect on the plaintiff, the proper inquiry under cases

such as Reichle is whether the officer had probable cause to

book the detained individual in light of his statements. In

other words, did Ford’s post-detention statements give the

officers reason to believe that Ford might harm himself or

others, injure property, or breach the peace?

In making this inquiry, we should keep in mind our

statement in Duran that:

previously observed, “[i]f judges thus disagree on a

constitutional question, it is unfair to subject police to

money damages for picking the losing side of the

controversy.” Wilson v. Layne, 526 U.S. 603, 618

(1999).

Reichle, 132 S. Ct. at 2096 (parallel citations omitted).

FORD V . CITY OF YAKIMA 25

A police officer’s duties are both difficult and

dangerous. Circumstances on the beat often

require immediate action in order to prevent

serious harm to persons or property; rarely is

there time for brushing up on the Supreme

Court’s latest pronouncements on warrant

requirements, probable cause or reasonable

suspicion. Thus, police officers “generally are

shielded 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.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). This is an objective

standard, Anderson v. Creighton, 483 U.S.

635, 641 (1987), that leaves “ample room for

mistaken judgments.” Malley v. Briggs,

475 U.S. 335, 343 (1986).

904 F.2d at 1376 (parallel citations omitted).

Critically, as Reichle suggests, focusing on whether the

officer had legitimate reasons under Washington law for

booking Ford casts a different light on causation. Were the

officer’s statements to Ford truly intended to punish Ford for

his comments, or were they efforts to elicit a changed

perspective on Ford’s part that would allow the officer to

release Ford? Several of the officer’s comments that the

majority cites can be interpreted as indicating that the officer

sought to give Ford an opportunity to change his attitude.3 If

3

For example, the majority notes that the officer stated: “He might only

get a ticket if he cooperates. But with that attitude, he’s going to get

cuffed”; “I don’t know if I’m going to book him yet. I’ll see if he’s going

26 FORD V . CITY OF YAKIMA

the officer’s motive was not to chill Ford’s First Amendment

rights, causation becomes problematic.4 In Hartman, the

Supreme Court noted:

It is clear, moreover, that the causation is

understood to be but-for causation, without

which the adverse action would not have been

taken; we say that upon a prima facie showing

of retaliatory harm, the burden shifts to the

defendant official to demonstrate that even

without the impetus to retaliate he would have

taken the action complained of (such as firing

the employee). See Mt. Healthy [City Sch.

Dist. Bd. of Educ. v. Doyle], 429 U.S. [274,]

287 [(1977)]. If there is a finding that

retaliation was not the but-for cause of the

discharge, the claim fails for lack of causal

connection between unconstitutional motive

and resulting harm, despite proof of some

retaliatory animus in the official’s mind. See

ibid. It may be dishonorable to act with an

unconstitutional motive and perhaps in some

to shut up”; and “If he shuts up, I’ll let him go with a ticket.” Majority

at 5.

4

The majority takes issue with what it describes as this “nuanced view

of the officer’s statement.” Majority at 13 n.3. It posits that there is little

practical difference between an officer “punishing” Ford and providing

him an “opportunity” to avoid detention. I disagree. Because the officer

was required to consider Ford’s post-detention statements in determining

whether to book him, the officer should not be found liable in a § 1983

action unless there is a lack of probable cause for the detention and clearly

established constitutional limitations on his consideration of Ford’s

statements.

FORD V . CITY OF YAKIMA 27

instances be unlawful, but action colored by

some degree of bad motive does not amount

to a constitutional tort if that action would

have been taken anyway. See Crawford-El [v.

Britton, 523 U.S. 574,] 593 [(1998)]; Mt.

Healthy, supra, at 285–286.

547 U.S. at 260 (parallel citations omitted).

The need to establish causation, when coupled with the

recognition that an officer’s duties are “difficult and

dangerous” and “often require immediate action,” Duran,

904 F.2d at 1376, support requiring that a plaintiff plead and

prove an absence of probable cause when claiming a

retaliatory booking based on statements made after he was

lawfully detained. Otherwise, officers may face lawsuits and

liability for retaliation even when they have probable cause

to book the detainee. If the officer has probable cause to

book a detained individual based, in part, on the person’s

post-detention actions or statements, there is no causation;

and thus, there is no cause of action for violation of a

constitutional right. See Hartman, 547 U.S. at 260.

The reasons underlying the Supreme Court’s opinion in

Reichle also require a showing of a lack of probable cause in

a § 1983 action based on the plaintiff’s post-detention speech.

Ford’s claim of retaliation presents a “tenuous causal

connection between the defendant’s alleged animus and the

plaintiff’s injury” similar to that presented in retaliatory

prosecution and arrest cases. First and foremost, Reichle

concerned alleged retaliation based on the acts of a free

private person, while Ford objects to the officers’ reaction to

his statements made while he was legally detained. In

Reichle, the Supreme Court noted that “evidence of the

28 FORD V . CITY OF YAKIMA

presence or absence of probable cause for the arrest will be

available in virtually every retaliatory arrest case.” Id. at

2095. However, this is not true where the allegation is that an

officer violated a person’s constitutional right by exercising

the option of booking the individual rather than issuing a

ticket. Unlike determinations of whether there is probable

cause for an arrest or to prosecute, there usually is no reason

to marshal the evidence supporting the officer’s decision to

detain rather than to ticket an individual until and unless the

individual files a § 1983 action. Even where, as here, there

is a video of the arrest and detention, this does not encompass

all the information the officers received and considered in

making their decision. Moreover, unlike probable cause for

an arrest or for prosecution, for which there is considerable

case law, there is little judicial guidance on how to evaluate

an officer’s decision to book a lawfully detained individual.

Thus, requiring the pleading and proving of a lack of

probable cause is necessary to shield officers from being

second guessed in civil actions brought by those they lawfully

detained. See Messerschmidt v. Millender, — U.S. —, —,

132 S. Ct. 1235, 1244–45 (2012) (stating that 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,” should provide

“government officials breathing room to make reasonable but

mistaken judgments,” and should protect “all but the plainly

incompetent or those who knowingly violate the law”).

FORD V . CITY OF YAKIMA 29

2. Because the District Court found there was

probable cause for booking Ford, it properly

granted judgment for defendants.

Even if Ford were not required to show a lack of probable

cause for his booking, the district court’s finding of probable

cause – which the majority does not really address – supports,

nay compels, the district court’s grant of summary judgment

for the officers. The district court on cross-motions for

summary judgment determined that the totality of the

circumstances led the officer “to reasonably conclude

booking was warranted.” The court concluded that the

booking “was not retaliatory” and that “no rational jury could

conclude [Ford’s] exercise of his right of free speech was the

‘but-for cause’ of his booking.”

Although the court in Skoog stated that “a plaintiff need

not plead the absence of probable cause in order to state a

claim for retaliation,” 469 F.3d at 1232, it also stated that

“Skoog must ultimately prove that Royster’s desire to cause

the chilling effect was a but-for cause of the defendant’s

action.” Id. Thus, even if the statement in Skoog that a

plaintiff need not plead the absence of probable cause

survives the Supreme Court’s statement in Reichle that it “has

never recognized a First Amendment right to be free from a

retaliatory arrest that is supported by probable cause,” 132

S. Ct. at 2093, here, the district court’s finding that the

officers’ “desire to cause the chilling effect” was not a “but-

for cause” of Ford’s booking terminates the case, even under

Skoog.

Once the case was submitted to the district court on cross-

motions for summary judgment, the facts were no longer

“[t]aken in the light most favorable to Ford.” Majority at 13.

30 FORD V . CITY OF YAKIMA

Rather, the district court’s finding of no “but-for cause”

should be affirmed unless Ford can show that the findings are

clearly erroneous. See United States v. U.S. Gypsum Co.,

333 U.S. 364, 395 (1948); see also United States v. Hinkson,

585 F.3d 1247, 1260–61 (9th Cir. 2009) (en banc).5

III. The Right Perceived By The Majority Is Not

Clearly Established

Even if I were to agree with the majority that Ford had a

constitutional right not to have the officers consider his

comments while he was detained, which I do not, I could not

agree that this right was “clearly established.” That is to say,

the officers were not on notice that deciding to book Ford

based, in part, on his comments while detained, violated his

rights under the First Amendment.

The Supreme Court has not been chary of reminding us

that a clearly established right cannot be established at a high

5

In Hinkson, we reiterated the Supreme Court’s statement that “a

finding is ‘clearly erroneous’ when, although there is evidence to support

it, the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.” 583 F.3d at 1260

(quoting U.S. Gypsum, 333 U.S. at 395). W e further commented that:

the scope of our review limits us to determining

whether the trial court reached a decision that falls

within any of the permissible choices the court could

have made. In other words, the Supreme Court’s

precedent convinces us that any “definite and firm

conviction” of the reviewing court must still include

some measure of deference to the trial court’s factual

determinations.

Id. at 1261.

FORD V . CITY OF YAKIMA 31

level of generality. In Ashcroft v. al-Kidd, 131 S. Ct. 2074

(2011), the Supreme Court specifically stated “We have

repeatedly told courts – and the Ninth Circuit in particular –

not to define clearly established law at a high level of

generality.” Id. at 2084 (internal citation omitted); see also

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)

(concluding that the Ninth Circuit erred in defining the right

at issue at “a high level of generality”).

This is precisely what the majority does here. It takes

Skoog, which concerns a retaliatory arrest based on a free

private person’s action, and applies it to an action alleging an

unconstitutional booking based, in part, on the plaintiff’s

statements while legally detained. This stretched application

of Skoog is inconsistent with the Supreme Court’s caution

that “[t]he 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.” al-Kidd, 131 S. Ct. at 2084.

Furthermore, Skoog, which is not a Supreme Court opinion

and was decided only eight months before Ford’s detention,

is itself equivocal as to what it “established.” The court

concluded that the right it found was not clearly established

at the time of the search, and further commented that “[a]t

some future point, this right will become clearly established

in this Circuit.” 469 F.3d at 1235. Thus, the extent to which

Skoog itself clearly established a cause of action for alleged

police retaliation despite the presence of probable cause for

the officer’s action is doubtful. The clarity of this rule is

further muddied by the spirit, if not the holding, of the

Supreme Court’s subsequent opinion in Reichle, 132 S. Ct.

2088.

32 FORD V . CITY OF YAKIMA

The test for determining that a right is clearly established

requires much more. The Supreme Court has explained:

[C]learly established for purposes of qualified

immunity means that [t]he contours of the

right must be sufficiently clear that a

reasonable official would understand that

what he is doing violates that right. This is not

to say that an official action is protected by

qualified immunity unless the very action in

question has previously been held unlawful,

but it is to say that in the light of pre-existing

law the unlawfulness must be apparent.

Wilson v. Layne, 326 U.S. 603, 614–15 (1999) (internal

quotation marks and citation omitted). Here, while the

officer’s subjective intent is not controlling, it is clear that

Officer Urlacher reasonably did not think that he was

violating any of Ford’s constitutional rights.6 More

importantly, there is no “pre-existing law” to inform the

officers that Ford, once detained, could not talk himself into

jail.

The majority states that police officers have been on

notice since 1990 that it is unlawful to use their authority to

retaliate against individuals for their protected speech.

Majority at 14–15. But all of the cases on which the majority

relies concerned actions to arrest or to search based on

6

This conclusion is implicit in the officer’s statement to Ford that “but

you talked yourself into this on video. It’s all well recorded.” See

Majority at 6.

FORD V . CITY OF YAKIMA 33

individuals actions as free private persons.7 Had the officers

initially detained Ford based on his speech, the majority’s

broad axiom might apply. But that is not what Ford alleges.

He alleges only that the officers decided to book him instead

of giving him a ticket based on what he said after he was

legally detained. Moreover, as the majority recognizes, under

Washington law, the officers were required to consider Ford’s

post-detention statements in determining whether to ticket or

book him. The officers were aware of this requirement of

Washington law and cited it as one of the reasons leading

them to book Ford. See Majority at 12. The majority has not

cited, nor am I aware of any, case law that addresses an

officer’s consideration of a detained individual’s statements

when determining whether to book the individual. Indeed, it

seems self-evident that an officer is required to consider some

statements by a detained person such as those relating to

medical condition, health, fear of assault from others, and

threats, in determining how to process the individual.8

7

As previously noted, in Duran, 904 F.2d 1372, the plaintiffs were

arrested after one of them made obscene gestures at the police from their

car. Id. at 1374–75. In Beck v. City of Upland, 527 F.3d 853 (9th Cir.

2008), the plaintiff alleged that he was arrested because of his protected

speech challenging his treatment by the city. Id. at 856–57. Neither of

these cases, nor Skoog, 469 F.3d 1221, appear on its face to have any

application to an officer’s determination that a detained individual should

be booked, rather than ticketed, in part because of his statements while

detained.

8

The majority recognizes that the officer was required to consider

Ford’s comments, but asserts, apparently as a factual matter, that Ford said

nothing that would allow the officer to book him. See Majority at 10 n.1,

16–17. The officer, of course, thought otherwise. Thus, over five years

after the event, the officer now faces liability because two appellate judges

disagree with his assessment of the situation. This further illustrates the

importance of requiring a showing of no probable cause. If, as the district

34 FORD V . CITY OF YAKIMA

Because an officer’s use of a detained person’s statements

raise substantially different considerations from an officer’s

reactions to the statements of a free person, the cases cited by

the majority did not reasonably put the officers on notice that

in telling Ford that he had talked himself into jail, they were

chilling Ford’s constitutionally protected right to free speech.

If we are going to impose such etiquette upon peace officers,

we must first clearly so hold, and not expect them to glean

such a “vague” constitutional rule from Ninth Circuit cases

that appear to be out of step, if not inconsistent, with recent

Supreme Court decisions.9

IV. Conclusion

In sum, we have wandered far from our limited role as an

appellate court. First, we should have affirmed the district

court because Ford has not shown that the court’s

determination that chilling his speech was not the “but for

cause” of his booking. Second, we should have recognized

that there is no “pre-existing law” that fairly informed the

officers that they could not consider the statements Ford

made while he was legally detained in deciding to book him,

court found, there was probable cause to book Ford, that should be the end

of the matter.

9

If nothing else, perhaps the majority’s opinion and this dissent

illustrate the wisdom of the Supreme Court’s decision in Pearson v.

Callahan, 555 U.S. 223 (2009), of allowing courts to address the second

prong of the Saucier test when the constitutional question under the first

prong is more difficult. Moreover, I fear that in failing to heed the

Supreme Court’s advice to “think carefully before expending scarce

judicial resources to resolve difficult and novel questions of constitutional

or statutory interpretation that will have no effect on the outcome of the

case,” al-Kidd, 131 S. Ct. at 2080 (internal quotation marks and citations

omitted), we have demonstrated its wisdom.

FORD V . CITY OF YAKIMA 35

and affirmed the district court pursuant to the second prong

of the Saucier test. Finally, I disagree with the majority’s

assertion that Ford may assert a claim for retaliatory booking

based on the statements he made while legally detained

without showing an absence of probable cause for his

booking. As in this case, police officers are often called upon

to make decisions concerning the protection of themselves

and the public on the street and in the middle of the night.

We should not espouse a standard that may subject an officer

to personal liability because years after the event a court

decides that the officer may have had an improper motive –

as well as probable cause – for the action he took.

Accordingly, I dissent.