The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC BIDWELL; et al., No. 22-55680
Plaintiffs-Appellants, D.C. No.
3:16-cv-02575-LL-MSB
and
NATIONAL ASSOCIATION FOR THE MEMORANDUM*
ADVANCEMENT OF COLORED
PEOPLE, San Diego Branch; et al.,
Plaintiffs,
v.
COUNTY OF SAN DIEGO; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Linda Lopez, District Judge, Presiding
Submitted October 19, 2023**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: PAEZ and H.A. THOMAS, Circuit Judges, and R. COLLINS,*** District
Judge.
Eric Bidwell, Michael Feinstein, and Azikiwe Franklin appeal the district
court’s grant of summary judgment to the County of San Diego, the City of El
Cajon, Sheriff William D. Gore, El Cajon Police Chief Jeff Davis, and the
individual deputies and officers named in this civil rights action brought pursuant
to 28 U.S.C. § 1983. Plaintiffs allege that actions taken by City and County
employees in responding to the public demonstrations that followed the death of
Alfred Olango, an unarmed Black man killed by El Cajon police on September 27,
2016, violated Plaintiffs’ First and Fourth Amendment rights. Bidwell and
Feinstein argue that the police lacked sufficient basis to declare an unlawful
assembly on October 2 and that their subsequent arrests for failure to disperse
lacked probable cause. Franklin argues that his October 17 arrest for trespassing
lacked probable cause. The district court ruled that the individual defendants were
entitled to qualified immunity on all claims because there was no clearly
established law that put the officers on notice that their actions were unlawful, and
that Plaintiffs failed to sufficiently allege a plausible claim for municipal liability
under Monell v. Department of Social Services of City of New York, 436 U.S. 658
***
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
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(1978).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s qualified immunity determination and grant of summary judgment,
considering all disputed facts in the light most favorable to Plaintiffs. Martinez v.
City of Clovis, 943 F.3d 1260, 1269–70 (9th Cir. 2019). We may affirm on any
ground supported by the record. CFPB v. Gordon, 819 F.3d 1179, 1187 (9th Cir.
2016). We affirm.
1. Qualified Immunity. Where a government actor invokes the defense of
qualified immunity, we must determine (1) whether the defendant violated a
constitutionally protected right, and (2) whether that particular right was clearly
established at the time of the violation. Shafer v. County of Santa Barbara, 868
F.3d 1110, 1115 (9th Cir. 2017). “These two prongs . . . need not be considered in
any particular order, and both prongs must be satisfied for a plaintiff to overcome a
qualified immunity defense.” Id.
The district court properly held that the deputies and officers were entitled to
qualified immunity on Bidwell and Feinstein’s claims that the October 2 unlawful
assembly declaration violated their rights under the First Amendment. Assuming
without deciding that the officers violated Bidwell and Feinstein’s constitutional
rights, no clearly established law placed the constitutionality of the officers’
actions beyond debate. See District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)
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(“The ‘clearly established’ standard . . . requires that the legal principle clearly
prohibit the officer’s conduct in the particular circumstances before him.”).
Bidwell and Feinstein do not identify any cases that would place any reasonable
officer on notice of what constitutes a sufficiently clear and present danger of
imminent violence to justify dispersal. None of the cases Bidwell and Feinstein
identify clearly prohibit officers from declaring an assembly unlawful where a
single, agitated individual threatened to retrieve a weapon, was subdued by other
demonstrators, and subsequently could not be located by police.
The district court also properly granted the arresting officers qualified
immunity from Bidwell, Feinstein, and Franklin’s unlawful arrest claims.
Because the standard for probable cause is well settled, the question
with respect to whether an unlawful arrest violated clearly established
law is “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.”
Sialoi v. City of San Diego, 823 F.3d 1223, 1233 (9th Cir. 2016) (quoting
Rosenbaum v. Washoe County, 663 F.3d 1071, 1076 (9th Cir. 2011)). Assuming
without deciding that arresting officers lacked probable cause to arrest Bidwell and
Feinstein for failure to disperse after the assembly was declared unlawful, it is
nonetheless reasonably arguable that there was probable cause for their arrest. The
arresting officers knew that the assembly had been declared unlawful, that Bidwell
and Feinstein had been repeatedly ordered to disperse, and that they had refused to
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do so. Similarly, assuming without deciding that Franklin’s arrest for trespassing
was unlawful, it was reasonably arguable that probable cause existed: the arresting
officers knew that Franklin had been told that he was on private property and
would be arrested for trespassing if he failed to leave. See Blankenhorn v. City of
Orange, 485 F.3d 463, 472–76 (9th Cir. 2007). Because reasonable officers could
disagree as to the legality of these arrests, the district court properly granted the
arresting officers qualified immunity.
2. Monell Liability. The district court properly granted summary judgment
to the City and County on Plaintiffs’ Monell claims. A municipality cannot be held
liable under § 1983 unless its policy, practice, or custom is a moving force behind
the constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th
Cir. 2011). A policy may consist of an expressly adopted municipal policy, a
longstanding practice or custom, or an action taken or ratified by an official with
final policymaking authority. Gordon v. County of Orange, 6 F.4th 961, 974 (9th
Cir. 2021). Because Bidwell, Feinstein, and Franklin fail to identify any municipal
policy that constitutes a moving force behind their alleged constitutional
deprivations, the district court properly granted summary judgment to the City and
County on the Monell claims.
AFFIRMED.
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