Randon Miller v. City of Scottsdale

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDON L. MILLER, No. 22-16004

Plaintiff-Appellant, D.C. No.

v. 2:21-cv-00834-

GMS-MTM

CITY OF SCOTTSDALE, a

municipal entity; CHRISTIAN

BAILEY, in his official and individual OPINION

capacities,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted September 12, 2023

Phoenix, Arizona

Filed December 8, 2023

Before: Ronald M. Gould, Andrew D. Hurwitz, and

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Gould;

Concurrence by Judge Hurwitz;

Dissent by Judge Bumatay

2 MILLER V. CITY OF SCOTTSDALE

SUMMARY *

COVID-19 Executive Order Enforcement

The panel affirmed the district court’s summary

judgment in favor of Scottsdale Police Officer Christian

Bailey and the City of Scottsdale in a 42 U.S.C. § 1983

action alleging constitutional violations arising from

plaintiff’s arrest and citation for violating a COVID-19

emergency executive order, which prohibited restaurants

from offering on-site dining.

Arizona Governor Ducey issued four COVID-19

executive orders between March 19, 2020, and June 29,

2020, that among other things prohibited on-site dining (EO-

2020-09), included restaurants on a list of essential functions

that could remain open during the pandemic (EO 2020-12),

and required that notice and an opportunity to comply be

given prior to any enforcement action (EO 2020-

18). Plaintiff is the owner of Sushi Brokers, LLC, which

operates a sushi restaurant in Scottsdale, Arizona. On April

11, 2020, officers cited and arrested plaintiff for violating

Arizona Revised Statute (“A.R.S.”) § 26-317, which makes

it a misdemeanor to violate emergency executive

orders. The charges were later dismissed. Plaintiff brought

suit alleging, among other things, retaliatory arrest, in

violation of the First Amendment, and false arrest, in

violation of the Fourth Amendment.

*

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

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

MILLER V. CITY OF SCOTTSDALE 3

The panel first noted that both retaliatory and false arrest

claims require showing the absence of probable cause. Here,

given that officers had observed on-site dining at the

restaurant and there were prior calls reporting violations,

Officer Bailey had probable cause to arrest plaintiff under

A.R.S. § 26-317 for violating an emergency order.

The panel next rejected plaintiff’s argument that that the

warnings he received on March 27 and 28, 2020, did not

qualify under EO 2020-18’s notice requirement because they

occurred prior to EO 2020-18’s enactment. Holding that

there was no constitutional violation, the panel noted that

plaintiff was arrested for the exact same behavior for which

he had received previous warnings. He had sufficient notice

and opportunity to comply given the challenges presented by

the COVID-19 pandemic.

Concurring, Judge Hurwitz agreed that a reasonable

officer with the knowledge that Officer Bailey possessed

would believe that plaintiff had violated EO 2020-09 and

therefore there was probable cause for the arrest. It did not

matter that plaintiff owned the restaurant through a limited

liability corporation if he was serving in-person

diners. Moreover, even accepting plaintiff’s argument that

EO 2020-18 superseded all previous orders and required

prior notice before any A.R.S. § 26-317 arrest or citation, the

result would not change. EO 2020-18 did not invalidate the

two prior warnings plaintiff received prior to his arrest that

he was violating the ban on in-person dining.

Dissenting, Judge Bumatay would remand to the district

court to determine in the first instance what law governed at

the time of plaintiff’s arrest. If EO 2020-09 and EO 2020-

12 governed, then plaintiff did not violate the law because

those orders applied only to “restaurants” or “businesses”—

4 MILLER V. CITY OF SCOTTSDALE

not persons. Nevertheless, Officer Bailey’s legal mistake

about whether those orders applied to individuals was

reasonable. If EO 2020-18 was the governing law, then it

didn’t apply to plaintiff because he wasn’t afforded the

required notice. The March 27 and 28 warnings were

insufficient because they were made before EO 2020-18

went into effect. If Officer Bailey was required to rely on

2020-18, his mistake in believing plaintiff could be arrested

was not reasonable.

COUNSEL

Cameron A. Morgan (argued), Cameron Morgan Law,

Scottsdale, Arizona, for Plaintiff-Appellant.

Kathleen L. Wieneke (argued) and Laura A. Van Buren,

Wieneke Law Group, Tempe, Arizona, for Defendant-

Appellee.

MILLER V. CITY OF SCOTTSDALE 5

OPINION

GOULD, Circuit Judge:

Before us is another case arising out of the early days of

the COVID-19 pandemic. In Seaplane Adventures, LLC v.

Cnty. of Marin, we recognized the COVID-19 pandemic was

“a threat unlike any in recent times,” and that “health

officials traditionally have broad discretion, through

legislation and upon review by courts, to take actions to stem

the transmission of a contagious disease.” 71 F.4th 724, 726,

730 (9th Cir. 2023). At issue here is the enforcement of a

governor’s emergency executive order enacted under the

guidance of health officials. The district court granted

summary judgment to Scottsdale Police Officer Christian

Bailey and the City of Scottsdale in this 42 U.S.C. § 1983

action, and we affirm.

I. Background

A. Arizona’s COVID-19 Executive Orders

On March 11, 2020, Arizona Governor Douglas A.

Ducey issued a Declaration of Emergency for the COVID-

19 pandemic, citing findings by the World Health

Organization, the United States Department of Health and

Human Services, and the Arizona Department of Health

Services. The declaration authorized the “Director of the

Arizona Department of Health Services to coordinate all

matters pertaining to the public health emergency response

of the State.” Governor Ducey subsequently issued four

executive orders relevant to this action.

6 MILLER V. CITY OF SCOTTSDALE

Issued on March 19, 2020, Executive Order (“EO”)

2020-09 prohibited restaurants from offering on-site dining:

Beginning at close of business on Friday,

March 20, 2020, all restaurants in counties of

the State with confirmed cases of COVID-19

shall close access to on-site dining until

further notice. Restaurants may continue

serving the public through pick up, delivery,

and drive-thru operations.

Issued on March 23, 2020, EO 2020-12 included

restaurants on a list of “essential functions” that could

remain open during the pandemic. EO 2020-12 did not

supersede EO 2020-09’s prohibition against on-site dining:

Restaurants for consumption off-

premises: Restaurants and other facilities

that prepare and serve food, but only for

consumption off-premises, through such

means as in-house delivery, third-party

delivery, drive-through curbside pick-up and

carryout. . . . This order is consistent with and

does not supersede Executive Order 2020-09.

Issued on March 30, 2020, EO 2020-18 set forth a

physical distancing policy and enacted a notice requirement:

“Prior to any enforcement action being taken to enforce this

order in accordance with A.R.S. § 26-317, a person shall be

notified and given an opportunity to comply.”

MILLER V. CITY OF SCOTTSDALE 7

Issued on June 29, 2020, EO 2020-43 specified that

enforcement actions could be taken against business entities:

Notwithstanding any other law or executive

order, this executive order allows law

enforcement and any regulatory agency,

pursuant to their regulatory authority, to take

immediate enforcement action against any

business that fails to follow this Executive

Order or any guidance issued by the Arizona

Department of Health Services relating to

COVID-19 for the protection of the public

health, safety and welfare . . . .

On January 27, 2022, the Maricopa County Superior

Court held in an unrelated case that “[b]ecause E.O. 2020-

43 was directed only at establishments, and not the owners

or managers of establishments, [individuals] cannot be held

personally liable under A.R.S. § 26-317 for violating E.O.

2020-43.” Arizona v. Mahaffey, LC2021-000194-001, at *7

(Maricopa Cnty. Super. Ct., Jan. 27, 2022).

B. Randon Miller’s Arrest

Randon L. Miller is the owner of Sushi Brokers, LLC,

which operates a sushi restaurant in Scottsdale, Arizona.

Scottsdale police officers visited Miller on March 27 and 28,

2020 in response to complaints that Sushi Brokers was

violating EO 2020-09’s prohibition against on-site dining.

On April 10, 2020, Scottsdale police received a tip from a

caller who reported seeing at least fifteen people dining

inside Sushi Brokers. An officer went to Sushi Brokers that

evening and saw about ten people inside the establishment,

of whom four left without to-go food bags. The officer also

reported observing: (1) one man (likely Miller) walking

8 MILLER V. CITY OF SCOTTSDALE

inside with a glass of beer; (2) a woman eating inside with

chopsticks; and (3) two men drinking alcoholic beverages

outside who later went back inside.

The next day, April 11, 2020, appellee Officer Christian

Bailey and six other officers visited Sushi Brokers to serve

Miller with a citation for violating Arizona Revised Statutes

(“A.R.S.”) § 26-317, which makes it a class 1 misdemeanor

to violate emergency executive orders. Miller shouted

obscenities at Officer Bailey, who eventually managed to

serve the citation. When Officer Bailey began to leave,

Miller shouted at the officers. This led Officer Bailey to

arrest Miller for violation of a COVID-19 executive order

under A.R.S. § 26-317 and disorderly conduct under A.R.S.

§ 13-2904(A)(1). These charges were later dismissed.

C. Judicial Proceedings

Miller brought the present Section 1983 action asserting,

as relevant here, claims of (1) retaliatory arrest, in violation

of the First Amendment; (2) false arrest, in violation of the

Fourth Amendment; and (3) liability against the City of

Scottsdale under Monell v. Dep’t of Soc. Servs. of City of

New York, 436 U.S. 658 (1978). Miller v. City of Scottsdale,

No. 2:21-cv-00834-GMS-MTM, at *3 (June 10, 2022), Dkt.

65. The district court granted defendants’ motion for

summary judgment, holding that (1) Officer Bailey had

probable cause to arrest Miller for violation of an executive

order; and (2) Miller “plead[ed] no facts and provide[d] no

evidence to support his Monell claim.” Id. at *11–13; This

timely appeal followed.

II. Standard of Review

We have jurisdiction under 28 U.S.C. § 1291, and

“review de novo the grant of summary judgment.” Johnson

MILLER V. CITY OF SCOTTSDALE 9

v. Barr, 79 F.4th 996, 999 (9th Cir. 2023). “Viewing the

evidence and drawing all inferences in the light most

favorable to the non-moving party, we must determine

whether any genuine issues of material fact remain and

whether the district court correctly applied the relevant

substantive law.” Gordon v. Cnty. of Orange, 6 F.4th 961,

967 (9th Cir. 2021) (citation omitted).

III. Probable Cause

To prevail on any of his claims, Miller must demonstrate

that Officer Bailey lacked probable cause to arrest him. Both

retaliatory and false arrest claims require showing the

absence of probable cause. 1 Nieves, 139 S. Ct. at 1724 (A

“plaintiff pressing a retaliatory arrest claim must plead and

prove the absence of probable cause for the arrest.”); Atwater

v. City of Lago Vista, 532 U.S. 318, 354 (2001) (requiring

probable cause to establish a valid arrest). Similarly, without

showing an absence of probable cause, Miller cannot

establish a constitutional violation necessary to prevail on

1

Miller relies on a narrow exception in Nieves v. Bartlett to argue that

he does not have to prove the absence of probable cause for his

retaliatory arrest claim. 139 S. Ct. 1715 (2019). In Nieves, the Supreme

Court held that a plaintiff does not have to prove the absence of probable

cause in “circumstances where officers have probable cause to make

arrests, but typically exercise their discretion not to do so.” Id. at 1727.

To invoke this exception, the Court held a plaintiff must present

“objective evidence” that he was “arrested when otherwise similarly

situated individuals not engaged in the same sort of protected speech had

not been.” Id. Miller provides no objective evidence to support his claim

that individuals are rarely arrested after being released following a

citation. Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir. 2022) (stating

that, at minimum, the “objective evidence” must consist of local records

comparing the number of arrests to non-arrests for similar conduct or

citations made under a given statute).

10 MILLER V. CITY OF SCOTTSDALE

his municipal liability claim under Monell. Sinclair v. City

of Seattle, 61 F.4th 674, 680 n.3 (9th Cir. 2023). 2

In the context of a Section 1983 action, “[p]robable cause

to arrest exists when there is a ‘fair probability or substantial

chance of criminal activity’ by the arrestee based on the

totality of the circumstances known to the officers at the time

of arrest.” Vanegas v. City of Pasadena, 46 F.4th 1159, 1164

(9th Cir. 2022) (quoting Lacey v. Maricopa Cnty., 693 F.3d

896, 918 (9th Cir. 2012) (en banc)). This “is not a high bar:

It requires only the kind of fair probability on which

reasonable and prudent people, not legal technicians, act.”

Kaley v. United States, 571 U.S. 320, 338 (2014) (cleaned

up). For probable cause, officers may rely on information

gained by other officers under the “collective knowledge”

doctrine. United States v. Ramirez, 473 F.3d 1026, 1036–37

(9th Cir. 2007).

Miller’s arrest report states that he was arrested for

violating a COVID-19 executive order on April 10, 2020. It

is undisputed that, before arresting Miller on April 11, 2020,

Officer Bailey was advised that police officers had visited

the restaurant on March 27 and 28, 2020 for possible

violations of EO 2020-09’s prohibition against on-site

dining, and that additional violations were observed on April

10, 2020. Miller also does not challenge the observations of

2

Because we conclude that Officer Bailey had probable cause to arrest

Miller under A.R.S. § 26-317, we do not address whether the defendants

properly raised a qualified immunity defense in the district court or

whether Miller waived his arguments that there was no probable cause.

And because probable cause need only exist for one, rather than all, of

the offenses charged, we do not address whether there was probable

cause to arrest Miller for disorderly conduct. Blankenhorn v. City of

Orange, 485 F.3d 463, 473 (9th Cir. 2007).

MILLER V. CITY OF SCOTTSDALE 11

the officer who visited Sushi Brokers on the evening of April

10, 2020.

Even taking as true Miller’s argument that some of the

people in the restaurant on April 10 were employees and not

patrons, no reasonable jury could conclude that Officer

Bailey lacked probable cause. Miller’s argument does not

account for the prior calls reporting violations or the

officer’s observations of four individuals leaving the

restaurant without to-go bags. Hart v. Parks, 450 F.3d 1059,

1066 (9th Cir. 2006) (stating that anonymous tips

implicating defendant were “valuable”). The probable cause

inquiry turns not on whether there was a violation in fact, but

on whether a reasonable officer would conclude that there

was a fair probability of a violation. See id. at 1066–67

(noting that for probable cause, the detectives did not need

personal knowledge that the items “were actually stolen”);

Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1147 (9th Cir.

2012) (stating that once probable cause is established,

officers do not have a duty to investigate further for

exculpatory evidence). The record demonstrates that Officer

Bailey undoubtedly had probable cause to arrest Miller

under A.R.S. § 26-317. 3

IV. Executive Order 2020-18’s Notice Requirement

Miller contends that he was not given notice and an

opportunity to comply as required under EO 2020-18. Miller

states that the officer visits and warnings on March 27 and

3

Any requirement in EO 2020-43 that enforcement for violations of the

COVID-19 executive orders must be taken against businesses rather than

individuals is irrelevant because EO 2020-43 was enacted on June 29,

2020, after Miller’s arrest. Vanegas, 46 F.4th at 1164 (probable cause is

determined “based on the totality of the circumstances known to the

officers at the time of arrest”) (emphasis added).

12 MILLER V. CITY OF SCOTTSDALE

28, 2020 do not qualify because they both occurred before

EO 2020-18’s enactment on March 30, 2020. Section 1983

actions generally cannot rest on a violation of state law,

“unless the right encompassed in the state statute is

guaranteed under the United States Constitution.”4 Moore

v. Marketplace Rest., Inc., 754 F.2d 1336, 1349 (7th Cir.

1985); accord Smith v. City & Cnty. of Honolulu, 887 F.3d

944, 952 (9th Cir. 2018). But we address Miller’s contention

because we construe it as a claim under the Fourteenth

Amendment Due Process Clause. Smith, 887 F.3d at 952

(“[S]tate laws can create liberty interests that are subject to

protection under the Fourteenth Amendment.”). EO 2020-

18’s notice requirement created an interest in freedom from

citation or arrest without prior warning. See, e.g., Carlo v.

City of Chino, 105 F.3d 493, 498–99 (9th Cir. 1997) (holding

that a California statute created a liberty interest in an

arrestee’s right to make phone calls).

To determine whether Miller was afforded sufficient

procedural protections, we look at “(1) the private interest

affected; (2) the risk of an erroneous deprivation and the

probable value of any additional or substitute procedural

safeguards; and (3) the government’s interest.” Johnson v.

Ryan, 55 F.4th 1167, 1179–80 (9th Cir. 2022) (citing

4

For this reason, we reject Miller’s contentions based on Arizona state

law. It is long settled that the requirement under A.R.S. § 13-3883 that

a misdemeanor be committed in an officer’s presence is not grounded in

the Fourth Amendment. Vanegas, 46 F.4th at 1165. Although at oral

argument Miller’s counsel cited Rodriguez v. United States, 575 U.S.

348 (2015), we generally do not consider an argument not included in

the appellant’s opening brief. Smith v. Marsh, 194 F.3d 1045, 1052 (9th

Cir. 1999). Moreover, Rodriguez is inapposite because it involves an

officer’s authority to extend a traffic stop to conduct tasks beyond those

“tied to the traffic infraction.” 575 U.S. at 354. Here, Miller was arrested

for the same violation for which he was cited.

MILLER V. CITY OF SCOTTSDALE 13

Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Miller

contends that to comply with due process, Scottsdale police

should have issued notice of his violation of EO 2020-09

following EO 2020-18’s enactment, despite having already

issued two prior warnings. We conclude there is nearly no

risk of erroneous deprivation or value of additional notice in

these circumstances. Miller was arrested for the exact same

behavior for which he had received previous warnings, and

all three instances involved enforcement of A.R.S. § 26-317,

the generic enforcement provision for executive orders

enacted during an emergency. 5

The government’s interest is also significant. We

reiterate as a general rule of law that “in the midst of a

dangerous health emergency,” we must “ensure the proper

deference is given to local governmental officials.”

Seaplane Adventures, LLC, 71 F.4th at 726. Law

enforcement officials enforcing laws enacted under the

guidance of public health officials are no exception. The

Supreme Court recognized in Jacobson v. Massachusetts

that “[t]he authority to determine for all what ought to be

done in such an emergency” can be appropriately granted “in

the first instance, to a board of health composed of persons

residing in the locality affected, and appointed, presumably,

because of their fitness to determine such questions.” 197

U.S. 11, 27 (1905). During pandemics like COVID-19, the

legislative and executive branches have broad powers and

discretion to carry out the recommendations of health

5

The Declaration of Emergency for COVID-19 stated it was authorized

“pursuant to A.R.S. § 26-303(D) and in accordance with A.R.S. § 26-

301(15).” A.R.S. § 26-317 states, “Any person who violates any

provision of this chapter or who knowingly fails or refuses to obey any

lawful order or regulation issued as provided in this chapter shall be

guilty of a class 1 misdemeanor.”

14 MILLER V. CITY OF SCOTTSDALE

officials designed to protect “[t]he safety and the health of

the people.” Id. at 38; S. Bay United Pentecostal Church v.

Newsom, 140 S. Ct. 1613, 1613–14 (2020) (Robert, C.J.,

concurring); see also Roman Cath. Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63, 68 (2020) (per curiam) (“Members of

this Court are not public health experts, and we should

respect the judgment of those with special expertise and

responsibility in this area.”); Slidewaters LLC v. Wash. State

Dep’t of Lab. & Indus., 4 F.4th 747, 758 (9th Cir. 2021)

(“States are given ‘great leeway in adopting summary

procedures to protect public health and safety.’”) (quoting

Mackey v. Montrym, 443 U.S. 1, 17 (1979)).

Such deference is at its height for measures taken, as

here, during the early stages of a pandemic, when local

governmental officials have limited knowledge about a

novel disease and yet must nonetheless act to prevent the loss

of lives. See Seaplane Adventures, LLC, 71 F.4th at 730–31

(“The passage of time and the resulting receding of a crisis

does not make us, as courts, competent to second guess what

the best avenue of action was for a state or local government

when the crisis was raging.”). Only where a legislative or

executive action has “no real or substantial relation” to the

public health and safety or is a “plain, palpable invasion of

rights secured by the fundamental law,” is it “the duty of the

courts to so adjudge, and thereby give effect to the

Constitution.” Jacobson, 197 U.S. at 31. We conclude that

there was no constitutional violation here, much less a

“plain” or “palpable” one. Miller had sufficient notice and

opportunity to comply given the challenges presented by the

COVID-19 pandemic. See Clement v. City of Glendale, 518

F.3d 1090, 1093–94 (9th Cir. 2008) (“The government need

not give notice in an emergency, nor if notice would defeat

the entire point of the seizure, nor when the interest at stake

MILLER V. CITY OF SCOTTSDALE 15

is small relative to the burden that giving notice would

impose.”).

The dissent erroneously concludes it is dispositive that

“the district court didn’t resolve whether 2020-09 and 2020-

12 stood on their own at the time of Miller’s arrest, or

whether 2020-18 applied.” EO 2020-18 states that it “builds

on actions the state has already taken, and further

memorializes some already in effect,” and refers to EO

2020-09 and 2020-12 in its preamble. Officer Bailey could

have relied on any of the three executive orders in arresting

Miller. Arresting Miller without additional notice following

the enactment of EO 2020-18 also does not implicate the Ex

Post Facto Clause. The dissent omits in its quotation of

McGill v. Shinn that the Ex Post Facto Clause “prohibits a

state from retroactively changing the definition of a crime to

make formerly innocent behavior illegal or increasing the

punishment for criminal acts.” 16 F.4th 666, 700–01 (9th

Cir. 2021) (emphasis added). EO 2020-18 did not change

the definition of nor increase the punishment for the crime

for which Miller was arrested: violating a prohibition against

on-site dining.

V. Conclusion

For the foregoing reasons, we affirm the district court’s

grant of summary judgment to the defendants on Miller’s

Section 1983 claims against Officer Bailey and the City of

Scottsdale.

AFFIRMED.

16 MILLER V. CITY OF SCOTTSDALE

HURWITZ, Circuit Judge, concurring:

The issue in this 42 U.S.C. § 1983 case is whether

Scottsdale Police Officer Christian Bailey had probable

cause to arrest Randon Miller on April 11, 2020, for

violating Ariz. Rev. Stat. (“A.R.S.”) § 26-317, which makes

it a class 1 misdemeanor to “knowingly fail[] or refuse[] to

obey any lawful order or regulation issued as provided in this

chapter.” The parties do not dispute that Arizona Governor

Douglas Ducey’s Executive Order (“EO”) 2020-09, which

prohibited “on-site dining” in restaurants at the outset of the

COVID-19 pandemic, was a lawful order “issued as

provided in this chapter.”

As Judge Gould’s opinion makes clear, Officer Bailey

had ample cause to believe that on April 11, Miller was

serving meals in the restaurant he owned and operated, Sushi

Brokers. Officer Bailey also knew that other Scottsdale

police officers had visited the restaurant on March 27 and

28, and those officers had notified Miller that he was

violating EO 2020-09er. Thus, the question in this case is

whether Officer Bailey had probable cause to believe that

this set of facts established a violation of A.R.S. § 26-317.

Miller argues that Officer Bailey lacked probable cause

for two reasons. First, he contends that EO 2020-09 only

applied to businesses, not individuals. Second, citing

another gubernatorial order, EO 2020-18, issued on March

30, 2020, which required that “[p]rior to any enforcement

action being taken to enforce this order in accordance with

A.R.S. § 26-317, a person shall be notified and given an

opportunity to comply,” Miller claims that he did not violate

§ 26-371 because he did not receive notice and an

opportunity to comply before the arrest. Miller argues that

the earlier warnings do not count because they came before

MILLER V. CITY OF SCOTTSDALE 17

EO 2020-18 was issued. Judge Gould’s opinion quite

correctly rejects both arguments.

The starting point, as Judge Gould correctly notes, is

recognizing that establishing probable cause is “not a high

bar.” Op. at 10. We need not decide today whether Miller’s

legal arguments might have prevailed had he gone to trial for

violating the executive order. We do not require arresting

officers to parse the law with the fine-tooth comb that

appellate counsel can wield. Rather, the question is whether

a reasonable officer with the knowledge that Officer Bailey

possessed would believe that Miller had violated EO 2020-

09. See United States v. Lopez, 482 F.3d 1067, 1072 (9th

Cir. 2007) (“Probable cause to arrest exists when officers

have knowledge or reasonably trustworthy information

sufficient to lead a person of reasonable caution to believe

that an offense has been or is being committed by the person

being arrested.”).

I agree with Judge Gould that this undemanding standard

was met. As Miller argues, EO 2020-09 only stated that

“restaurants” could not allow in-person dining; it made no

specific mention of the individuals operating the restaurants.

But A.R.S. § 26-317 applies to “[a]ny person” who violates

an emergency executive order. It should not matter that

Miller owned the restaurant through a limited liability

corporation if he was serving in-person diners. An

individual operating a restaurant is not exempted from EO

2020-09 order simply because formal ownership of the

restaurant is in a corporation he alone controls. Indeed, even

had Officer Bailey been aware that Miller owns Sushi

Brokers through an LLC (something the record does not

indicate Bailey knew), the officer could surely have

reasonably believed that Miller, the sole shareholder in the

18 MILLER V. CITY OF SCOTTSDALE

corporation and the operator of the restaurant, was violating

the order against on-site dining.

Miller’s other argument fares no better. As an initial

matter, it is not at all clear that the prior notice requirement

in EO 2020-18 applies to this case. EO 2020-18 did not

purport to supersede or replace any prior COVID-19

executive order. Indeed, its predominant distinguishing

feature from the prior executive orders directed at public

institutions and businesses was a requirement that individual

Arizona citizens “stay at home.” EO 2020-18’s notice

requirement thus seems best read as applying enforcement

of that “stay at home” order against individuals, rather than

requiring additional notice to business operators, who

already had been told of the requirement to cease in-person

dining in prior orders.

But even if we were to accept Miller’s argument that EO

2020-18 superseded all previous orders and required prior

notice before any A.R.S. § 26-317 arrest or citation, the

result would not change. Miller had two warnings prior to

April 11 that he was violating the ban on in-person dining.

Even if EO 2020-18 somehow established an entirely new

offense, the executive order did not invalidate any prior

warnings. Nor is there an obvious reason to view the

warnings as elements of this supposed new offense; they are

at most just procedural steps required prior to enforcement.

And, even if all of Miller’s complicated legal arguments

are accepted, surely Officer Bailey cannot be faulted for not

having concluded he could arrest Miller. The officer’s belief

that there was probable cause to cite and arrest Miller for

violation of EO 2020-09 was at the very least reasonable, see

Lopez, 482 F.3d at 1072, and that is all the law requires.

MILLER V. CITY OF SCOTTSDALE 19

BUMATAY, Circuit Judge, dissenting:

It is undoubtably true, as my colleagues take pains to

point out, that the COVID-19 pandemic was a danger to

public health and safety. When faced with threats to the

public wellbeing, States may rightfully respond to the

emergency. Even so, the Constitution does not simply lay

dormant during those times. “The rights enshrined by the

Constitution persist in times of crisis and tranquility.”

Tandon v. Newsom, 992 F.3d 916, 930 (9th Cir. 2021)

(Bumatay, J., concurring in part and dissenting in part).

Simply put, an emergency does not authorize government

officials to abandon the protections of the Constitution.

This case tests these concepts in the context of the Fourth

Amendment. Over three weeks in March 2020, the

Governor of Arizona issued three COVID-19-related

emergency orders. First, on March 19, Executive Order

2020-09 prohibited “restaurants” from offering on-site

dining. Office of Governor Douglas A. Ducey, Executive

Order 2020-09 § 2 (Mar. 19, 2020). Second, on March 23,

Executive Order 2020-12 classified “restaurants for

consumption off-premises” as essential businesses. Office

of Governor Douglas A. Ducey, Executive Order 2020-12

§ 3(e)(xiii) (Mar. 23, 2020). Finally, on March 30,

Executive Order 2020-18 ordered residents to stay at home

unless for an authorized purpose. Office of Governor

Douglas A. Ducey, Executive Order 2020-18 (Mar. 30,

2020). Importantly, this order required that “a person shall

be notified and given an opportunity to comply” before “any

enforcement action” may take place. Id. § 14.

Given the dizzying speed of all these orders, confusion

was bound to happen.

20 MILLER V. CITY OF SCOTTSDALE

I.

A.

On April 11, 2020, Scottsdale Police Officer Bailey

arrested Randon Miller, a restaurant owner, for violating the

COVID-19 mandates. See Ariz. Rev. Stat. § 26-317

(prohibiting “knowingly fail[ing] or refus[ing] to obey any

lawful [emergency] order”). But it’s unclear what order

governed at the time of Miller’s arrest. The City of

Scottsdale asserts that 2020-09 and 2020-12 alone justified

the arrest. Miller contends that the newest order, 2020-18,

was the applicable one. To add confusion to the matter, the

district court seemingly conflated 2020-09 and 2020-18. It

held that Miller was arrested under 2020-09, but erroneously

thought 2020-18’s notice-and-opportunity-to-comply

requirement fell under that order. For its part, the majority

simply says that Officer Bailey could have picked whatever

Executive Order he wanted to enforce.

And nobody has a cogent explanation for why their

position on which order or orders apply is the right one. On

this basis alone, I would remand to the district court to

determine in the first instance what law governed at the time

of Miller’s arrest.

B.

No matter the order, however, Officer Bailey had no

legal basis to arrest Miller under § 26-317.

If 2020-09 and 2020-12 governed, then Miller did not

violate the law because those orders applied only to

“restaurants” or “businesses”—not persons. The City of

Scottsdale conceded as much at oral argument.

MILLER V. CITY OF SCOTTSDALE 21

But, if 2020-18 was the governing law, then it didn’t

apply to Miller because he wasn’t afforded the required

notice. Recall that 2020-18 directs that notice and an

opportunity to comply be given before enforcement. See

2020-18 § 14. No such notice and opportunity were given.

While Miller received warnings on March 27 and 28, those

warnings came before 2020-18 went into effect. Indeed, the

order required notice and opportunity to comply with “this

order”—meaning that only warnings made after 2020-18’s

March 31 effective date count. See 2020-18 § 14.

So, in either case, Miller should not have been arrested.

II.

But these legal errors don’t end the inquiry. That’s

because “the Fourth Amendment protects officers who make

reasonable mistakes about whether the law supports an

arrest.” Vanegas v. City of Pasadena, 46 F.4th 1159, 1169–

70 (9th Cir. 2022) (Bumatay, J., concurring) (emphasis

added) (citing Heien v. North Carolina, 574 U.S. 54, 66

(2014)). So not all mistakes of law are treated the same. If

Officer Bailey made a reasonable mistake of law, then the

City of Scottsdale and Officer Bailey are entitled to

dismissal of Miller’s § 1983 charges. If not, this case should

proceed.

What law governed at the time of Miller’s arrest makes

all the difference here.

A.

Assuming only 2020-09 and 2020-12 governed, like my

colleagues, I would hold that Officer Bailey’s legal mistake

about whether those orders applied to individuals was

reasonable. Officer Bailey was dealing with a novel set of

orders, which had not yet been interpreted by any court. See

22 MILLER V. CITY OF SCOTTSDALE

Heien, 574 U.S. at 68 (concluding that a mistake of law was

reasonable when an ambiguous law “had never been

previously construed by [the State’s] appellate courts”).

And holding restaurant owners or operators criminally liable

for what happens within their restaurants seems legally

feasible under Arizona law. See Ariz. Rev. Stat. § 13-306

(“A person is criminally liable for conduct constituting an

offense which such person performs or causes to be

performed in the name of or in behalf of an enterprise to the

same extent as if such conduct were performed in such

person’s own name or behalf.”). But see State v. Angelo, 800

P.2d 11, 15 (Ariz. Ct. App. 1990) (concluding that corporate

officers could not be prosecuted under a tax statute imposing

obligations on a corporation).

So I can’t say that Officer Bailey acted objectively

unreasonably in believing that Miller could be arrested under

2020-09 and 2020-12.

B.

On the other hand, if Officer Bailey was required to rely

on 2020-18, his mistake was not reasonable.

First, it would violate 2020-18’s unambiguous text. The

order requires that, “[p]rior to any enforcement action being

taken to enforce this order,” a person “be notified and given

an opportunity to comply.” 2020-18 § 14. That means

Miller must have received notice under “this order”—

meaning under 2020-18 alone. It’s uncontested that Miller

never received such notice. The March 27 and 28 warnings

couldn’t satisfy notice because they were made before the

order went into effect. Thus, the failure to follow this

straightforward textual requirement makes it not “a really

difficult or very hard question of statutory interpretation,” to

MILLER V. CITY OF SCOTTSDALE 23

which we should grant officers some leeway. See Heien, 574

U.S. at 70 (Kagan, J., concurring) (simplified).

Second, beyond the text, applying 2020-18 here would

unreasonably implicate the prohibition on ex post facto laws.

It is a fundamental tenet of criminal punishment that “[n]o

State shall . . . pass any . . . ex post facto Law.” U.S. Const.

art. I, § 10. Under that Clause, States may not

“retroactively . . . make formerly innocent behavior illegal.”

See McGill v. Shinn, 16 F.4th 666, 700–01 (9th Cir. 2021).

Finding probable cause for Miller’s arrest here would raise

ex post facto concerns.

Executive Order 2020-18 increased the burden on the

government to prosecute individuals who violate the

COVID-19 mandates. It changed the law to require the

government to prove that a person violated the prohibition

on on-site dining at restaurants after being warned and given

an opportunity to comply. By the time of his arrest on

April 11, Miller never received any warnings to comply with

2020-18. The only warnings he received came before 2020-

18’s effective date. So, to arrest him under 2020-18 would

affect Miller’s “substantial rights” and “disadvantage”

Miller by relieving the government of its higher burden and

require applying the law “to actions that pre-date its

enactment.” Id. at 701 (defining ex post facto laws).

Reading the law to apply retroactively is a mistake orders of

magnitude greater than simply misreading a confusing

statute. Cf. Heien, 574 U.S. at 68.

Applying 2020-18 to the facts here would both do

potential harm to a foundational constitutional protection

and disregard the unambiguous text of the order. So, if

2020-18 applied, Officer Bailey’s legal error was not

objectively reasonable under these facts.

24 MILLER V. CITY OF SCOTTSDALE

III.

Because the district court didn’t resolve whether 2020-

09 and 2020-12 stood on their own at the time of Miller’s

arrest, or whether 2020-18 applied, I would vacate the grant

of summary judgment and remand for reconsideration.

I thus respectfully dissent.