Salvador Reza v. Russell Pearce

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SALVADOR REZA, No. 13-15154 Plaintiff-Appellant, D.C. No. v. 2:11-cv-01170-

FJM

RUSSELL PEARCE; JEFF TRAPP; JOHN

BURTON,

Defendants-Appellees. OPINION

Appeal from the United States District Court for the District of Arizona Frederick J. Martone, Senior District Judge

Argued and Submitted March 12, 2015—San Francisco, CA

Filed August 18, 2015

Before: J. Clifford Wallace, Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.; Partial Concurrence and Partial Dissent by Judge Wallace SUMMARY*

Civil Rights

The panel reversed the district court’s summary judgment in favor of Arizona State Senator Pearce and affirmed the district court’s Fed. R. Civ. P. 12(b)(6) dismissal of claims against police officers in plaintiff’s action alleging that: (1) Senator Pearce violated plaintiff’s constitutional rights when he ordered plaintiff removed, and barred, from the Arizona Senate building; and (2) police officers violated plaintiff’s rights when they prevented plaintiff from entering the…

Order; Opinion by Judge MILAN D. SMITH, JR.; Partial Concurrence and Partial Dissent by Judge WALLACE.

ORDER

The panel has voted to deny the petition for panel rehearing. Judges Smith and Watford voted to deny the petition for rehearing en banc, and Judge Wallace so recommends. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on en banc rehearing. See Fed. R.App. P. 35(f). The petition for panel rehearing and the petition for rehearing en banc are DENIED. The court’s opinion and the dissent filed August 18, 2015, and appearing at 798 F.3d 881 (9th Cir.2015), are hereby amended. An amended opinion and dissent are filed herewith. No further petitions for rehearing or rehearing en banc may be filed.

OPINION

*500 Amendment. The district court assumed that if such a mistake was made, then it did not violate clearly 'established law to bar Reza from the building in the future based on a fear of future disturbances.

Reza also alleges that officers Jeff Trapp and' John Burton violated his rights under the First and Fourth Amendments by preventing Reza from entering the Building, and ultimately arresting him. Reza…

concurring in part and dissenting in part:

I - dissent from Part I of the majority opinion, which incorrectly holds that Senator Pearce “violated Reza’s clearly established First Amendment rights.” Opinion p. 505. The Supreme Court has repeatedly cautioned courts — and our circuit in particular — “not [to] define clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731 , 131 S.Ct. 2074, 2084 , 179 L.Ed.2d 1149 (2011); see also City & Cnty. of San Francisco v. Sheehan, — U.S. -, 135 S.Ct. 1765, 1778 , 191 L.Ed.2d 856 (2015) (reversing our circuit’s decision on the basis that the officers were entitled to qualified immunity); Lopez v. Smith, — U.S. -, 135 S.Ct. 1, 6 , 190 L.Ed.2d 1 (2014) (per cu-riam) (reversing our circuit’s decision and cautioning us against “framing our precedents at such a high level of generality” (internal quotation marks omitted)). Rather than correct the course, as directed by the Supreme Court, in this case, the majority continues in the wrong direction and I therefore dissent.

To recover under 42 U.S.C. § 1983 Reza must show (1) that Senator Pearce violated one of Reza’s statutory or constitutional rights, and (2) that…