FILED

NOT FOR PUBLICATION

MAR 15 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW M. GAINER and WENDY No. 16-35047

GAINER,

D.C. No. 3:14-cv-01346-SI Plaintiffs-Appellants,

v. MEMORANDUM*

CITY OF TROUTDALE; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted March 9, 2018** Portland, Oregon

Before: N.R. SMITH, CHRISTEN, and HURWITZ, Circuit Judges.

Plaintiff-Appellant Andrew Gainer appeals the district court’s order granting

summary judgment to the defendants on all claims. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

* 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). 1. Invoking our decision in United States v. Lundin, 817 F.3d 1151 (9th Cir.

2016), Gainer first argues the defendants violated the Fourth Amendment by

arresting him at the threshold of his home without a warrant. In 2013, however,

when the events of this case took place, it was not clearly established that arriving

at a suspect’s home to conduct a probable cause arrest if he agreed to step outside

violated federal law. See Florida v. Jardines, 569 U.S. 1, 8 (2013) (concluding

that visitors to a home, including police officers, have an implied license

permitting them “to approach the home by the front path, knock promptly, wait

briefly to be received, and then (absent invitation to linger longer) leave”).

Because going to Gainer’s home to “see if Mr. Gainer would voluntarily exit his

house so that a probable cause arrest could be made” did not violate clearly

established law in 2013, the defendants are entitled to qualified immunity on this

claim. See Tolan v. Cotton, 134 S. Ct. 1861, 1865–66 (2014).

2. Officers interviewed three witnesses who told substantially the same story

implicating Gainer. The defendants also engaged in an independent investigation

of the alleged events by reviewing Travis Steele’s medical records, observing

Steele’s blood in another witness’s car, and returning to the Brass Rail to attempt

to find other witnesses. The evidence officers had before them thus was sufficient

to establish probable cause. See Yousefian v.City of Glendale, 779 F.3d 1010,

2 1014 (9th Cir. 2015) (probable cause requires only that the “facts and

circumstances within the officer’s knowledge are sufficient to warrant a prudent

person to believe that the suspect has committed an offense” (quoting Barry v.

Fowler, 902 F.2d 770, 773 (9th Cir. 1990)). The Fourth Amendment did not

require the defendants to conduct any further investigation prior to arresting him.

Cf. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001)

(holding officers who relied on the “unexamined charge” of a single witness (the

victim) and failed to “independently investigate” the witness’s claim of battery did

not have probable cause to arrest the defendant).

3. Gainer alleges that even if officers had probable cause to conduct the

arrest, it dissipated during his post-arrest interview with police when Gainer

provided the names of three other people who might have witnessed the event,

contested the location of the assault, and explained that two men (not just one)

“came at” him and that he struck one of them in self-defense. But it is unclear

from Gainer’s interview whether the individuals he mentioned saw who threw the

first punch, or even witnessed the altercation at all. Gainer’s assertion that the

assault took place in a different parking lot, coupled with the investigating officer’s

inability to find blood in the Brass Rail parking lot, perhaps should have prompted

officers to further inquire as to the precise location of the incident, but these

3 discrepancies hardly constituted the sort of “substantial, countering indicators” that

have been held to dissipate probable cause, United States v. Lopez, 482 F.3d 1067,

1074 (9th Cir. 2007), given that the two locations were within 40 feet of each

other. Probable cause thus did not dissipate after Gainer’s post-arrest interview

with police.

4. Because we conclude as a matter of law that officers had probable cause

to arrest Gainer and probable cause did not dissipate thereafter, his remaining

federal claims also fail. See Yousefian, 779 F.3d at 1016. As Gainer

acknowledges, our conclusion about probable cause is also fatal to his state-law

claims.

AFFIRMED.

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