NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 19 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATTHEW MGLEJ, No. 16-35126

Plaintiff-Appellant, D.C. No. 3:15-cv-00096-MO

v.

MEMORANDUM*

MULTNOMAH COUNTY, a political subdivision of the state of Oregon; MULTNOMAH COUNTY SHERIFF'S

OFFICE; MULTNOMAH COUNTY

DEPARTMENT OF CORRECTIONS;

PORTLAND POLICE BUREAU; CRAIG

DOBSON, Police Officer; SARAH PAYTON, Police Officer; MELISSA J. NEWHARD, Police Officer; ENGSTORM, Police Officer; BRUCE S. BLEDSOE;

JOHN DOES, 1-10,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, Chief Judge, Presiding

Argued and Submitted March 8, 2018 Portland, Oregon

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Matthew Mglej was arrested after staging a nude protest in front of the

Portland federal district courthouse. After the City of Portland dropped all charges,

Mglej filed this 42 U.S.C. § 1983 action against the City, Multnomah County,

County deputies, and Portland police officers, alleging unlawful arrest, malicious

prosecution, violations of his free speech rights under the state and federal

constitutions, and state law assault and battery. The district court granted summary

judgment to the defendants on all but the assault and battery claims against the

County, and a jury returned a defense verdict. Mglej timely appealed from the

resulting judgment, and we affirm.

1. The City of Portland police officers were entitled to qualified immunity on

Mglej’s Fourth Amendment claims. “[Q]ualified immunity is available if a

reasonable police officer could have believed that his or her conduct was lawful, in

light of clearly established law and the information the . . . officers possessed.”

Fuller v. M.G. Jewelry, 950 F.2d 1437, 1443 (9th Cir. 1991). Mglej argues that City

of Portland v. Gatewood, 708 P.2d 615 (Or. App. 1985) (in banc), clearly establishes

that his arrest under Portland’s indecent exposure law violated the Oregon

constitution. But that case found Portland’s Code provision facially constitutional,

stating only that it sometimes may be unconstitutional as applied. Id. at 617–18.

Because the case does not establish “beyond debate” that Mglej’s actions were

lawful, the officers are entitled to qualified immunity. Mullenix v. Luna, 136 S. Ct.

2 305, 308 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

2. The district court properly held that there is no private right of action for

damages under the free-speech provision of Oregon Constitution. See Hunter v. City

of Eugene, 787 P.2d 881, 884 (Or. 1990) (“[P]ersons whose rights under Article I,

section 8, of the Oregon Constitution are violated by a municipality or its employes

[sic] may not bring an action for damages against the municipality or its employes

[sic] directly under the constitution, but will be limited to existing common-law,

equitable, and statutory remedies.”).

3. The Portland police officers are entitled to qualified immunity on Mglej’s

First Amendment claims. Whether the First Amendment protects conduct turns on

“whether [a]n intent to convey a particularized message was present, and [whether]

the likelihood was great that the message would be understood by those who viewed

it.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418

U.S. 405, 410–11 (1974) (per curiam)) (alterations in original). Nudity by itself is

not expressive conduct, Barnes v. Glen Theatre, Inc., 501 U.S. 560, 570 (1991), and

no case clearly establishes that Mglej’s conduct constitutes protected speech, see

Mullenix, 136 S. Ct. at 309.

4. Mglej also argues that the district court erred by stating, in response to a

juror’s question about whether Mglej’s public nudity was legal, that “the law

regarding public nudity is not relevant to t[his] case.” That answer was correct. The

3 sole issue at trial was whether the County officers assaulted Mglej while he was in

custody. The legality of Mglej’s prior conduct was irrelevant to the jury’s task.

AFFIRMED.

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