FILED

NOT FOR PUBLICATION

APR 11 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADAM MICHAEL HORSTMAN, No. 16-35986

Plaintiff-Appellee, D.C. No. 3:15-cv-00203-PK

v.

MEMORANDUM*

CITY OF HILLSBORO, a municipal corporation,

Defendant,

and

DAVID BONN; et al.,

Defendants-Appellants.

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding

Argued and Submitted March 5, 2018 Portland, Oregon

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: N.R. SMITH and HURWITZ, Circuit Judges, and CURIEL,** District Judge.

Appellants David Bonn, Brian Wilber, and Ted Schrader (“Individual

Defendants”) appeal the district court’s order adopting the magistrate judge’s

report and recommendation denying their motion for summary judgment seeking

qualified immunity in this 42 U.S.C. § 1983 action. We have jurisdiction over this

appeal under 28 U.S.C. § 1291, and we reverse.

1. A public official is entitled to qualified immunity unless: (1) “the facts

alleged, taken in the light most favorable to the party asserting the injury, show

that the official’s conduct violated a constitutional right” and (2) the right at issue

“was clearly established ‘in light of the specific context of the case’” at the time of

the alleged misconduct. Clairmont v. Sound Mental Health, 632 F.3d 1091, 1100

(9th Cir. 2011) (citation omitted). In the context of an unlawful arrest, “the two

prongs of the qualified immunity analysis can be summarized as: (1) whether there

was probable cause for the arrest; and (2) 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

** The Honorable Gonzalo P. Curiel, United States District Judge for the Southern District of California, sitting by designation. 2 qualified immunity.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir.

2011).

2. Even assuming that the Individual Defendants lacked probable cause to

arrest Horstman, the district court erred in concluding that they violated a clearly

established constitutional right. A clearly established right is one that is

“sufficiently clear that every reasonable official would have understood that what

he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012)

(internal marks omitted). The district court need not identify “a case directly on

point, but existing precedent must have placed the statutory or constitutional

question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Qualified immunity is meant to protect “all but the plainly incompetent or those

who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

“The dispositive question is whether the violative nature of particular

conduct is clearly established.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

(internal marks and emphasis omitted). In the context of a warrantless arrest, the

established rule must resolve “whether the circumstances with which [the

particular officer] was confronted . . . constitute[d] probable cause.” Id. at 309

(internal marks omitted).

Plaintiff relies primarily on Grant v. City of Long Beach, 315 F.3d 1081 (9th

3 Cir. 2002) to argue that the officers violated clearly established constitutional law.

Under the totality of the circumstances, reasonable officers, reviewing the facts of

Grant, could have disagreed whether there was probable cause to arrest plaintiff.

In this case, unlike Grant, there were eyewitness identifications by two percipient

witnesses as well as similarities in dress and appearance between plaintiff and the

robbery suspect which were captured on separate surveillance videos of the robber

and the plaintiff. Neither Grant, nor any other case cited by plaintiff provided

adequate notice to the officers that they were violating a clearly established

constitutional right under the facts before them here. Moreover, the Supreme

Court has recently cautioned against the “reli[ance] on a single decision” in

determining whether a constitutional right was clearly established by “settled law.”

See District of Columbia v. Wesby, 138 S. Ct. 577, 591 (2018). After a review of

the relevant case law, we cannot conclude that the Individual Defendants violated a

clearly established constitutional right. The district court erred in denying

qualified immunity to the Individual Defendants.

3. Defendant Bonn did not waive his qualified immunity argument as to the

malicious prosecution claim.

REVERSED AND REMANDED.

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