NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 17 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUIDO “GUY” BINI, an individual citizen, No. 17-35501

Plaintiff-Appellant, D.C. No. 3:16-cv-05460-BHS

v.

MEMORANDUM*

CITY OF VANCOUVER, a municipal corporation, and SANDRA ALDRIDGE, in her individual capacity and her official capacity as police officer for City of Vancouver,

Defendants-Appellees.

GUIDO “GUY” BINI, an individual citizen, No. 17-35517

Plaintiff-Appellee, D.C. No. 3:16-cv-05460-BHS

v.

CITY OF VANCOUVER, a municipal corporation, and SANDRA ALDRIDGE, in her individual capacity and her official capacity as police officer for City of Vancouver,

Defendants-Appellants.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 4

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted December 3, 2018 Seattle, Washington

Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

Guido “Guy” Bini appeals from the district court’s order dismissing his

claims under 42 U.S.C. § 1983 against Officer Sandra Aldridge. Aldridge and the

City of Vancouver have filed a cross-appeal challenging the district court’s

dismissal without prejudice of Bini’s state-law claim, arguing that the claim should

have been dismissed with prejudice. We affirm.

1. Aldridge is entitled to summary judgment on Bini’s Fourth Amendment

wrongful arrest claim because the undisputed facts at the time of his first arrest

established probable cause to believe that he had committed misdemeanor

cyberstalking. See Wash. Rev. Code § 9.61.260(1). The same facts established

probable cause for his second arrest, and nothing that happened between the two

arrests caused that probable cause to dissipate.

Bini argues that the cyberstalking statute is best read to require more than

one communication to the same “third party.” Id. But even if that reading were

required, Aldridge had probable cause to believe that Bini sent more than one

email to at least one of the recipients on his list, namely, Nathan Smith. Based on

the disparaging content of the emails and the identity of the individuals to whom Page 3 of 4

they were sent, Aldridge also had probable cause to believe that Bini sent the

emails with the intent to “harass” or “embarrass” Sheryl Smith. It does not matter

that Washington’s cyberstalking statute may be subject to constitutional challenge,

since “[t]he enactment of a law forecloses speculation by enforcement officers

concerning its constitutionality.” See Michigan v. DeFillippo, 443 U.S. 31, 38

(1979). Finally, Aldridge had probable cause to believe that the emails were sent

from Washington State, where Aldridge knew Bini lived. Wash. Rev. Code

§ 9.61.260(4).

2. Officer Aldridge is entitled to qualified immunity on Bini’s First

Amendment retaliatory arrest claim. At the time of Bini’s arrests, it was not

clearly established in this circuit that an arrest supported by probable cause, but

made in retaliation for protected speech, violated the Constitution. It is true that

we held in Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013) (per curiam)—

more than a year before Bini’s first arrest in 2014—that such a right was clearly

established in this circuit. Id. at 1196. But a month later we held that the same

right had not been clearly established. Acosta v. City of Costa Mesa, 718 F.3d 800,

808, 825 (9th Cir. 2013) (per curiam).

These two holdings have resulted in some confusion about the state of the

law in this circuit. See, e.g., Mihailovici v. Snyder, No. 3:15-cv-01675, 2017 WL

1508180, at *7 (D. Or. Apr. 25, 2017) (“One can hardly argue that the question is Page 4 of 4

‘beyond debate’ when not even the Ninth Circuit has been able to settle on one

position.”); Blatt v. Shove, No. C11-1711, 2014 WL 4093797, at *5 (W.D. Wash.

Aug. 18, 2014). It appears self-evident that, if district courts in our circuit have

had significant difficulty identifying the rule established by our cases, our

precedent did not “place[] the . . . constitutional question beyond debate.” Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011).

3. On cross-appeal, Aldridge and the City of Vancouver challenge the

district court’s refusal to dismiss Bini’s state-law claim, brought under

Washington’s Criminal Records Privacy Act, with prejudice. After dismissing the

federal claims raised in this action, the district court did not abuse its discretion by

declining to exercise supplemental jurisdiction over the remaining state-law claim.

See Sinaloa Lake Owners Association v. City of Simi Valley, 70 F.3d 1095, 1102

(9th Cir. 1995). That claim raises a difficult and unsettled issue of statutory

interpretation under Washington law that is best resolved in state court.

The motion of the Washington State Association of Municipal Attorneys for

leave to file an amicus brief (Docket No. 29) is GRANTED.

AFFIRMED.

FILED

Bini v. City of Vancouver, Nos. 17-35501, 17-35517

DEC 17 2018

WATFORD, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I would have refrained from deciding whether Bini’s First Amendment

retaliatory arrest claim can proceed until after the Supreme Court decides Nieves v.

Bartlett, No. 17-1174 (argued Nov. 26, 2018). There the Court is expected to

resolve whether the existence of probable cause to arrest precludes a claim alleging

that the arrest was made in retaliation for the plaintiff’s exercise of his right to free

speech. If the Court holds in Nieves that the existence of probable cause precludes

such a claim, we would of course affirm the district court’s dismissal of Bini’s

retaliatory arrest claim, since, as we hold today, Officer Aldridge did have

probable cause to arrest Bini for misdemeanor cyberstalking. But if the Supreme

Court were to come out the other way, I think we would be compelled to reverse

the district court’s ruling. Bini has proffered sufficient evidence to require a jury

to decide whether Officer Aldridge arrested him not because he committed

misdemeanor cyberstalking, but instead in retaliation for his sharp criticism of

Officer Aldridge’s handling of a separate investigation.

The majority concludes that we need not wait for the Supreme Court’s

decision in Nieves because Officer Aldridge will be entitled to qualified immunity

either way. I disagree. In 2014, when Officer Aldridge arrested Bini, the law in

our circuit was clearly established in the respect relevant here: In 2013, we Page 2 of 3

squarely held that an officer may not arrest someone in retaliation for their

protected speech, even if the arrest was otherwise supported by probable cause.

Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013) (per curiam). The

validity of that rule is precisely what the Supreme Court will likely decide in

Nieves.

The district court held that, notwithstanding our holding in Ford, the law in

our circuit remains unsettled because of our subsequent decision in Acosta v. City

of Costa Mesa, 718 F.3d 800 (9th Cir. 2013) (per curiam). In that case we held

that our precedent had not clearly established a right to be free from retaliatory

arrest when an arrest is otherwise supported by probable cause. Id. at 825. But in

Acosta we were determining the state of the law as it stood in 2006, when Acosta

was arrested. Id. at 808. The decision has nothing to say about the state of the law

in 2014, when Bini was arrested. By then, as noted, our decision in Ford had

resolved whatever uncertainty remained in our circuit’s case law. Thus, at the time

she acted, Officer Aldridge had clear notice that she would be violating Bini’s First

Amendment rights if she arrested him in retaliation for his protected speech, even

if there was probable cause to believe he had committed misdemeanor

cyberstalking.

Since the outcome in Nieves will in my view determine whether Bini’s

retaliatory arrest claim can go forward, we should have held this case until Nieves Page 3 of 3

is decided.