FILED

NOT FOR PUBLICATION

MAY 24 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALVIN JOHNS, No. 18-35127

Plaintiff-Appellee, D.C. No. 6:16-cv-00907-AA

v.

MEMORANDUM*

CITY OF EUGENE; et al.,

Defendants-Appellants.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Submitted May 16, 2019** Portland, Oregon

Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.

In this interlocutory appeal of a 42 U.S.C. § 1983 action, the defendants, law

enforcement officers, appeal the district court’s denial of their motion for summary

* 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). judgment. We have jurisdiction, 28 U.S.C. § 1291, see also Rodis v. City & Cty. of

San Francisco, 558 F.3d 964, 968 (9th Cir. 2009), and we reverse.

The defendants moved for summary judgment below, arguing that they had

probable cause to arrest Johns and that, even if they did not have probable cause,

they were entitled to qualified immunity. The district court found that the question

of probable cause was a triable issue;1 it also found that the jury could plausibly

find that the officers violated established law when they arrested Johns without

first investigating the veracity of the claims made against him by Betsy Castleton.

Accordingly, the district court found that the officers were not entitled to qualified

immunity and denied the officers’ motion for summary judgment.

We disagree that the officers violated clearly established federal law when

they arrested Johns. Though it is clearly established as a matter of federal law that

officers may not conduct a warrantless arrest without probable cause, see United

States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007), the officers had information

1 Though we find that the district court erred in denying qualified immunity to the officers, we note that probable cause may have existed under our precedents. See Peng v. Mei Chin Penghu, 335 F.3d 970, 979 (9th Cir. 2003) (“[A] factual dispute regarding a victim’s complaint at the scene of an alleged domestic disturbance does not defeat probable cause if: 1) the victim’s statements are sufficiently definite to establish that a crime has been committed; and 2) the victim’s complaint is corroborated by either the surrounding circumstances or other witnesses.”). 2 that, if believed, would have easily provided probable cause to arrest Johns.

Specifically, it is undisputed that the officers that responded to the incident were

told by Castleton that Johns had struck her with a baseball bat and then used the bat

to smash her phone. If credited, these statements would be sufficient to persuade

“a person of reasonable caution to believe that an offense has been or is being

committed.” Id.

Johns provided contrary statements to the officers and, in opposing the

officers’ motion for summary judgment, argued that the officers unreasonably

believed Castleton’s account without first investigating the veracity of her claims.

The district court agreed, finding that it was a violation of clearly established

federal law to arrest someone when: “(1) all available physical evidence conflicts

with a purported victim’s version of events and is consistent with a purported

perpetrator’s version of events; (2) the alleged perpetrator is the one who called the

police for help; and (3) the supposed victim is intoxicated and the supposed

perpetrator is sober.” The only cases cited by the district court for the proposition

recited above2 are our circuit’s decisions in Arpin v. Santa Clara Valley

2 It isn’t clear that the district court actually found that this proposition is established by these cases because, while it notes that Johns had argued that this proposition could be drawn from them, the district court also specifically noted that there is no “on-point precedent” that establishes this proposition. 3 Transportation Agency, 261 F.3d 912 (9th Cir. 2001), and Fuller v. M.G. Jewelry,

950 F.2d 1437 (9th Cir. 1991), and the Tenth Circuit’s decision in Cortez v.

McCauley, 478 F.3d 1108 (10th Cir. 2007) (en banc).

However, there are two significant problems with the district court’s reliance

on these cases. First, none of these cases anywhere articulate the “clearly

established” law identified by the district court. Instead, they establish a more

general proposition, i.e. that officers have a duty to reasonably investigate

information or claims that they believe give them probable cause before arresting

an individual on the basis of that information. At most, the proposition articulated

by the district court could arguably be drawn from these decisions, but the mere

fact that a proposition could arguably be drawn from existing cases is not enough

for qualified immunity purposes. See District of Columbia v. Wesby, 138 S. Ct.

577, 590 (2018) (“The precedent must be clear enough that every reasonable

official would interpret it to establish the particular rule the plaintiff seeks to

apply.”); see also Sharp v. County of Orange, 871 F.3d 901, 910 (9th Cir. 2017)

(“The Supreme Court has repeatedly instructed that we examine ‘whether the

violative nature of particular conduct is clearly established’ by controlling

precedent, not whether the conduct violates a general principle of law.”) (quoting

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)).

4 Second, to the extent that these cases clearly establish such a duty for the

officers, there is no clearly established law suggesting that this duty was not

discharged here. The officers did not just accept Castleton’s version of events at

face value and arrest Johns. Instead, it is undisputed that the officers questioned

Castleton, Johns, and Johns’s son, and observed some physical evidence that

corroborated Castleton’s claims before arresting Johns. Neither Johns nor the

district court has cited a case that clearly and unambiguously required the officers

to do more than they did, nor have we been able to locate one that would so

require.

Because the information that the officers obtained during the course of that

investigation was “sufficient to lead a person of reasonable caution to believe that

an offense has been or is being committed by the person being arrested,” Lopez,

482 F.3d at 1072, the officers did not violate clearly established federal law when

they arrested Johns. Therefore we find that the officers are entitled to qualified

immunity, and we reverse the district court’s order and remand for entry of

judgment. The parties shall bear their own costs on appeal.

REVERSED and REMANDED.

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