facts alleged show the officer’s conduct violated a constitutional right’; and (2)

‘whether the right was clearly established.’” Keates v. Koile, 883 F.3d 1228, 1235

(9th Cir. 2018) (alterations omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201

** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 2 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236–42

(2009)).

Plaintiffs argue that they have sufficiently alleged a constitutional violation

pursuant to Board of Directors of Rotary International v. Rotary Club of Duarte

(“Rotary Club”), 481 U.S. 537 (1987), in which the Supreme Court articulated a

four-factor test to determine whether the “objective characteristics” of the

relationship in question were “sufficiently personal or private to warrant

constitutional protection”: (1) size of the group, (2) purpose of the group, (3) its

selectivity, and (4) “whether others are excluded from critical aspects of the

relationship,” id. at 545–46.

Neither plaintiffs nor the district court point to any authority that has applied

the Rotary Club factors and held that non-cohabitating siblings have a First

Amendment right to familial association. See Mann v. City of Sacramento (Mann

IV), 521 F. Supp. 3d 917, 919–20 (E.D. Cal. 2021). Rotary Club did not recognize

such a right. That decision involved an international fraternal organization of

almost a million members that argued a state statute requiring local chapters of the

organization to admit women members violated the First Amendment right of

intimate association. See Rotary Club, 481 U.S. at 539–40. The question

presented was whether the relationship between members of the organization was

3 sufficiently intimate to warrant protection pursuant to the First Amendment. Id. at

544–45.

We acknowledge that the juxtaposition of Mann v. City of Sacramento

(Mann II), 748 F. App’x 112 (9th Cir. 2018), and Mann v. Sacramento Police

Department (Mann III), 803 F. App’x 142 (9th Cir. 2020), cert. denied sub nom.

City of Sacramento, California v. Mann, 141 S. Ct. 622 (2020), caused confusion

regarding the viability of plaintiffs’ First Amendment claim. Mann II could be

read as endorsing the proposition that Ward v. City of San Jose, 967 F.2d 280 (9th

Cir. 1991), forecloses plaintiffs’ Fourteenth Amendment and First Amendment

claims, see Mann II, 748 F. App’x at 115, but Mann III clarified that “Ward

addressed only Fourteenth Amendment intimate-association claims brought by

adult siblings,” 803 F. App’x at 143 (emphasis added). Mann III “remand[ed] for

consideration of Plaintiffs’ First Amendment claim under the standard set forth in

Rotary Club and its progeny.” Id. at 144. On remand, the district court analyzed

Rotary Club and its progeny and determined that plaintiffs sufficiently alleged a

First Amendment violation. Mann IV, 521 F. Supp. 3d at 923–27. We disagree.

4 Neither Rotary Club nor its progeny extended the First Amendment to cover the

circumstances alleged here.1

REVERSED.

1 The district court correctly noted plaintiffs’ Fourteenth Amendment intimate association claims are not at issue because they were foreclosed by Ward, which limited such claims to parents and children. Mann IV, 521 F. Supp. 3d at 919–20. 5