Wheeler

dissenting:

Because I believe that Officer Coss had probable- cause to arrest Wheeler for the crime of harassment, I respectfully dissent.

“The test for whether probable cause exists is whether at the moment of arrest the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man believing that the [accused] had committed ... an offense.” United States v. Jensen, 425 F.3d 698, 704 (9th Cir.2005) (internal citation omitted). Here, Officer Coss had reason to believe that Wheeler had knowingly threatened to cause bodily injury to Brown and had put Brown in reasonable fear that the threat would be carried out. See Nev.Rev.Stat. § 200.571; Reno Mun.Code § 8.08.025.

Although ambiguous, Wheeler’s statement he was “going to come home and take care of [Brown]” could imply an intent to harm, especially if uttered by an angry, estranged husband. Threats have everything to do with context, as our sister circuits have recognized, so facially innocuous statements may in fact constitute threats based on the surrounding circumstances. See United States v. Cothran, 286 F.3d 173, 175-76…

MEMORANDUM *

Reno Police Officer Brent Coss appeals the district court order denying him qualified immunity for arresting plaintiff Robert Wheeler. The district court granted partial summary judgment to Wheeler, holding that there was no probable cause for his arrest and that Coss was not entitled to qualified immunity. We agree with the district court and, reciting the facts only as necessary, affirm its decision.

Coss argues that he had probable cause to arrest Wheeler for harassment and, even if probable cause was lacking, he was entitled to qualified immunity because it would not have been clear to a reasonable officer that the arrest was unlawful.

“Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested.” Rodis v. City & County of San Francisco, 558 F.3d 964, 969 (9th Cir.2009) (internal quotation omitted). “In establishing probable cause, officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but must independently investigate the basis of the witness’…