NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 7 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARTHUR BAKER, No. 22-35011

Plaintiff-Appellant, D.C. No. 2:20-cv-00376-CWD

v.

MEMORANDUM*

CLEARWATER COUNTY; CITY OF

OROFINO; AMANDA BARLOW; MATT

RUSSELL; CHRIS GOETZ,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho Candy W. Dale, Magistrate Judge, Presiding

Argued and Submitted February 6, 2023 Portland, Oregon

Before: M. SMITH, FORREST, and SUNG, Circuit Judges. Partial Concurrence and Partial Dissent by Judge M. SMITH.

Arthur Baker appeals the district court’s grant of summary judgment in favor

of Defendants Clearwater County, City of Orofino, Deputy Amanda Barlow, Officer

Matt Russell, and Sherriff Chris Goetz on his 42 U.S.C. § 1983 claims for unlawful

arrest, retaliatory arrest, and excessive force, and dismissal of his state-law tort

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. claim. We have jurisdiction under 28 U.S.C § 1291 and affirm.

1. Unlawful Arrest. 1 A claim for unlawful arrest necessarily fails if the

officers had probable cause to arrest for any criminal offense. See Demarest v. City

of Vallejo, 44 F.4th 1209, 1224 (9th Cir. 2022). Probable cause, an objective inquiry,

“is not a high bar,” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)

(citation omitted), and “exists when there is a fair probability or substantial chance

of criminal activity,” Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th Cir.

2015) (citation omitted).

Here, Deputy Barlow had probable cause to arrest Baker for violating Idaho

Code § 18-705, which prohibits “wilfully resist[ing], delay[ing], or obstruct[ing] any

public officer, in the discharge, or attempt to discharge, of any duty of [her] office.”

When Deputy Barlow arrived at the scene, Baker and his wife were preventing their

neighbor from leaving because of an argument surrounding the neighbor’s right to

use a driveway. Deputy Barlow previously had driven the driveway both on prior

calls for service and in personal interactions with the neighbor, was familiar with the

neighbor’s frequent use of the driveway, and was told by the neighbor that she had

a right to use the driveway. To resolve the confrontation, Deputy Barlow repeatedly

1 While the district court describes Baker’s claim as one of unlawful arrest and malicious prosecution, Baker makes no mention of malicious prosecution in his opening brief. Accordingly, we do not address any distinction between the standards for unlawful arrest and malicious prosecution. See Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016).

2 commanded Baker to open the gate and let the neighbor pass. Baker repeatedly

refused. The law did not require that Deputy Barlow conclusively determine the

neighbors’ relative property rights before taking steps to resolve the ongoing

confrontation in the interest of maintaining peace and order. And Officer Russell,

who later transported Baker to jail, reasonably could rely on Deputy Barlow’s

probable-cause determination. See Torres v. City of Los Angeles, 548 F.3d 1197,

1212 (9th Cir. 2008).

2. Retaliatory Arrest. A claim for retaliatory arrest generally fails if the

arresting officer had probable cause. Nieves v. Bartlett, 139 S. Ct. 1715, 1724–25

(2019). However, there is a “narrow” exception “where officers have probable cause

to make arrests, but typically exercise their discretion not to do so.” Id. at 1727;

Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir. 2022). This exception applies only if

a plaintiff “presents objective evidence that he was arrested when otherwise

similarly situated individuals not engaged in the same sort of protected speech had

not been.” Nieves, 139 S. Ct. at 1727; Ballentine, 28 F.4th at 62. And “[b]ecause this

inquiry is objective, the statements and motivations of the particular arresting officer

are ‘irrelevant’ at this stage.” Nieves, 139 S. Ct. at 1727 (emphases added).

As discussed, Deputy Barlow had probable cause to arrest Baker. And Baker

fails to point to objective evidence triggering Nieves’ “narrow” exception. Sheriff

Goetz’s testimony, on which Baker relies, simply does not establish that similarly

3 situated individuals not engaged in protected speech avoided arrest when Baker did

not—a “required” showing under Nieves. See Ballentine, 28 F.4th at 62. And Baker

provides no other evidence satisfying the Nieves exception. See, e.g., id. (“Plaintiffs

presented objective evidence showing that they were arrested while others who

chalked and did not engage in anti-police speech were not arrested” including

“records indicating only two instances in which chalkers were suspected of or

charged with violating Nevada’s graffiti statute” and “evidence that other individuals

chalking at the courthouse at the same time as Plaintiffs were not arrested.”)

The dissent’s assertion that we are letting Deputy Barlow “have it both ways”

regarding Idaho’s false-imprisonment statute is puzzling given that an arrest is valid

if it is supported by probable cause that any offense has been committed. Demarest,

44 F.4th at 1224. We do not need to address false imprisonment because we all agree

there was probable cause for resisting and obstructing an officer. See id.

And the dissent is incorrect that Baker has presented objective evidence

showing that Barlow treated him differently than others similarly situated who were

not engaged in similar protected expression. Sheriff Goetz was asked only about

arrests for false imprisonment—not resisting and obstructing. And even then, all he

said was that he was “not aware of” any arrest for “false arrest for restricting

[someone’s] movement” in “what might otherwise be a civil dispute.” This is not

objective evidence establishing that Baker was arrested in “circumstances where

4 officers have probable cause to make [an] arrest[], but typically exercise their

discretion not to do so.” See Nieves, 139 S. Ct. at 1727. Sheriff Goetz did not say

whether an analogous circumstance has ever actually occurred. There may be a

range of situations that have not previously resulted in arrest, but that fact, coupled

with a probable-cause backed arrest of an argumentative suspect, is not objective

evidence that the suspect was arrested in retaliation for exercising his First

Amendment rights. Cf. Porter v. Martinez, 64 F.4th 1112, 1126 n.9 (“[C]itations for

violations of the statute are rare, but this says nothing about how frequently the

statute is violated—citations could be rare for the simple reason that violations are

rare.”).

Baker’s unsuccessful request that his neighbor be investigated and charged

with criminal trespass for a prior incident does not change the outcome because that

is a very different offense than restricting and obstructing an officer. And under

Idaho law, an officer cannot make a warrantless arrest for a misdemeanor that did

not occur “in his presence,” subject to certain exceptions not at issue here. 2 Idaho

Code § 19-603; State v. Bishop, 146 Idaho 804, 816 (2009). The suggestion that a

second neighbor, Perry, should have been arrested for trespass and false

2 The dissent stretches the Nieves exception from objective evidence of failure to arrest to “fail[ure] to look into [an] allegation.” But the prior event that Baker wanted charged occurred only days earlier and was in fact “looked into” by a different officer.

5 imprisonment on the day Baker was arrested also misses the point. 3 Again, Perry

was not similarly situated to Baker and did not resist or obstruct Barlow’s attempts

to resolve the confrontation. The plaintiffs in Ballentine satisfied the Nieves

exception because they had objective evidence that officers did not arrest others

engaged in the same allegedly unlawful conduct as plaintiffs—sidewalk chalking.

This objective evidence showed that “others who chalked and did not engage in anti-

police speech were not arrested.” Ballentine, 28 F.4th at 62. Baker provided no

evidence of this character.4

Finally, the dissent’s concern about “far-away federal judges unfamiliar with

the community” usurping the role of the jury is misplaced. The district court judge

in Idaho, hardly “far-away” and unfamiliar with Idaho communities, granted

summary judgment for Barlow. And far-away or not, we are bound by the Supreme

Court’s clear pronouncement that where probable cause exists and there is no

objective evidence establishing the narrow Nieves exception, a claim for retaliatory

arrest fails as a matter of law and should not move forward to trial. Nieves, 139 S.

3 The suggestion that probable cause existed to arrest Perry for false imprisonment is belied by Baker’s photographs of the scene showing that Baker could have moved his vehicle. 4 The dissent ignores the objective evidence that Barlow did not arrest the person who was similarly situated to Baker and who also engaged in protected expression—Baker’s wife. Under Idaho’s broad false-imprisonment statute, Barlow likely had probable cause to arrest Baker’s wife who was just as, if not more, vocal than her husband. But Baker’s wife did not obstruct Barlow’s efforts to end the stand- off and thus was not arrested.

6 Ct. at 1727–28.

3. Excessive Force. Reasonableness is the lodestar under which we

analyze excessive force claims. See Lombardo v. City of St. Louis, 141 S. Ct. 2239,

2241 (2021) (per curiam). Reviewing the evidence in the light most favorable to

Baker, none of the force used against him was unreasonable.

First, Baker’s claims premised on over-tight handcuffing fail. We are

persuaded by our decision in Reyes v. City of Santa Ana, that “[s]ummary judgment

on a tight handcuffing . . . excessive force claim is merited if a plaintiff does not seek

medical help or offer supporting documentary evidence” of more than nominal

injury. 832 F. App’x 487, 491 (9th Cir. 2020) (citing Arpin v. Santa Clara Valley

Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001)). Baker did neither. And Deputy

Barlow responded to Baker’s complaint that the handcuffs were too tight by

adjusting and double locking the handcuffs and later having Baker re-handcuffed.

Second, Deputy Barlow’s use of an “arm bar” was not excessive force. Even

where a suspect offers no active resistance and poses no immediate security threat,

an officer is entitled to use a reasonable degree of force to effectuate taking a suspect

into custody. See Demarest, 44 F.4th at 1225–26. Additionally, Baker concedes that

while Deputy Barlow was trying to handcuff him, he was attempting to place his

cellphone in his pocket, an action Barlow reasonably could have perceived as

resistance. Accordingly, Deputy Barlow’s twisting of Baker’s arm when putting him

7 in handcuffs—without causing any injury—was not unreasonable.

Finally, we reject Baker’s claim that Officer Russell unreasonably aggravated

Baker’s previously existing cervical spine injury when placing him into the patrol

vehicle for transportation to jail. “An officer’s use of force cannot be deemed

excessive based on facts that he reasonably would not have known or anticipated.”

Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017). There is no

indication that Officer Russell knew about Baker’s pre-existing spine injury. And

Officer Russell’s brief pressure on Baker’s head while assisting him into the patrol

vehicle, after Baker requested help, was not otherwise unreasonable. See Demarest,

44 F.4th at 1226.

4. Monell Liability.5 A Monell claim cannot survive without an

underlying constitutional violation. City of Los Angeles v. Heller, 475 U.S. 796, 799

(1986) (per curiam). Because the constitutional claims against the individual

defendants upon which Baker premises his Monell claim were properly dismissed,

Baker’s Monell claim was also properly subject to summary judgment.

5. State-Law Claims. 6 A district court does not abuse its discretion in

declining to exercise supplemental jurisdiction over a plaintiff’s state-law claims

5 Baker did not challenge the district court’s dismissal of his Monell claim against the City of Orofino. 6 Baker conceded his state-law tort claims against the City and Officer Russell below.

8 after disposing of all federal claims. Lima v. U.S. Dep’t of Educ., 947 F.3d 1122,

1128 (9th Cir. 2020). Because the district court properly granted summary judgment

on Baker’s federal claims, the district court’s decision not to exercise supplemental

jurisdiction over Baker’s state law tort claim was not an abuse of discretion.

AFFIRMED.

9

FILED

JUN 7 2023

Baker v. Clearwater County, No. 22-35011 M. Smith, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree that summary judgment is proper on Baker’s unlawful-arrest and

excessive-force claims, but I would reverse summary judgment on Baker’s

retaliatory-arrest claim. Since the district court’s dismissal of Baker’s Monell and

state-law claims was predicated solely on it having concluded that Baker lacked a

viable constitutional claim, I would reverse dismissal of those claims as well.

1. The majority lets Deputy Barlow have it both ways when it comes to

the breadth of Idaho’s false-imprisonment statute (Idaho Code § 18-2901). That

statute contains few limiting principles, and has been interpreted to broadly prohibit

unlawfully interfering with someone’s “freedom of locomotion[:] the right to come

and go or stay, when or where one may choose.” Griffin v. Clark, 42 P.2d 297, 301

(Idaho 1935). Given the statute’s sweeping nature, the majority correctly concludes

that Barlow had probable cause to arrest Baker for his conduct, even if it arose from

a low-stakes property dispute with his neighbor. Yet the majority simultaneously

concludes that there was nothing unusual in Barlow using this statute—which would

seemingly grant probable cause for arrests across a host of everyday interactions in

which someone’s “freedom of locomotion” is restricted—to arrest Baker, and only

Baker, for violating it. I respectfully dissent from the majority’s conclusion that

Baker failed to satisfy the exception to Nieves’s probable-cause requirement, and I

1 would allow a jury to determine whether Baker’s arrest pursuant to this far-reaching

but rarely used statute was retaliatorily motivated.

To fit within the Nieves probable-cause exception, a plaintiff must “present[]

objective evidence that he was arrested when otherwise similarly situated individuals

not engaged in the same sort of protected speech had not been.” Nieves v. Bartlett,

139 S. Ct. 1715, 1727 (2019). We are to apply this objective-evidence requirement

“commonsensically.” Id. at 1734 (Gorsuch, J., concurring in part). Accordingly, in

our court’s leading decision on the issue, we allowed sidewalk chalkers’ retaliatory-

arrest claims to proceed where there was “no evidence that anyone besides the

[p]laintiffs ha[d] been arrested for chalking on the sidewalk” and the record showed

that “other individuals chalking at . . . the same time . . . were not arrested.”

Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir. 2022).

Here, Baker can make a similar showing. 1 The Clearwater County Sheriff

testified that he was “not aware of any [similar] arrest” having taken place in the

county and stated that he did not even know what the elements of false imprisonment

1 The majority finds it “puzzling” that I discuss Baker’s false-imprisonment charge “given that an arrest is valid if it is supported by probable cause that any offense has been committed.” It is unclear what bearing that principle has on the Nieves exception, the point of which is to allow certain claims to survive summary judgment even where probable cause supports the arrest. Moreover, it would render the Nieves exception a dead letter if an officer could distinguish away all similarly situated persons by (1) singling out one person for some substantive offense (here, false imprisonment), and then (2) tacking on a resisting-an-order charge when that person objects to his or her perceived differential treatment.

2 were. Compare id. (“no evidence that anyone besides the [p]laintiffs ha[d] been

arrested [for the relevant offense]”). Moreover, there is evidence that Barlow

declined to investigate or arrest other individuals engaged in the same conduct for

which she arrested Baker. Baker informed Barlow that Nelson (the neighbor who

called the police) had blocked Baker into his property the previous day while

threatening to mace him—but Barlow failed to look into that allegation. Barlow also

testified that when she arrived on the scene she knew that Perry, another neighbor

involved in the dispute, was trespassing on Baker’s property, but she declined to take

any action against him. Indeed, Barlow testified that she had to instruct Perry to

move his vehicle from behind Baker’s truck to “unblock[]” him—suggesting that,

under Idaho’s staggeringly broad false-imprisonment statute, Barlow had probable

cause to arrest Perry for the same offense as Baker but declined to do so. Compare

id. (“other individuals [engaged in the same conduct] were not arrested”). 2

Idaho’s false-imprisonment statute would seem to create probable cause out

of all kinds of innocuous conduct—say, double-parking in the grocery-store parking

lot and accidentally boxing in another car as it was preparing to reverse out of a

parking spot. Yet as one would expect (and indeed, hope), nothing in the record

suggests this criminal prohibition is frequently enforced by the sheriff’s department.

2 While the majority confidently asserts on the basis of one photograph that Perry had not blocked Baker in, the arresting officer’s real-time statements and subsequent deposition testimony characterize the scene differently.

3 It blinks reality, and flouts our obligation to apply Nieves “commonsensically,” to

conclude that Baker failed to produce objective evidence of differential treatment

pursuant to this odd statute.

Moreover, once the Nieves objective-evidence hurdle is cleared, the record

contains ample evidence upon which a jury could conclude that “retaliation was a

substantial or motivating factor behind the arrest.” Ballentine, 28 F.4th at 63

(cleaned up). Barlow, the arresting officer, is friends with Nelson, the neighbor who

called the police: They rode horses and shared meals together, “confide[d] in each

other,” and even discussed law enforcement-related matters. Perry—the neighbor

who trespassed onto Baker’s property, blocked in Baker, but was let off—is a

government official. During the incident, Barlow told Baker that she was “not in the

mood”; he stated, “Let me take a film of you”; and Barlow responded, “Nope, go to

jail.” After Baker’s wife made comments about county law enforcement not acting

“totally upright,” Barlow told her “[i]f you continue, you can come [to jail] too,”

which Barlow explained after the fact as her expressing “irritat[ion]” that Baker’s

wife was “running her mouth.” Viewing the record, Baker’s expert opined that,

based on his law enforcement experience, “[t]he arrest “smacked of ‘contempt of

cop.’”

I do not assert that Barlow did, in fact, arrest Baker in retaliation. Instead, I

simply believe that this factual question should have been resolved by a jury of the

4 parties’ peers, not by far-away federal judges unfamiliar with the community and

what typical law enforcement interactions look like therein.

2. The district court dismissed Baker’s Monell claim solely on the basis

that there was no material dispute as to the “deprivation of any constitutional right.”

It similarly declined to exercise supplemental jurisdiction over Baker’s state-law

claims solely because it dismissed all of Baker’s federal claims. Because I would

reverse the district court’s summary judgment on Baker’s retaliatory-arrest claim, I

would also reverse its dismissal of these claims.

I respectfully concur in part and dissent in part.

5