Anthony Beasley v. City of Keizer

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY BEASLEY,
Plaintiff - Appellant,
v.
CITY OF KEIZER; JOHN TEAGUE,
Captain; JEFF KUHNS, Captain;
TIMOTHY S. LATHROP, Detective;
JOHN TRONCOSO, Sgt.; LORI EVANS;
KATIE SUVER,
Defendants - Appellees.
No. 11-35591
DC No. 6:09 cv-6256 AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted March 4, 2013
Portland, Oregon
Before: TASHIMA, CLIFTON, and BEA, Circuit Judges.
Plaintiff Anthony Beasley appeals from the district court’s grant of summary
judgment in favor of Defendants. Beasley asserts claims under 42 U.S.C. § 1983
FILED
MAY 14 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The District Attorneys concede this issue on appeal, but the Officers1
do not.
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against Deputy District Attorneys Lori Evans and Katie Suver of Marion County
(together, the “District Attorneys”), and against Officer Timothy Lathrop, Captain
John Teague, Captain Jeff Kuhns, and Sergeant John Troncoso of the Keizer Police
Department (collectively, the “Officers”). Beasley alleges Fourth Amendment
violations stemming from the 2007 search of his residence and his subsequent
arrest, which arose in connection with his undisputed production of hashish oil.
The district court granted summary judgment on the ground that, even if there was
no probable cause to believe that Beasley had violated state law, there was no
Fourth Amendment violation because probable cause existed that Beasley had
violated the federal Controlled Substances Act, 21 U.S.C. § 801 et seq. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The relevant Oregon statutes and case law establish that there was no
probable cause of a state law violation. Beasley was registered to grow medical1
marijuana in his home pursuant to the Oregon Medical Marijuana Act (“OMMA”).
Or. Rev. Stat. § 475.302 provides that, for purposes of OMMA, “marijuana” has
the meaning given that term in Or. Rev. Stat. § 475.005. See Or. Rev. Stat.
§ 475.302(6). In State v. Ness, 635 P.2d 1025, 1029-30 (Or. Ct. App. 1981), the

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There is no suggestion that Beasley was not in conformity these2
required conditions. See Or. Rev. Stat. § 475.309(1)(a)-(b); see also Or. Rev. Stat.
§ 475.320.
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Oregon Court of Appeals held that marijuana, hashish, and hashish oil all fall
under § 475.005’s definition of “marijuana.” See also State v. Hasselback, 670
P.2d 632, 632 (Or. Ct. App. 1983). Thus, OMMA’s protections for marijuana
apply, by definition, to hashish oil.
Provided that certain conditions are met, OMMA exempts licensed persons2
“from the criminal laws of the state for possession, delivery or production of
marijuana.” Or. Rev. Stat. § 475.309(1). The Oregon statute relied upon by the
District Attorneys and the Officers at the time of the search and arrest, which
prohibits the manufacturing of controlled substances within 1,000 of a school, falls
within the scope of this exemption. See Or. Rev. Stat. § 475.904. As such, there
was no basis for state criminal liability.
2. Beasley’s Fourth Amendment claims nevertheless fail because both
the Officers and the District Attorneys are entitled to qualified immunity.
Qualified immunity shields government officials from civil liability unless a
plaintiff demonstrates: “(1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). Here, we grant

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qualified immunity under the latter prong of this framework without the need to
decide whether there was an underlying constitutional violation. See Pearson v.
Callahan, 555 U.S. 223, 227 (2009) (permitting inquiry into either prong first).
Even assuming, arguendo, that our decision in United States v. $186,416.00
in U.S. Currency, 590 F.3d 942 (9th Cir. 2010), supported Beasley’s constitutional
claim, that decision postdated the events in question by several years. Beasley is
unable to point to any judicial opinion prior to October 2007 holding that a search
conducted by local officials violates the Fourth Amendment when those officials
do not have probable cause of a state violation but do have probable cause of a
federal violation. Because existing precedent hardly “placed the statutory or
constitutional question beyond debate,” al-Kidd, 131 S. Ct. at 2083, Beasley
cannot demonstrate the violation of a clearly established right. Thus, both the
District Attorneys and the Officers are entitled to qualified immunity.
The Officers are entitled to qualified immunity on the additional ground that
they reasonably relied on the District Attorneys’ legal advice. Although reliance
on a prosecutor’s legal advice “will not automatically insulate an officer from
liability, it goes far to establish qualified immunity.” Ewing v. City of Stockton,
588 F.3d 1218, 1231 (9th Cir. 2009) (internal quotation marks omitted). In the
instant case, the District Attorneys rendered advice on a purely legal question, the

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answer for which required a proper reading of a complex statutory scheme and
applicable case law. Indeed, Officer Lathrop proceeded precisely as one would
want an officer to proceed under the circumstances – unsure of a novel legal
question, he consulted with a prosecutor for guidance. Thus, the Officers were not
“plainly incompetent,” nor did they “knowingly violate the law,” and qualified
immunity is appropriate. al-Kidd, 131 S. Ct. at 2085 (internal quotation marks
omitted).
The judgment of the district court is AFFIRMED.

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