Rebecka Jackson-Moeser v. Juno Armstrong, a California Highway Patrol officer, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REBECKA JACKSON-MOESER,
Plaintiff-Appellant,
v.
JUNO ARMSTRONG, a California
Highway Patrol officer, individually,
Defendant-Appellee.
No. 17-56488
D.C. No.
2:16-cv-08733-SVW-JPR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted March 6, 2019
Pasadena, California
Before: WARDLAW and BENNETT, Circuit Judges, and SESSIONS,** District
Judge.
Rebecka Jackson-Moeser appeals the district court’s grant of summary
judgment in favor of California Highway Patrol (“CHP”) Officer Juno Armstrong
on her 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
FILED
APR 3 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
affirm.
1. The district court properly granted summary judgment in favor of
Armstrong on Jackson-Moeser’s Fourth Amendment unconstitutional seizure
claim. Jackson-Moeser failed to raise a genuine dispute of material fact as to
whether she was seized in violation of the Fourth Amendment. Because
Armstrong’s baton strike did “not show an unambiguous intent to restrain,”
Brendlin v. California, 551 U.S. 249, 255 (2007), Jackson-Moeser must prove that
“in view of all of the circumstances surrounding the incident, a reasonable person
would have believed that [s]he was not free to leave,” United States v. Mendenhall,
446 U.S. 544, 554 (1980); see also United States v. McClendon, 713 F.3d 1211,
1215 (9th Cir. 2013) (explaining that meeting the Mendenhall test is “a necessary .
. . condition for seizure” (quoting California v. Hodari D., 499 U.S. 621, 628
(1991))). After Armstrong struck Jackson-Moeser with his baton as the line of
CHP officers was pushing the protesters off the freeway, Jackson-Moeser ran
away; no officers told her to stop or followed her as she left the freeway.
Considering “the totality of the circumstances,” the district court correctly
concluded that Jackson-Moeser was free to leave. Morgan v. Woessner, 997 F.2d
1244, 1253 (9th Cir. 1993).
2. The district court also properly granted summary judgment in favor of
Armstrong on Jackson-Moeser’s First Amendment retaliation claim. Jackson-

-- 2 of 3 --

3
Moeser failed to adduce evidence that she was engaged in “constitutionally
protected activity,” which is a required element of her retaliation claim. O’Brien v.
Welty, 818 F.3d 920, 932 (9th Cir. 2016). When Armstrong struck her with his
baton, Jackson-Moeser was illegally protesting in the middle of a freeway in
violation of a time, place, and manner restriction that she does not challenge. See
Berger v. City of Seattle, 569 F.3d 1029, 1035–36 (9th Cir. 2009). Therefore,
Jackson-Moeser was never “engaged in a constitutionally protected activity” that
could have motivated Armstrong’s allegedly retaliatory baton strike.
AFFIRMED.

-- 3 of 3 --