Adam Michael Horstman v. City of Hillsboro, a municipal corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAM MICHAEL HORSTMAN,
Plaintiff-Appellee,
v.
CITY OF HILLSBORO, a municipal
corporation,
Defendant,
and
DAVID BONN; et al.,
Defendants-Appellants.
No. 16-35986
D.C. No. 3:15-cv-00203-PK
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted March 5, 2018
Portland, Oregon
FILED
APR 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Before: N.R. SMITH and HURWITZ, Circuit Judges, and CURIEL,** District
Judge.
Appellants David Bonn, Brian Wilber, and Ted Schrader (“Individual
Defendants”) appeal the district court’s order adopting the magistrate judge’s
report and recommendation denying their motion for summary judgment seeking
qualified immunity in this 42 U.S.C. § 1983 action. We have jurisdiction over this
appeal under 28 U.S.C. § 1291, and we reverse.
1. A public official is entitled to qualified immunity unless: (1) “the facts
alleged, taken in the light most favorable to the party asserting the injury, show
that the official’s conduct violated a constitutional right” and (2) the right at issue
“was clearly established ‘in light of the specific context of the case’” at the time of
the alleged misconduct. Clairmont v. Sound Mental Health, 632 F.3d 1091, 1100
(9th Cir. 2011) (citation omitted). In the context of an unlawful arrest, “the two
prongs of the qualified immunity analysis can be summarized as: (1) whether there
was probable cause for the arrest; and (2) whether it is reasonably arguable that
there was probable cause for arrest—that is, whether reasonable officers could
disagree as to the legality of the arrest such that the arresting officer is entitled to
** The Honorable Gonzalo P. Curiel, United States District Judge for the
Southern District of California, sitting by designation.
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qualified immunity.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir.
2011).
2. Even assuming that the Individual Defendants lacked probable cause to
arrest Horstman, the district court erred in concluding that they violated a clearly
established constitutional right. A clearly established right is one that is
“sufficiently clear that every reasonable official would have understood that what
he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012)
(internal marks omitted). The district court need not identify “a case directly on
point, but existing precedent must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
Qualified immunity is meant to protect “all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
“The dispositive question is whether the violative nature of particular
conduct is clearly established.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
(internal marks and emphasis omitted). In the context of a warrantless arrest, the
established rule must resolve “whether the circumstances with which [the
particular officer] was confronted . . . constitute[d] probable cause.” Id. at 309
(internal marks omitted).
Plaintiff relies primarily on Grant v. City of Long Beach, 315 F.3d 1081 (9th
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Cir. 2002) to argue that the officers violated clearly established constitutional law.
Under the totality of the circumstances, reasonable officers, reviewing the facts of
Grant, could have disagreed whether there was probable cause to arrest plaintiff.
In this case, unlike Grant, there were eyewitness identifications by two percipient
witnesses as well as similarities in dress and appearance between plaintiff and the
robbery suspect which were captured on separate surveillance videos of the robber
and the plaintiff. Neither Grant, nor any other case cited by plaintiff provided
adequate notice to the officers that they were violating a clearly established
constitutional right under the facts before them here. Moreover, the Supreme
Court has recently cautioned against the “reli[ance] on a single decision” in
determining whether a constitutional right was clearly established by “settled law.”
See District of Columbia v. Wesby, 138 S. Ct. 577, 591 (2018). After a review of
the relevant case law, we cannot conclude that the Individual Defendants violated a
clearly established constitutional right. The district court erred in denying
qualified immunity to the Individual Defendants.
3. Defendant Bonn did not waive his qualified immunity argument as to the
malicious prosecution claim.
REVERSED AND REMANDED.
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