Skoog v. County of Clackamas

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DANIEL SKOOG, 
Plaintiff-Appellee,
v.
No. 04-35087
COUNTY OF CLACKAMAS; MARK
FRESH,  D.C. No.
CV-00-01733-
Defendants,
MWM
and
HERBERT ROYSTER,
Defendant-Appellant.


DANIEL SKOOG, 
Plaintiff-Appellant, No. 04-35286
v.
 D.C. No.
CV-00-01733-
COUNTY OF CLACKAMAS; MARK
FRESH; HERBERT ROYSTER, MWM
Defendants-Appellees.


DANIEL SKOOG, 
Plaintiff-Appellant,
v. No. 04-35568
COUNTY OF CLACKAMAS;
Defendant-Appellee,  D.C. No.
CV-00-01733-MO
and OPINION
MARK FRESH; HERBERT ROYSTER,
Defendants.

18617
18618 SKOOG v. ROYSTER
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding

Argued and Submitted
March 9, 2006—Portland, Oregon

Filed November 20, 2006

Before: Melvin Brunetti, Thomas G. Nelson, and
Richard A. Paez, Circuit Judges.

Opinion by Judge T.G. Nelson
 SKOOG v. ROYSTER 18621

COUNSEL

Montomery W. Cobb, Cobb & Bosse, LLP, Portland, Oregon,
for plaintiff-appellant-appellee Daniel Skoog.
18622 SKOOG v. ROYSTER
Rolf C. Moan, Assistant Attorney General, Salem, Oregon,
for defendant-appellant-appellee Herbert Royster.

Edward S. McGlone, Assistant County Counsel, Clackamas
County, Oregon City, Oregon, for defendant-appellee County
of Clackamas.

OPINION

T.G. NELSON, Circuit Judge:

I. Introduction

This set of appeals arises from a single lawsuit that is still
ongoing. The district court granted summary judgment on the
basis of qualified immunity to one of the defendants, Officer
Herbert Royster, on all but one claim: the plaintiff’s claim
that Royster seized his still camera in retaliation for the exer-
cise of his First Amendment rights. In 04-35087, Royster
interlocutorily appeals the court’s denial of summary judg-
ment on that claim, and we reverse. Although the plaintiff
stated a valid retaliation claim, the right assertedly violated —
the right to be free of intentional, retaliatory action for which
probable cause exists — was not clearly established. Accord-
ingly, Royster is entitled to summary judgment based on the
second prong of our qualified immunity analysis.

In part of 04-35286, the plaintiff, Daniel Skoog, appeals the
district court’s grant of summary judgment to Royster based
on qualified immunity on Skoog’s illegal search and seizure
claim. On the facts pled in the complaint, it is clear that prob-
able cause existed for the search and seizure. Accordingly, we
affirm the district court’s grant of summary judgment based
on the first prong of the qualified immunity analysis.

In the remainder of 04-35286, Skoog seeks to appeal the
district court’s limitation of his retaliation claim (the subject
 SKOOG v. ROYSTER 18623
of Royster’s interlocutory appeal) to one item and its denial
of his motion for leave to amend. In 04-35568, he seeks to
appeal various other decisions of the district court. We lack
jurisdiction over these issues because the district court did not
certify them pursuant to Federal Rule of Civil Procedure
54(b) and no final judgment exists regarding them.

II. Background1

On February 19, 2001, Officer Herbert Royster first
encountered the plaintiff, Daniel Skoog. At the time, Royster
was engaged in a sting operation at a Get & Go convenience
store. Using a juvenile “decoy,” he caught the cashier selling
tobacco products to a minor. While engaged in conversation
with the cashier, Royster noticed Skoog filming him with a
digital video camera.

Skoog had been in a dispute with the county since his arrest
on a DUI charge in December 2000. He had been photograph-
ing and videotaping police activities for some time. It so hap-
pened that Skoog’s business, which sells protective armor to
law enforcement agencies, is in the same building as the Get
& Go. Skoog had gone to the store to buy some tobacco when
he noticed Royster talking loudly to the cashier. He then
retrieved his video camera from his office and began filming.

Skoog filmed the scene from outside the store for approxi-
mately two minutes. During that time, Royster was talking
with the cashier, and the juvenile “decoy” and at least three
other customers were inside the store. Skoog was not close
enough to Royster to record his conversation with the cashier.
However, after Skoog had been filming for two minutes,
Royster approached Skoog, showed him his police identifica-
tion, and asked why he was filming. Skoog told him he just
enjoyed filming things.
1
The facts are derived from the complaint, supporting documentation,
and the district court’s opinion, and are interpreted in the light most favor-
able to the plaintiff.
18624 SKOOG v. ROYSTER
Royster told Skoog that he might have committed a crime,
saying that “if you are recording my words, sir, without noti-
fying me, that is a felony offense in the State of Oregon . . . .
If you are recording my voice, you must advise me before you
do so . . . .” Skoog admitted that he had recorded Royster’s
voice. Royster asked for the videotape. Skoog refused to give
it to him, but told him he would give him a copy. Royster said
that he would turn the matter over to the Clackamas County
District Attorney’s office.

Skoog returned to his office and began making a copy of
the videotape. Royster requested a uniformed deputy to
accompany him to Skoog’s office. When that deputy, Deputy
Kraus, arrived at the scene, he gave Royster some background
regarding Skoog.

Specifically, Kraus told Royster that Skoog was engaged in
a lawsuit against the county and another deputy, Deputy
Fresh, who had arrested Skoog on the DUI charge in Decem-
ber 2000. Skoog had filed a suit alleging that Deputy Fresh
had arrested him without probable cause and with excessive
force, and that county officials had denied him medical treat-
ment for the eleven hours he was in the county jail. Skoog
subsequently added other claims to the suit, including those
on appeal. In addition to that suit, the criminal proceeding for
the DUI was continuing in state court at the time of the Get
& Go incident.

After Royster learned of Skoog’s suit, he and Deputy Kraus
went to Skoog’s office. There, Skoog was using his computer
to copy the videotape. As the tape played on the computer, the
deputies saw and heard the part of the tape in which Royster
was talking to Skoog. Skoog gave them “what purported to be
a copy of the tape.” He also took photos of the officers with
his “still” (i.e., not video) digital camera. Of particular impor-
tance to this appeal is the fact that Royster believed that
Skoog’s video camera, attached to his computer, may have
been in the background of the photos.
 SKOOG v. ROYSTER 18625
Royster heard from fellow officers that Skoog had been
taking photographs of other officers. Indeed, as part of his
defense in his state DUI case and in his federal § 1983 claims,
Skoog had been taking pictures of officers watching his house
and following people who left his house. He stored his photos
and observations on his computer. Royster told fellow officers
that Skoog had been “venemous” during their encounter. He
also described Skoog as presenting a danger to law enforce-
ment and described “the protective armor, large caliber shells,
and bullet-riddled car door he had seen while in [the] plain-
tiff’s office.”

Over two weeks after the incident with Skoog at the Get &
Go, Royster viewed the tape Skoog had given him. It turned
out to be a partial copy containing only the first fourteen sec-
onds of the tape. Royster sought advice from his superiors and
from the District Attorney’s office. The District Attorney’s
office told him that he had sufficient evidence to approach a
judge. Royster obtained a search warrant from a magistrate
judge.

In the affidavit accompanying his application for the search
warrant, Royster stated that the reason for the warrant was to
obtain evidence of a violation of Oregon Revised Statute Sec-
tion 165.543, a statute that makes it a misdemeanor to inter-
cept oral communications when “none of the parties to the
communication has given prior consent to the interception.”2
Royster sought and received a warrant authorizing the seizure
of Skoog’s computer system and associated hardware, video
cameras, and, most important to this appeal, Skoog’s still dig-
ital camera. The affidavit asserted that the still camera should
be seized because Royster saw Skoog use the camera to take
photos of Royster and Kraus while they were in his office.
Those photos, in turn, “[we]re of additional evidentiary value
as they are independent evidence of our contact that day in
[plaintiff’s] office and may depict [plaintiff’s] computer and
2
OR. REV. STAT. § 165.543(1).
18626 SKOOG v. ROYSTER
digital [video] camera at his desk area.” Finally, the affidavit
described the protective armor, shells, and car door Royster
had seen, though it did not seek their seizure.

Royster and eleven other armed officers, some with guns
drawn, executed the warrant. Before the raid, the officers
received copies of the search warrant as well as an “Operation
Plan” that listed the armor, shells, and car door Royster had
seen in Skoog’s office and noted that Skoog had filed a law-
suit against the county. While officers seized Skoog’s equip-
ment and copied his hard drive, Skoog protested that they
were seizing attorney-client privileged communications. The
officers continued to seize the items. At some point, Royster
said that “people shouldn’t sue cops” or “it wasn’t right to sue
an officer.” The officers seized all the equipment listed on the
warrant, including the still camera.

The state refused to return the seized items for over a year
and has allegedly never returned several items, including two
tapes containing attorney-client privileged information
regarding Skoog’s state DUI defense and this case. The state
court judge found that officers had improperly reviewed privi-
leged communications found on the seized tapes and therefore
dismissed the DUI charges against Skoog that were pending
in state court. The judge also found that the search warrant
had been issued without probable cause.

Meanwhile, in federal court, Skoog amended his complaint
to add claims against Royster and the county from the search
of his office and the seizure of his equipment. Relevant to this
appeal, Skoog’s third amended complaint asserted that
Royster violated Skoog’s Fourth Amendment right to be free
of unlawful searches and seizures and that Royster obtained
and executed the warrant to retaliate against Skoog, in viola-
tion of the First Amendment, for filing his lawsuit. The dis-
trict court interpreted the retaliation claim as asserting that
Royster both obtained the warrant in retaliation for the lawsuit
and executed the warrant in a retaliatory manner. With respect
 SKOOG v. ROYSTER 18627
to the execution of the warrant, the court concluded that
Skoog had asserted both that the search was conducted in an
unnecessarily aggressive manner, “in that numerous armed
officers raided his office in search of evidence of a misdemea-
nor,” and that the search was overbroad, “in that the warrant
sought plaintiff’s still camera which had nothing to do with
the alleged interception offense.”

Royster moved for summary judgment on all of Skoog’s
claims, asserting qualified immunity. The district court
granted summary judgment to Royster as to the illegal search
and seizure claim and as to all but a small part of the retalia-
tion claim.

As to the illegal search and seizure claim, the court held
that a state court’s ruling finding no probable cause did not
collaterally estop Royster from asserting the existence of
probable cause for the warrant in this case. Skoog challenges
this conclusion on appeal. The court then held that a genuine
issue of material fact existed regarding whether there was
probable cause supporting the warrant as written. The warrant
alleged a violation of Oregon Revised Statute Sec-
tion 165.543, which bars the interception of oral communica-
tions about which an expectation of privacy exists. Because
no such expectation existed when Skoog taped Royster at the
Get & Go, the court held that probable cause to believe Skoog
had violated the statute did not exist.

The court then reasoned that a question of material fact
existed regarding whether a reasonable officer might have
thought that probable cause existed. Oregon Revised Statute
Section 165.540(1)(c) prohibits the recording of conversations
without first informing the participants. That statutory provi-
sion contains no requirement that the person being taped have
an expectation of privacy. The court concluded that Royster
“essentially made a citation error when he failed to cite that
statute and instead cited O[regon] R[evised] S[tatute]
§ 165.543.” Concluding that qualified immunity should pro-
18628 SKOOG v. ROYSTER
tect officers who make such errors, the court granted sum-
mary judgment to Royster on the illegal search and seizure
claim.

The court also granted summary judgment to Royster as to
all but a small portion of Skoog’s retaliation claim. The court
denied summary judgment to Royster on plaintiff’s claim that
the search was overbroad because it included the still camera.
Although Skoog’s complaint alleged overbreadth with respect
to additional articles that were seized in the search, the court
held that Skoog had abandoned his claims regarding those
additional articles by failing to address or even mention them
in his briefing. Thus, the court only addressed Skoog’s claim
regarding the still camera.

Finally, the district court denied Skoog’s motion for leave
to amend his complaint a fourth time to add various claims.

Three appeals are before the panel. In 04-35087, Royster
appeals the district court’s denial of summary judgment on
the part of the retaliation claim involving the still camera. In
04-35286, Skoog cross-appeals the court’s limitation of the
overbreadth portion of the retaliation claim solely to the still
camera. He also cross-appeals the court’s grant of summary
judgment to Royster on the search and seizure claim and the
court’s denial of his motion for leave to amend to add a
§ 1985 claim against Royster.

In 04-35568, Skoog directly appeals the district court’s
denial of leave to amend as to two different defendants: Depu-
ties Kraus and Thompson. Skoog asserts that the district court
erred when it denied his motion for leave to file a fourth
amended complaint to add claims against those defendants.

III. Jurisdiction

When denials of summary judgment based on qualified
immunity turn on legal questions, they are immediately appeal-
 SKOOG v. ROYSTER 18629
able.3 Thus, we have jurisdiction over Royster’s interlocutory
appeal of the district court’s denial of summary judgment on
Skoog’s retaliation claim involving the still camera (No. 04-
35087). We have jurisdiction under 28 U.S.C. § 1291 over
part of Skoog’s cross-appeal (No. 04-35286): his appeal of the
district court’s grant of summary judgment on the illegal
search and seizure claim. The district court determined that
the issue was inextricably intertwined with the retaliation
claim, certified it pursuant to Federal Rule of Civil Procedure
54(b), and entered a final judgment on the claim. We thus
have jurisdiction over the appeal of that final judgment.

We lack jurisdiction over the other issues in Skoog’s cross-
appeal (No. 04-35286): his assertion that the district court
erred when it limited the retaliation claim to the camera and
when it denied him to leave to amend his claims against
Royster. We also lack jurisdiction over the issues he attempts
to raise in his direct appeal (No. 04-35568): the district
court’s denial of his request for leave to file a fourth amended
complaint and the district court’s grant of summary judgment
to Clackamas County. The district court neither certified these
issues4 nor entered a final judgment regarding them. Accord-
ingly, we lack jurisdiction.5 Thus, we dismiss the part of
Skoog’s cross-appeal involving the district court’s limitation
of his retaliation claim to the still camera (No. 04-35286) and
his direct appeal (No. 04-35568).

IV. Standards of Review

We review de novo the district court’s partial denial of
Royster’s motion for summary judgment based on qualified
immunity with respect to the retaliation claim involving the
3
Mitchell v. Forsyth, 472 U.S. 511, 528 (1985).
4
Although the district court entered a second Rule 54(b) order, the order
was identical to the previous order and did not certify any new issues.
5
See, e.g., Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 993 (9th
Cir. 2004).
18630 SKOOG v. ROYSTER
still camera6 and its grant of summary judgment on Skoog’s
illegal search and seizure claim.7

V. Disussion

[1] Determining whether an official is entitled to summary
judgment based on the affirmative defense of qualified immu-
nity requires applying a three-part test.8 First, the court must
ask whether “[t]aken in the light most favorable to the party
asserting the injury, [ ] the facts alleged show the officer’s
conduct violated a constitutional right?”9 If the answer is no,
the officer is entitled to qualified immunity. If the answer is
yes, the court must proceed to the next question: whether the
right was clearly established at the time the officer acted.10
That is, “whether it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.”11 If
the answer is no, the officer is entitled to qualified immunity.
If the answer is yes, the court must answer the final question:
whether the officer could have believed, “reasonably but mis-
takenly . . . that his or her conduct did not violate a clearly
established constitutional right.”12 If the answer is yes, the
officer is entitled to qualified immunity. If the answer is no,
he is not.

In Saucier v. Katz,13 the Supreme Court emphasized the
importance of answering the first question — whether a com-
plaint states a constitutional claim — first. If courts fail to do
6
Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004).
7
Bingham v. City of Manhattan Beach, 341 F.3d 939, 945 (9th Cir.
2003).
8
See Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
9
Id. at 201.
10
Id. at 201-02.
11
Id. at 202.
12
Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001).
13
533 U.S. 194.
 SKOOG v. ROYSTER 18631
so, they will not “set forth principles which will become the
basis for a holding that a right is clearly established” and will
thus short-circuit “the process for the law’s elaboration from
case to case.”14 The Court also emphasized the importance, in
the second step, of defining the right with sufficient particulari-
ty.15 Determinations of whether a right is clearly established
must be “undertaken in light of the specific context of the
case, not as a broad general proposition.”16

With the Supreme Court’s instructions in Saucier in mind,
we now consider Royster’s claim of qualified immunity with
respect to his Fourth Amendment and then First Amendment
claims.

Fourth Amendment

Royster asserted qualified immunity in response to the
claim that he violated Skoog’s Fourth Amendment rights by
obtaining a warrant and seizing the still camera without prob-
able cause. Turning to the first prong of the qualified immu-
nity analysis, we must examine the facts pled in the light most
favorable to Skoog to determine if he has asserted a violation
of the Fourth Amendment. We conclude that he has not.

With respect to the warrant, Skoog argues that we need not
conduct our own inquiry regarding probable cause because an
Oregon court has already found that the probable cause did
not exist and collateral estoppel applies. The district court
held that the state court decision was not binding because it
occurred in the DUI case the state filed against Skoog, and
Royster lacked privity with the state. We agree.

[2] This court “give[s] to a state-court judgment the same
preclusive effect as would be given that judgment under the
14
Id. at 201.
15
Id. at 201-02.
16
Id. at 201.
18632 SKOOG v. ROYSTER
law of the State in which the judgment was rendered.”17 Thus,
to determine whether the state court’s holding applies to
Royster in this litigation, we turn to Oregon law. When, as in
this case, the party against whom collateral estoppel is
asserted was not a party to the first litigation, Oregon law
requires that he or she have been in privity with a party to that
litigation.18 To be in privity with a party, a person must have
been able to “direct the course of litigation” such that he or
she “had a fair and complete opportunity to litigate the issue
of liability” in the first litigation.19 Thus, Oregon law defines
privity quite narrowly, requiring actual control.20

[3] Skoog does not allege that Royster had actual control
over the prior litigation, and it is clear that Royster did not.
The district court thus correctly held that the state court’s con-
clusion regarding probable cause does not apply. We must
therefore conduct our own analysis.

[4] Probable cause supported the warrant if the affidavit,
read “in a non-technical, common sense, and realistic manner
. . . provided a substantial basis for concluding there was a
fair probability that . . . evidence of a crime [would] be found
in [Skoog’s office].”21 In his affidavit, Royster asserted that
Skoog had recorded him without first informing him. He also
asserted that he had personally observed evidence of the
recording — the video camera, the computer to which the
17
Coeur D’Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 688 (9th
Cir. 2004) (internal quotation marks omitted).
18
Rynearson v. Firestone Tire & Rubber Co., 607 P.2d 738, 739 (Or. Ct.
App. 1979).
19
Id. at 739-40.
20
Id. at 740 and n.1 (rejecting the argument that “when the issue itself
has been fully presented, advocated and adjudicated in a prior action, a
person’s interest has been adequately represented regardless of actual right
of control” and contrasting Oregon’s strict rule with the more liberal rules
of other states).
21
United States v. Hill, 55 F.3d 479, 480 (9th Cir. 1995) (internal quota-
tion marks and citations omitted).
 SKOOG v. ROYSTER 18633
video was transferred, and the video itself — in Skoog’s
office. Recording someone without first informing him vio-
lates Oregon Revised Statute Section 165.540(1)(c). The war-
rant therefore provided a substantial basis for the conclusion
that Skoog had violated Oregon law and that evidence of the
violation was in his office.

[5] Skoog makes much of the fact that Royster listed a dif-
ferent, and incorrect, statutory provision in his affidavit: Ore-
gon Revised Statute Section 165.543. As we held in United
States v. Meek,22 however, a “statutory variance in the affida-
vit is not fatal to the warrant’s validity” as long as “the affida-
vit established probable cause [ ] and the items sought under
the warrant corresponded to that probable cause determina-
tion.”23 The affidavit in this case satisfies that test. Accord-
ingly, the warrant was valid. Skoog has therefore not pled
facts that assert a violation of his Fourth Amendment rights
with respect to the warrant generally. We turn now to the
question of whether probable cause existed to seize the still
camera specifically.24

[6] Probable cause to seize the still camera existed if the
affidavit provided a “substantial basis” for believing that the
item constituted or contained evidence of the alleged crime.25
Although it is a close question, we conclude that the affidavit
did so. In the affidavit, Royster stated that Skoog took pic-
tures of Kraus and Royster. He then stated: “I know those
original photos are of additional evidentiary value as they are
independent evidence of our contact that day in that office and
may depict Mr. Skoog’s computer and digital [video] camera
22
366 F.3d 705 (9th Cir. 2004).
23
Id. at 713.
24
See United States v. Weber, 923 F.2d 1338, 1343 (9th Cir. 1990)
(explaining that probable cause must exist not only to support the warrant
but as to each item seized as well).
25
Id. (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (internal quo-
tation marks omitted).
18634 SKOOG v. ROYSTER
at his desk area in the background . . . .”26 Thus, Royster
asserted that he was certain Skoog took photos and that he
believed the photos might include depictions of the video
camera used to do the recording and the computer used to
store it. He therefore established that the camera was likely to
contain evidence, albeit indirect evidence, of the alleged
crime. This sufficed to establish probable cause.

[7] Because probable cause existed to support both the war-
rant and the seizure of the still camera, Skoog cannot plead
facts to support a violation of the Fourth Amendment. Our
qualified immunity inquiry therefore ends at the first prong
with respect to Skoog’s search and seizure claims and we
affirm the district court’s grant of summary judgment on
those claims.

First Amendment

Royster also asserted qualified immunity in his defense of
the claim that he retaliated against Skoog for filing this law-
suit against the County and another officer.27 Turning to the
first prong of the qualified immunity analysis, we must exam-
ine the facts pled in the light most favorable to Skoog to
determine if he has asserted a violation of the First Amend-
ment.

[8] To demonstrate retaliation in violation of the First
Amendment, Skoog must ultimately prove first that Royster
took action that “would chill or silence a person of ordinary
firmness from future First Amendment activities.”28 The par-
ties do not dispute that searching someone’s office and seiz-
26
Emphasis added.
27
Originally, this suit only included Clackamas County and the other
deputy. It was thus pending when Royster encountered Skoog. Skoog then
added Royster to the suit.
28
Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th
Cir. 1999).
 SKOOG v. ROYSTER 18635
ing materials can satisfy this first requirement. The second
requirement is the focus in this case. That requirement
involves causation. Skoog must ultimately prove that
Royster’s desire to cause the chilling effect was a but-for
cause of the defendant’s action.29 Whether a plaintiff must
plead the absence of probable cause in order to satisfy this
second requirement and state a claim for retaliation is an open
question in this circuit30 and the subject of a split in the other
circuits.31 After close review of the relevant precedent, we
conclude that a plaintiff need not plead the absence of proba-
ble cause in order to state a claim for retaliation.

When considering the qualified immunity defense in the
retaliation context, courts must strike an appropriate balance
between protecting First Amendment rights, on the one hand,
and protecting government officials from the disruption
caused by unfounded claims, on the other.32 Two recent
29
Id.; see Hartman v. Moore, 547 U.S. ___, 126 S.Ct. 1695, 1703-04
(2006).
30
Rulings on retaliation claims in this Circuit have all involved situa-
tions in which genuine issues of material fact existed regarding whether
an objective legal ground supported the allegedly retaliatory police action
or in which no objective legal ground existed. See, e.g., Duran v. City of
Douglas, 904 F.2d 1372, 1377 (9th Cir. 1990) (finding no legitimate
ground for detention); Mendocino Envtl. Ctr., 192 F.3d at 1292-94 (find-
ing genuine issues of material fact existed regarding probable cause for
Plaintiffs’ arrests).
31
Compare Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir. 2002); Kee-
nan v. Tejeda, 290 F.3d 252, 261-62 (5th Cir. 2002), Curley v. Village of
Suffern, 268 F.3d 65, 73 (2d Cir. 2001), and Smithson v. Aldrich, 235 F.3d
1058, 1063 (8th Cir. 2000) (holding that an absence of probable cause was
required in claims of retaliatory arrest); with Greene v. Barber, 310 F.3d
889, 895 (6th Cir. 2002) and DeLoach v. Bevers, 922 F.2d 618, 620 (10th
Cir. 1990) (holding that a claim for retaliatory arrest could be made even
if probable cause existed for the arrest).
32
Hartman, 126 S. Ct. at 1702 and Crawford-El v. Britton, 523 U.S.
574, 584-85 (1998) (noting that retaliation claims, because they involve
assertions of officials’ states of mind, are “easy to allege and hard to dis-
prove”) (internal quotation marks omitted).
18636 SKOOG v. ROYSTER
Supreme Court cases provide guidance regarding this impor-
tant balance.

In Crawford-El v. Britton,33 the Supreme Court rejected a
rule adopted by the District of Columbia Circuit that required
retaliation plaintiffs to offer “clear and convincing evidence
on the [defendant’s] state-of-mind [ ] at summary judgment
and trial.”34 The rule unfairly “place[d] a thumb on the defen-
dant’s side of the scales,”35 the Court explained, by increasing
the requirements of the cause of action itself.36 The require-
ments of a cause of action should not be confused with the
doctrine designed to protect government officials: the doctrine
of qualified immunity.37 It is to that doctrine that courts
should turn to protect the “strong public interest in protecting
public officials from the costs associated with the defense of
damages actions,” the Court explained.38

In his dissent in Crawford-El, Justice Scalia proposed an
objective test under which defendants would be entitled to
judgment on retaliation claims, regardless of their subjective
intent, if some “objectively valid” legal ground existed for
their action.39 Under Justice Scalia’s proposal, presumably no
retaliation claim could be maintained against an arresting offi-
cer, regardless of his subjective reasons for the arrest, if prob-
able cause existed for the arrest.

The majority of the court rejected Justice Scalia’s “objec-
33
523 U.S. 574.
34
Id. at 583, 593-94.
35
Id. at 593.
36
Id. at 591.
37
Id. at 589 (noting that the Supreme Court “has never indicated that
qualified immunity is relevant to the existence of the plaintiff’s cause of
action”).
38
Id. at 590.
39
Id. at 612 (Scalia, J., dissenting).
 SKOOG v. ROYSTER 18637
tive test” as “unprecedented.”40 The doctrine of qualified
immunity already incorporates objective standards, the Court
explained. In the second step, it requires questioning “the
state of the law at the time of the challenged conduct — [a]
question[ ] that normally can be resolved on summary judg-
ment.”41 In the third step, it focuses “on the objective legal
reasonableness of an official’s acts” as well.42 Thus, the doc-
trine incorporates objective standards and protects officials,
but at less cost to plaintiffs and to the First Amendment than
Justice Scalia’s test.43

[9] In Hartman v. Moore,44 the Supreme Court considered
whether the absence of probable cause should be an element
of a particular subcategory of retaliation claims: retaliatory
prosecution claims. The Court ultimately decided that the
absence of probable cause should be an element of that sub-
category. Although this outcome might seem to conflict with
Crawford-El, the Supreme Court’s reasoning brings it into
harmony with that earlier decision.

In Hartman, the Supreme Court was careful to explain that
the practical problems of establishing causation in retaliatory
prosecution actions motivated its decision, not any need to
provide additional protection to government officials.45
According to the Court, it makes sense to require the absence
of probable cause in retaliatory prosecution claims because
several attributes of such claims make doing so necessary and
not very onerous.

The requirement of pleading and proving no probable cause
40
Id. at 594.
41
Id. at 590.
42
Id.
43
Id. at 592-94.
44
126 S.Ct. 1695.
45
Id. at 1702-04.
18638 SKOOG v. ROYSTER
will produce little hardship on plaintiffs litigating retaliatory
prosecution claims, the Court explained. Evidence proving or
disproving the existence of probable cause is readily available
at even the earliest stages in these cases.46 In Hartman, for
example, the prosecutor had presented evidence to the grand
jury in order to persuade it to indict.47 Thus, the evidence nec-
essary to determine the existence of probable cause was read-
ily available at the earliest stages of the litigation. The added
burden of pleading and proving the absence of probable cause
in retaliatory prosecution claims, then, should not be onerous.

[10] Pleading and proving the absence of probable cause is
necessary in retaliatory prosecution cases, the Court reasoned,
because of the complexity of causation in such cases.48 Retal-
iatory prosecution claims are really “for successful retaliatory
inducement to prosecute” because they can only be main-
tained against officials, such as investigators, who may per-
suade prosecutors to act.49 To prove causation, then, a plaintiff
must show not only that the defendant official harbored retal-
iatory animus and thus sought to induce prosecution, but also
that the official succeeded — that is, that the “prosecutor [ ]
would not have pressed charges otherwise.”50 A plaintiff’s
task is particularly difficult, the Court noted, due to the “long-
standing presumption of regularity accorded to prosecutorial
decisionmaking” which courts may not “lightly discard.”51 To
justify suspending the presumption, a plaintiff must show “a
retaliatory motive on the part of an official urging prosecution
combined with an absence of probable cause supporting the
46
Id. at 1704 (noting that, in such cases “there will always be a distinct
body of highly valuable circumstantial evidence available and apt to prove
or disprove retaliatory causation, namely evidence showing whether there
was or was not probable cause to bring the criminal charge”).
47
Id. at 1700.
48
Id. at 1705-06.
49
Id. at 1704-05 (emphasis added).
50
Id. at 1705.
51
Id.
 SKOOG v. ROYSTER 18639
prosecutor’s decision to go forward.”52 The requirement of no
probable cause is necessary “to bridge the gap between the
nonprosecuting government agent’s motive and the prosecu-
tor’s action, and to address the presumption of prosecutorial
regularity.”53 Thus, differences between retaliatory prosecu-
tion claims and other retaliation claims justified and necessi-
tated the additional requirement in retaliatory prosecution
claims.

[11] We conclude that the retaliation claim in this case does
not involve multi-layered causation as did the claim in Hart-
man. To be sure, one aspect of the situation in this case is
somewhat analagous to that in Hartman — a second party
(the magistrate judge in this case; the prosecutor in Hartman)
found probable cause based on the defendant’s affidavit and
the evidence that was used is readily available. However, an
important fact distinguishes the situation in this case from that
in Hartman: Royster retained control over the allegedly retal-
iatory action (the search and seizure) after the second party
(the magistrate judge) found probable cause. Causation thus
turns on his actions alone and no “bridge” between motive
and action is necessary. Thus, the rationale for requiring the
pleading of no probable cause in Hartman is absent here. This
case presents an “ordinary” retaliation claim.

Our conclusion is in accord with our precedent. Although
the Ninth Circuit has never decided this precise issue, we did
remark, in Duran v. City of Douglas,54 that the viability of the
Fourth Amendment claim rendered the First Amendment
claim “redundant.”55 We interpret this statement as a sugges-
tion that, were the Fourth Amendment claim invalid, the First
Amendment claim would not be redundant and would still be
52
Id. at 1706.
53
Id.
54
904 F.2d 1372.
55
Id. at 1378 & n.5.
18640 SKOOG v. ROYSTER
valid. Our decision today comports with that earlier sugges-
tion.

[12] We have concluded that Skoog need not have pled the
absence of probable cause in order to state a claim for retalia-
tion. Our earlier conclusion that probable cause existed for the
still camera’s seizure therefore does not preclude his state-
ment of a claim. Moreover, he has stated all the elements nec-
essary for a retaliation claim. Thus, the first prong of the
qualified immunity analysis does not end our inquiry and we
must proceed to the second.

The second prong requires us to determine whether the
right, defined according to the actual facts of the case, was
clearly established at the time of the search.56 In this case, we
define the right as the right of an individual to be free of
police action motivated by retaliatory animus but for which
there was probable cause.

[13] At the time of the search, the right we have just
defined was far from clearly established in this Circuit or in
the nation.57 We have decided only today that a right exists to
be free of police action for which retaliation is a but-for cause
even if probable cause exists for that action. At some future
point, this right will become clearly established in this Circuit.
At the time Royster acted, however, the law was far from clear.58
Accordingly, even assuming Royster’s primary motivation for
seizing Skoog’s still camera was to retaliate for Skoog’s exer-
cise of his First Amendment rights, he violated no clearly
56
See Saucier, 533 U.S. at 202.
57
Compare Dahl, 312 F.3d at 1236, Keenan, 290 F.3d at 261-62; Cur-
ley, 268 F.3d at 73, and Smithson, 235 F.3d at 1063 (holding that an
absence of probable cause was required in claims of retaliatory arrest);
with Greene, 310 F.3d at 895 and DeLoach, 922 F.2d at 620 (holding that
a claim for retaliatory arrest could be made even if probable cause existed
for the arrest).
58
Id.
 SKOOG v. ROYSTER 18641
established law because probable cause existed for the search.
Royster is thus entitled to qualified immunity under the sec-
ond prong of our qualified immunity analysis.59 We therefore
reverse the district court’s denial of summary judgment on
Skoog’s claim for retaliation.

VI. Conclusion

We lack jurisdiction over Skoog’s direct appeal (No. 04-
35568) and over that part of his cross-appeal (No. 04-35286)
involving the district court’s limitation of the retaliation claim
to the still camera. We have jurisdiction over the remainder
of Skoog’s cross-appeal (No. 04-35286) and over Royster’s
interlocutory appeal (No. 04-35087). We affirm the district
court’s grant of summary judgment based on qualified immu-
nity on the search and seizure claim and reverse its denial of
summary judgment based on qualified immunity with respect
to the retaliation claim.

Appeal No. 04-35568 is DISMISSED; Appeal No. 04-
35286 is DISMISSED IN PART AND AFFIRMED IN
PART; Appeal No. 04-35087 is REVERSED, and this case is
REMANDED FOR FURTHER PROCEEDINGS IN
ACCORD WITH THIS OPINION. COSTS TO DEFEN-
DANTS.

59
Saucier, 533 U.S. at 201-02.