FILED
NOT FOR PUBLICATION
OCT 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSSELL P. BARTLETT, No. 16-35631
Plaintiff-Appellant, D.C. No. 4:15-cv-00004-SLG
v.
MEMORANDUM*
LUIS A. NIEVES, in his personal capacity
and BRYCE L. WEIGHT, in his personal
capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted October 6, 2017
Seattle, Washington
Before: WARDLAW, CLIFTON, and OWENS, Circuit Judges.
Plaintiff-Appellant Russell P. Bartlett appeals the district court’s grant of
summary judgment to Alaska state trooper Defendants-Appellees Luis A. Nieves
and Bryce L. Weight on his § 1983 claims of false arrest, excessive force,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
malicious prosecution, and retaliatory arrest. We review the district court’s grant
of summary judgment de novo. Garcia v. Cty. of Merced, 639 F.3d 1206, 1208
(9th Cir. 2011). We affirm in part and reverse in part.
1. We affirm the district court’s grant of summary judgment to the
defendants on plaintiff’s false arrest claim on the ground of qualified immunity. A
two-part test applies to qualified immunity claims. Construing the facts in the light
most favorable to the party alleging injury, the court must evaluate: 1) whether the
officer violated a constitutional right; and 2) whether that right was clearly
established at the time of the officer’s actions. See Lal v. California, 746 F.3d 112,
116 (9th Cir. 2014) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
Adopting Bartlett’s version of the facts, we agree with the district court that
defendants had at least arguable probable cause to arrest Bartlett for harassment,
disorderly conduct, resisting arrest, or assault under Alaska law. When Sergeant
Nieves initiated Bartlett’s arrest, he knew that Bartlett had been drinking, and he
observed Bartlett speaking in a loud voice and standing close to Trooper Weight.
He also saw Trooper Weight push Bartlett back. Although Bartlett may have his
own explanations for his actions, these explanations were not known to Sergeant
Nieves; the test is whether “the information the officer had at the time of making
the arrest” gave rise to probable cause. John v. City of El Monte, 515 F.3d 936,
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940 (9th Cir. 2008). We agree with the district court that it did; a reasonable
officer in Sergeant Nieves’s position could have concluded that Bartlett stood close
to Trooper Weight and spoke loudly in order to “challenge” him, provoking
Trooper Weight to push him back. See Alaska Stat. § 11.61.120(a)(1). Therefore,
we affirm the district court’s grant of summary judgment to the troopers on
Bartlett’s false arrest claim.
2. We affirm the district court’s grant of summary judgment to the troopers
on Bartlett’s excessive force claim on the ground of qualified immunity. In
particular, Bartlett has failed to point to a case that clearly establishes that the
troopers’ limited use of force to effect his arrest was unconstitutional. Bartlett’s
references to Young v. County of Los Angeles, 655 F.3d 1156 (9th Cir. 2011), and
Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007), are unavailing. In
the present case, the troopers reacted quickly to a fluid situation and were faced
with the undisputedly challenging circumstances of Arctic Man. These
circumstances were not present in Young and Blankenhorn. Because the second
prong of the qualified immunity test requires “a case where an officer acting under
similar circumstances . . . was held to have violated the Fourth Amendment,” and
we are not aware of any such case, we agree with the district court that the officers
are entitled to qualified immunity on Bartlett’s excessive force claim. See White v.
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Pauly, 137 S. Ct. 548, 552 (2017) (instructing that clearly established law must be
“particularized” to the facts of the case).
3. We also affirm the district court’s grant of summary judgment on
Bartlett’s malicious prosecution claim. To prevail on his malicious prosecution
claim, Bartlett must show that the troopers prosecuted him: 1) with malice; 2)
without probable cause; and 3) for the purpose of denying him a specific
constitutional right. Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.
1995). Because we conclude that the officers had probable cause to arrest Bartlett,
we affirm the grant of summary judgment to the troopers on this claim.
4. We reverse the district court’s dismissal of Bartlett’s retaliatory arrest
claim. The district court dismissed this claim on the ground that the troopers had
probable cause to arrest Bartlett. However, we have previously held that a plaintiff
can prevail on a retaliatory arrest claim even if the officers had probable cause to
arrest. See Ford v. City of Yakima, 706 F.3d 1188, 1195–96 (9th Cir. 2013) “[A]n
individual has a right to be free from retaliatory police action, even if probable
cause existed for that action.”).
The Supreme Court’s decision in Reichle v. Howards, 566 U.S. 658 (2012),
does not foreclose this result. In Reichle, the Court noted that it had not previously
recognized a First Amendment right to be free from a retaliatory arrest supported
4
by probable cause, but did not conclude that a plaintiff must show lack of probable
cause to make a retaliatory arrest claim. Id. at 664–65. Indeed, the Court
emphasized that the rule that it announced in Hartman v. Moore, 547 U.S. 250
(2006), which held that a plaintiff cannot make a retaliatory prosecution claim if
the charges were supported by probable cause, does not necessarily extend to
retaliatory arrests. Reichle, 566 U.S. at 666–70.
We have since clarified that in the Ninth Circuit, a plaintiff can make a
retaliatory arrest claim even if the arresting officers had probable cause. When the
troopers arrested Bartlett at Arctic Man in 2014, it was clearly established that “an
individual has a right to be free from retaliatory police action, even if probable
cause existed for that action.” Ford, 706 F.3d at 1195–96. Therefore, the district
court erred in concluding that Bartlett’s retaliatory arrest claim fails simply
because the troopers had probable cause to arrest him.
Bartlett has potentially established a claim of retaliatory arrest in violation of
the First Amendment because 1) he has “demonstrate[d] that the officers’ conduct
would chill a person of ordinary firmness from future First Amendment activity”
and 2) the evidence that he has advanced would enable him “ultimately to prove
that the officers’ desire to chill his speech was a but-for cause of their allegedly
unlawful conduct.” Id. at 1193.
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Regarding the first prong of the test, we have held that an arrest in retaliation
for the exercise of free speech is sufficient to chill speech. Lacey v. Maricopa Cty.,
693 F.3d 896, 917 (9th Cir. 2012). Regarding the second prong, we have held that,
once a plaintiff has provided “sufficient evidence for a jury to find that the
officers’ retaliatory motive was a but-for cause of their action,” “the issue of
causation ultimately should be determined by a trier of fact.” Ford, 706 F.3d at
1194. Construing the facts in the light most favorable to Bartlett, he has advanced
sufficient evidence to meet this standard. Most importantly, Bartlett alleged that
Sergeant Nieves said “bet you wish you would have talked to me now” after his
arrest. This statement, if true, could enable a reasonable jury to find that Sergeant
Nieves arrested Bartlett in retaliation for his refusal to answer Sergeant Nieves’s
questions earlier in the evening. We therefore conclude that the district court erred
in granting summary judgment for the troopers on Bartlett’s retaliatory arrest
claim.
Each party to bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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