                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 3 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

REBECKA JACKSON-MOESER,                         No.    17-56488

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-08733-SVW-JPR
 v.

JUNO ARMSTRONG, a California                    MEMORANDUM*
Highway Patrol officer, individually,

                Defendant-Appellee.

                   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.
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
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.




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