                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 14 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANTHONY BEASLEY,                                 No. 11-35591

              Plaintiff - Appellant,             DC No. 6:09 cv-6256 AA

  v.
                                                 MEMORANDUM *
CITY OF KEIZER; JOHN TEAGUE,
Captain; JEFF KUHNS, Captain;
TIMOTHY S. LATHROP, Detective;
JOHN TRONCOSO, Sgt.; LORI EVANS;
KATIE SUVER,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                       Argued and Submitted March 4, 2013
                                Portland, Oregon

Before:       TASHIMA, CLIFTON, and BEA, Circuit Judges.

       Plaintiff Anthony Beasley appeals from the district court’s grant of summary

judgment in favor of Defendants. Beasley asserts claims under 42 U.S.C. § 1983



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
against Deputy District Attorneys Lori Evans and Katie Suver of Marion County

(together, the “District Attorneys”), and against Officer Timothy Lathrop, Captain

John Teague, Captain Jeff Kuhns, and Sergeant John Troncoso of the Keizer Police

Department (collectively, the “Officers”). Beasley alleges Fourth Amendment

violations stemming from the 2007 search of his residence and his subsequent

arrest, which arose in connection with his undisputed production of hashish oil.

The district court granted summary judgment on the ground that, even if there was

no probable cause to believe that Beasley had violated state law, there was no

Fourth Amendment violation because probable cause existed that Beasley had

violated the federal Controlled Substances Act, 21 U.S.C. § 801 et seq. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     The relevant Oregon statutes and case law establish that there was no

probable cause of a state law violation.1 Beasley was registered to grow medical

marijuana in his home pursuant to the Oregon Medical Marijuana Act (“OMMA”).

Or. Rev. Stat. § 475.302 provides that, for purposes of OMMA, “marijuana” has

the meaning given that term in Or. Rev. Stat. § 475.005. See Or. Rev. Stat.

§ 475.302(6). In State v. Ness, 635 P.2d 1025, 1029-30 (Or. Ct. App. 1981), the



      1
             The District Attorneys concede this issue on appeal, but the Officers
do not.

                                        -2-
Oregon Court of Appeals held that marijuana, hashish, and hashish oil all fall

under § 475.005’s definition of “marijuana.” See also State v. Hasselback, 670

P.2d 632, 632 (Or. Ct. App. 1983). Thus, OMMA’s protections for marijuana

apply, by definition, to hashish oil.

      Provided that certain conditions are met,2 OMMA exempts licensed persons

“from the criminal laws of the state for possession, delivery or production of

marijuana.” Or. Rev. Stat. § 475.309(1). The Oregon statute relied upon by the

District Attorneys and the Officers at the time of the search and arrest, which

prohibits the manufacturing of controlled substances within 1,000 of a school, falls

within the scope of this exemption. See Or. Rev. Stat. § 475.904. As such, there

was no basis for state criminal liability.

      2.     Beasley’s Fourth Amendment claims nevertheless fail because both

the Officers and the District Attorneys are entitled to qualified immunity.

Qualified immunity shields government officials from civil liability unless a

plaintiff demonstrates: “(1) that the official violated a statutory or constitutional

right, and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). Here, we grant


      2
            There is no suggestion that Beasley was not in conformity these
required conditions. See Or. Rev. Stat. § 475.309(1)(a)-(b); see also Or. Rev. Stat.
§ 475.320.

                                             -3-
qualified immunity under the latter prong of this framework without the need to

decide whether there was an underlying constitutional violation. See Pearson v.

Callahan, 555 U.S. 223, 227 (2009) (permitting inquiry into either prong first).

      Even assuming, arguendo, that our decision in United States v. $186,416.00

in U.S. Currency, 590 F.3d 942 (9th Cir. 2010), supported Beasley’s constitutional

claim, that decision postdated the events in question by several years. Beasley is

unable to point to any judicial opinion prior to October 2007 holding that a search

conducted by local officials violates the Fourth Amendment when those officials

do not have probable cause of a state violation but do have probable cause of a

federal violation. Because existing precedent hardly “placed the statutory or

constitutional question beyond debate,” al-Kidd, 131 S. Ct. at 2083, Beasley

cannot demonstrate the violation of a clearly established right. Thus, both the

District Attorneys and the Officers are entitled to qualified immunity.

      The Officers are entitled to qualified immunity on the additional ground that

they reasonably relied on the District Attorneys’ legal advice. Although reliance

on a prosecutor’s legal advice “will not automatically insulate an officer from

liability, it goes far to establish qualified immunity.” Ewing v. City of Stockton,

588 F.3d 1218, 1231 (9th Cir. 2009) (internal quotation marks omitted). In the

instant case, the District Attorneys rendered advice on a purely legal question, the


                                          -4-
answer for which required a proper reading of a complex statutory scheme and

applicable case law. Indeed, Officer Lathrop proceeded precisely as one would

want an officer to proceed under the circumstances – unsure of a novel legal

question, he consulted with a prosecutor for guidance. Thus, the Officers were not

“plainly incompetent,” nor did they “knowingly violate the law,” and qualified

immunity is appropriate. al-Kidd, 131 S. Ct. at 2085 (internal quotation marks

omitted).

      The judgment of the district court is AFFIRMED.




                                        -5-
