                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


EDDIE L. FORD ,                               No. 11-35319
                  Plaintiff-Appellant,
                                                D.C. No.
                   v.                       2:09-CV-03108-
                                                  LRS
CITY OF YAKIMA ; N. WENTZ,
Lieutenant; R. URLACHER, Officer,
             Defendants-Appellees.             OPINION


      Appeal from the United States District Court
        for the Eastern District of Washington
       Lonny R. Suko, District Judge, Presiding

                Argued and Submitted
         April 11, 2012—Seattle, Washington

                   Filed February 8, 2013

   Before: Proctor Hug, Jr., Dorothy W. Nelson, and
        Consuelo M. Callahan, Circuit Judges.

                    Per Curiam Opinion;
                  Dissent by Judge Callahan
2                   FORD V . CITY OF YAKIMA

                           SUMMARY*


                            Civil Rights

    The panel reversed the district court’s summary judgment
in favor of the City of Yakima and two of its police officers
in a 42 U.S.C. § 1983 action in which plaintiff alleged that
the officers retaliated against him for exercising his First
Amendment right to freedom of speech.

     The panel held that plaintiff alleged facts, that officers
booked and jailed him in retaliation for his protected speech,
which established a violation of his clearly established First
Amendment right to be free from police action motivated by
retaliatory animus, even if probable cause existed for the
officers initially to arrest plaintiff for violating the City noise
ordinance. The panel concluded that at the time of plaintiff’s
arrest, a reasonable police officer would have understood that
he could not exercise his discretion to book an individual in
retaliation for that individual’s First Amendment activity. The
panel therefore determined that officers were not entitled to
qualified immunity, and plaintiff’s claims should proceed to
trial.

    Dissenting, Judge Callahan stated that the majority’s
opinion failed to follow Supreme Court guidance in
determining first that the police officers’ decision to book
plaintiff instead of issuing a ticket violated his constitutional
rights, and second that plaintiff’s “right” was clearly
established.

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 FORD V . CITY OF YAKIMA                     3

                         COUNSEL

William D. Pickett (argued), Law Office of William D.
Pickett, Yakima, Washington, for Plaintiff-Appellant.

Thomas P. Miller (argued), Robert L. Christie, Christie Law
Group, PLLC, Seattle, Washington, for Defendants-
Appellees.


                         OPINION

PER CURIAM:

    Eddie Ford (“Ford”) appeals from the grant of summary
judgment in favor of the City of Yakima and two of its police
officers, Ryan Urlacher and Nolan Wentz (“Appellees”), in
his 42 U.S.C. § 1983 action alleging First Amendment
retaliation.

    Ford has alleged facts that would establish a violation of
his clearly established First Amendment right to be free from
police action motivated by retaliatory animus, even if
probable cause existed for that action. See Skoog v. County
of Clackamas, 469 F.3d 1221, 1235 (9th Cir. 2006). Because
the officers are not entitled to qualified immunity, we reverse
and remand for trial.

                       I. Background

     Shortly after midnight on July 17, 2007, Ford was
listening to music while driving to work when he noticed a
police car approaching rapidly from behind him. Ford
changed lanes twice “to get out of [the police car’s] way.”
4                 FORD V . CITY OF YAKIMA

The patrol car followed him each time. While stopped at a
red light, Ford stepped out of his car abruptly and asked
Urlacher, the officer driving the police car, why he was being
followed so closely. Urlacher felt “concerned for [his]
safety,” and told Ford to get back into the car and “go.”
Then, as both parties drove through the intersection, Urlacher
turned on his flashing lights and initiated a traffic stop.

    Ford turned into a nearby parking area and emerged from
his car yelling. Urlacher, armed with a taser gun, approached
Ford and asked for his license and registration. Urlacher
perceived the situation as “very dangerous.” As Ford
retrieved the requested items, he stated that he thought the
traffic stop was racially motivated. Urlacher warned Ford to
stay in the car or risk being taken to jail. Ford obeyed.

    Urlacher then returned to his patrol car and checked
Ford’s driver’s license for warrants. While doing so, he told
another officer, “I think I’m going to arrest him for [a] city
noise ordinance violation right now. He might only get a
ticket if he cooperates. But with that attitude, he’s going to
get cuffed.” The officer then returned to Ford’s car and, with
the assistance of a backup officer, handcuffed Ford.

    An exchange then ensued in which Urlacher stated: 1)
“Stop running the mouth and listen”; 2) “If you talk over me,
you are going to go to jail, sir. Do not talk over me”; 3) “If
you cooperate, I may let you go with a ticket today. If you
run your mouth, I will book you in jail for it. Yes, I will, and
I will tow your car”; 4) “If you cooperate and shut your
mouth, I’ll give you a ticket and you can go.”

    Ford responded with disbelief to the prospect of being
taken to jail for a noise violation, but after repeated threats
                 FORD V . CITY OF YAKIMA                     5

that he would be jailed if he kept talking, Ford stopped
yelling and answered the officer’s questions with responses
such as “Uh-huh” and “You do what you want.” When Ford
expressed concern about getting to work, Urlacher replied:

       Well that’s not going to happen if you
       don’t—if you keep running your mouth.
       Okay? If you have diarrhea of the mouth, you
       will go to jail. If you cooperate with us and
       treat us like human beings, we will treat you
       like a human being. Do you understand me?

Ford said nothing further.

     Once Ford was in the back of Urlacher’s patrol car and
out of earshot, Urlacher told a backup officer, “I don’t know
if I’m going to book him yet. I’ll see if he’s going to shut
up.” At that point, Lieutenant Wentz arrived on the scene.
Urlacher recounted the incident to Wentz and explained, “So
he’s under arrest for the city ordinance right now. If he shuts
up, I’ll let him go with a ticket.” Wentz stated that Ford had
a “hot head” and was “getting worse over time.” Wentz
advised, “I would not just write [Ford] a ticket and let him go
. . . I’d sign his ass up.” Urlacher agreed and took Ford to
jail.

    When driving to the booking facility, Ford asked why he
was being taken to jail. Urlacher told him that it was because
he was playing his music too loud and because he “acted a
fool.” Urlacher elaborated:

       If you would have acted like a human being
       towards me, I would have treated you like a
       human being. I probably would have, you
6                 FORD V . CITY OF YAKIMA

       know — but you talked yourself into this on
       video. It’s all well recorded.

Ford invoked his right to free speech. Urlacher replied:

       I have the freedom to take you to jail, too.
       And that’s what’s going to happen. . . . You
       exercise [your freedom of speech] all you
       want, okay? If you just cooperate and treat
       the police like humans, we’ll treat you like
       that. But when you act like that, like an
       animal, you’ve got to get treated that way, you
       know.

       You’re going to jail for numerous reasons.
       The crime you’re going to jail for is the city
       noise ordinance. A lot of times we tend to
       cite and release people for that or we give
       warnings. However . . . you acted a fool . . .
       and we have discretion whether we can book
       or release you. You talked yourself—your
       mouth and your attitude talked you into jail.
       Yes, it did.

    Urlacher later testified that he booked Ford (1) because he
violated the city noise ordinance, which gives him discretion
to book a person “if I feel like it,” and (2) because he “failed
to listen[,] . . . failed to act civil, . . . failed to take
responsibility for his actions, [and because of] his rageful
[and disrespectful] behavior towards the law enforcement,”
which put public safety at risk.
                  FORD V . CITY OF YAKIMA                      7

    Ford was prosecuted for violating the City of Yakima’s
noise ordinance. Yakima Municipal Code 6.04.180. The
municipal court acquitted Ford of the charged offense.

    Ford filed an action for civil damages against Appellees
pursuant to 42 U.S.C. § 1983. Ford alleged, inter alia, that
the police officers retaliated against him for exercising his
First Amendment right to freedom of speech. Appellees
moved for summary judgment on all claims. Ford moved for
partial summary judgment against the officers, alleging that
qualified immunity did not shield them from liability.

    The district court granted summary judgment to
Appellees and denied Ford’s motion for partial summary
judgment. In so doing, the court found that the officers did
not retaliate against Ford in violation of the First Amendment
because they had probable cause to arrest Ford for violating
the city noise ordinance. In addition, “the totality of the
circumstances, including the manner in which [Ford]
confronted Officer Urlacher and delivered his criticism, and
not merely the criticism itself, led Officer Urlacher to
reasonably conclude booking was warranted.” The district
court determined that “no rational jury could conclude
Plaintiff’s exercise of his right of free speech was the ‘but for
cause’ of his booking.” Because the court ruled as a matter
of law that there was no constitutional violation, it did not
reach the issue of qualified immunity.

    Ford appeals the district court’s grant of summary
judgment in favor of the officers on his First Amendment
claim.
8                 FORD V . CITY OF YAKIMA

         II. Jurisdiction and Standard of Review

    We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo a district court’s ruling on cross-motions for
summary judgment, including rulings based on qualified
immunity. CRM Collateral II, Inc. v. TriCounty Metro.
Transp. Dist., 669 F.3d 963, 968 (9th Cir. 2012). “We view
the evidence in the light most favorable to the nonmoving
party and determine whether there are any genuine issues of
material fact and whether the district court correctly applied
the relevant substantive law.” Id. at 968 (internal quotation
marks and citation omitted). The parties’ assertions that there
are no disputed issues “does not vitiate the court’s
responsibility to determine whether disputed issues of
material fact are present. A summary judgment cannot be
granted if a genuine issue as to any material fact exists.” Fair
Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th
Cir. 2001) (quoting United States v. Fred A. Arnold, Inc.,
573 F.2d 605, 606 (9th Cir.1978)).

                       III. Discussion

    Qualified immunity protects officers from liability for
civil damages where their alleged unconstitutional conduct
does not violate a clearly established right. Hope v. Pelzer,
536 U.S. 730, 739 (2002). “Qualified immunity balances two
important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009).

    An officer is entitled to qualified immunity unless (1)
facts viewed in the light most favorable to the injured party
                  FORD V . CITY OF YAKIMA                      9

show that the officer violated a constitutional right and (2) the
right was clearly established at the time of the alleged
misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001),
modified by Pearson, 555 U.S. at 233.

                A. Constitutional Violation

     The first issue is whether the facts viewed in the light
most favorable to Ford show a violation of his rights. “[T]he
First Amendment protects a significant amount of verbal
criticism and challenge directed at police officers.” City of
Houston v. Hill, 482 U.S. 451, 461 (1987). While an
individual’s critical comments may be “provocative and
challenging,” they are “nevertheless protected against
censorship or punishment, unless shown likely to produce a
clear and present danger of a serious substantive evil that
rises far above public inconvenience, annoyance, or unrest.”
Id. (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4
(1949)). In fact, “[t]he freedom of individuals verbally to
oppose or challenge police action without thereby risking
arrest is one of the principal characteristics by which we
distinguish a free nation from a police state.” Id. at 462–63.

    In this Circuit, an individual has a right “to be free from
police action motivated by retaliatory animus but for which
there was probable cause.” Skoog, 469 F.3d at 1235. That
right was violated when the officers booked and jailed Ford
in retaliation for his protected speech, even though probable
cause existed for his initial arrest. Ford’s criticism of the
police for what he perceived to be an unlawful and racially
motivated traffic stop falls “squarely within the protective
umbrella of the First Amendment and any action to punish or
deter such speech . . . is categorically prohibited by the
10                   FORD V . CITY OF YAKIMA

Constitution.” Duran v. City of Douglas, 904 F.2d 1372,
1378 (9th Cir. 1990).1

    In order to establish a claim of retaliation in violation of
the First Amendment, Ford’s evidence must demonstrate that
the officers’ conduct would chill a person of ordinary
firmness from future First Amendment activity. See Skoog,
469 F.3d at 1231–32. In addition, the evidence must enable
Ford ultimately to prove that the officers’ desire to chill his
speech was a but-for cause of their allegedly unlawful
conduct. See Lacey v. Maricopa County, 693 F.3d 896,
916–17 (9th Cir. 2012) (en banc).


  1
    The dissent premises its view in part on the argument that individuals
detained by the police enjoy less First Amendment protection than
nondetainees. Dissent at 19–20 (citing cases that discuss the diminished
constitutional rights of prison inmates and jailed arrestees). Even if we
believed that the law supported such a view, which we empathically do
not, the facts here make it doubtful that Ford’s ostensibly attenuated rights
would be relevant to the officers’ liability. Although the dissent does not
describe with specificity which constitutional rights are abrogated and
which are retained when the police detain someone on a public street, it
offers some hints. For instance, the dissent suggests that the detainee’s
rights might need to give way to “the officer’s need to determine [the
detainee’s] dangerousness and proclivity to commit further breaches of the
peace.” Dissent at 21. But nothing that Ford said following his detention
gave any indication that he posed a danger to himself, the officers or
property, or that he was likely to further disturb the peace. The dissent
additionally proposes that the First Amendment’s scope is narrowed, in
the context of a detention, by the fact that officers are “required to
consider some statements by a detained person such as those relating to
medical condition, health, fear of assault from others, and threats.”
Dissent at 33. The record makes plain, however, that nothing Ford said
related to any of these things. And to the extent that there are any
disputed issues of fact regarding the content of Ford’s statements, or the
relationship between those statements and the officers’ alleged retaliatory
animus, their resolution is for the trier of fact.
                  FORD V . CITY OF YAKIMA                     11

                      1. Chilled Speech

    Ford has set forth sufficient evidence to demonstrate that
the officer’s “acts would chill or silence a person of ordinary
firmness from future First Amendment activities.”
Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283,
1300 (9th Cir. 1999) (citation omitted). He has alleged that
he was booked and jailed in retaliation for his speech. This
Court has recognized that a retaliatory police action such as
an arrest or search and seizure would chill a person of
ordinary firmness from engaging in future First Amendment
activity. See Lacey, 693 F.3d at 917 (retaliatory arrest);
Skoog, 469 F.3d at 1232 (retaliatory search and seizure); see
also White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000)
(holding that informal measures such as an investigation can
chill First Amendment activities). Likewise, a person of
ordinary firmness would be chilled from future exercise of his
First Amendment rights if he were booked and taken to jail in
retaliation for his speech. Therefore, a rational jury could
find that the officers deterred or chilled the future exercise of
Ford’s First Amendment rights.

                        2. Causation

    To satisfy the second requirement, the evidence must be
sufficient to establish that the officers’ desire to chill Ford’s
speech was a but-for cause of their conduct. In other words,
would Ford have been booked and jailed, rather than cited
and arrested, but for the officers’ desire to punish Ford for his
speech?

    Under Washington law, a police officer who has probable
cause may arrest an individual without a warrant if that
individual commits a misdemeanor in the presence of that
12                    FORD V . CITY OF YAKIMA

officer. RCW 10.31.100. When a person is arrested for a
traffic violation, the arresting officer may not detain him for
a period of time longer than is necessary to issue and serve a
citation and a notice to appear in court. RCW 46.64.015.
Upon arresting an individual for a misdemeanor, a police
officer has discretion under Washington Criminal Rules for
Courts of Limited Jurisdiction (“CrRLJ”) to hold an
individual in custody based on a limited number of factors,
including “whether detention appears reasonably necessary to
prevent imminent bodily harm to [the individual] or another,
or injury to property, or breach of the peace.” CrRLJ
2.1(b)(2)(ii).

    Ford does not contend that police officers lacked probable
cause to arrest him for violating the city noise ordinance. But
Officer Urlacher’s probable cause to arrest Ford does not
necessarily mean that booking and jailing him was
constitutional.2 The only permissible non-retaliatory bases on
which Officer Urlacher may have booked Ford are contained
in CrRLJ 2.1(b)(2), and the officers have argued and
presented evidence that their decision to book and jail Ford
was based on that provision.




  2
    Probable cause is not irrelevant to an individual’s claim that he was
booked and jailed in retaliation for his speech. Probable cause for the
initial arrest can be evidence of a police officer’s lack of retaliatory
animus for subsequently booking and jailing an individual. See Dietrich
v. John Ascuaga’s Nugget, 548 F.3d 892, 901 (9th Cir. 2008) (holding that
the issue of probable cause is not dispositive of ordinary retaliation claims,
though it still has “high probative force”) (alteration and quotation marks
omitted). However, that determination should be left to the trier of fact
once a plaintiff has produced evidence that the officer’s conduct was
motivated by retaliatory animus.
                     FORD V . CITY OF YAKIMA                             13

    While the issue of causation ultimately should be
determined by a trier of fact, Ford has provided sufficient
evidence for a jury to find that the officers’ retaliatory motive
was a but-for cause of their action, thus satisfying the
causation element of a First Amendment retaliation claim for
the purposes of qualified immunity.3 Cf. Duran, 904 F.2d at
1378 (finding summary judgment inappropriate where the
officer admitted to stopping the plaintiff because the plaintiff
made obscene gestures and yelled profanities but claimed he
had no retaliatory motive because he honestly believed
criminal activity might be afoot); Mendocino Envt’l Ctr.,
192 F.3d at 1303 (“The possibility that other inferences could
be drawn [regarding officers’ motivations] that would provide
an alternate explanation for the appellants’ actions does not
entitle them to summary judgment.”). Taken in the light most
favorable to Ford, the facts establish that the officers’ alleged
conduct violated his right to be free from police action
motivated by retaliatory animus, even if probable cause
existed for that action.



   3
       In considering causation, the dissent asks whether “the officer’s
statements to Ford truly intended to punish Ford for his comments” or, if,
instead, they were “efforts to elicit a changed perspective on Ford’s part
that would allow the officers to release Ford.” Dissent at 25. The dissent
offers the possibility that “[s]everal of the officer’s comments . . . can be
interpreted as indicating that the officer sought to give Ford an opportunity
to change his attitude,” making causation “problematic.” Dissent at
25–26. We are not persuaded by this nuanced view of the officer’s
statements. Police officers are authority figures. Accordingly, there is
little practical difference between officers “punishing” Ford for his speech
and providing Ford an “opportunity” to conform his views to those of the
police in order to avoid arrest. And even if that were a meaningful
distinction, the question whether the officers retaliated against Ford or
simply permitted him to retreat voluntarily from his lèse-majesté is
ultimately a factual one that would have to be resolved at trial.
14                FORD V . CITY OF YAKIMA

               B. Clearly Established Right

    The officers are nevertheless entitled to qualified
immunity if Ford’s right was not clearly established when the
officers booked and jailed him.

    Whether a right is clearly established for the purposes of
qualified immunity “depends substantially upon the level of
generality at which the relevant ‘legal rule’ is to be
identified.” Anderson v. Creighton, 483 U.S. 635, 639
(1987). The right must not be stated as a broad general
proposition, but rather must be defined with enough
specificity to put a reasonable officer on notice that his
conduct is unlawful. Reichle v. Howards, 132 S. Ct. 2088,
2093–94 (2012); cf. Hope, 536 U.S. at 741 (holding that
“general statements of the law are not inherently incapable of
giving fair and clear warning” to officers even where their
specific conduct has not previously been held unlawful)
(quoting United States v. Lanier, 520 U.S. 259, 271 (1997)).
A right can be clearly established despite a lack of factually
analogous preexisting case law, and officers can be on notice
that their conduct is unlawful even in novel factual
circumstances. See Karl v. City of Mountlake Terrace,
678 F.3d 1062, 1073 (9th Cir. 2012). The relevant inquiry is
whether, at the time of the officers’ action, the state of the
law gave the officers fair warning that their conduct was
unconstitutional. Hope, 536 U.S. at 741. We must assess the
legal rule “in light of the specific context of the case, not as
a broad general proposition.” Saucier, 533 U.S. at 201.

    At the time the officers acted in 2007, the law in this
Circuit gave fair notice that it would be unlawful to jail Ford
in retaliation for his First Amendment activity. Police
officers have been on notice at least since 1990 that it is
                  FORD V . CITY OF YAKIMA                      15

unlawful to use their authority to retaliate against individuals
for their protected speech. See Duran, 904 F.2d at 1375–78
(holding that a police officer’s traffic stop and subsequent
arrest of an individual who directed obscene gestures and
words toward that officer was unlawful because it was well-
established that police officers may not exercise their
authority for personal motives, especially in response to an
individual’s criticism or insults); see also Beck v. City of
Upland, 527 F.3d 853, 871 (9th Cir. 2008) (holding that
Duran clearly established that police officers could not use
their power to retaliate against an individual for his free
speech). Moreover, this Court’s 2006 decision in Skoog
established that an individual has a right to be free from
retaliatory police action, even if probable cause existed for
that action. 469 F.3d at 1235. In that case, Skoog claimed
that a police officer seized his property to retaliate against his
filing a lawsuit against another officer. Id. at 1227. We held
that although the officer’s search and seizure was supported
by probable cause, it was unlawful because the officer’s
primary motivation was to retaliate against Skoog’s exercise
of his First Amendment rights. Id. at 1235.

    Thus, Duran clearly established that police officers may
not use their authority to punish an individual for exercising
his First Amendment rights, while Skoog clearly established
that a police action motivated by retaliatory animus was
unlawful, even if probable cause existed for that action. The
officers’ conduct in this case falls squarely within the
prohibitions of Duran and Skoog. While the precise issue of
retaliatory booking and jailing has not been addressed in this
Circuit, “closely analogous preexisting case law is not
required to show that a right was clearly established.”
Robinson v. York, 566 F.3d 817, 826 (9th Cir. 2009) (citation
omitted). Duran addressed a retaliatory arrest and Skoog
16                FORD V . CITY OF YAKIMA

applied to a retaliatory search and seizure, but the
unlawfulness of a retaliatory booking and jailing was
nevertheless apparent from those cases. After Duran, any
reasonable police officer would have known that it was
unlawful to use his authority to retaliate against an individual
because of his speech. Likewise, any reasonable police
officer would have understood that Skoog’s prohibition on
retaliatory police action extended to typical police actions
such as booking and jailing. Therefore, this case involved the
kind of “mere application of settled law to a new factual
permutation” in which we assume an officer had notice that
his conduct was unlawful. See Eng v. Cooley, 552 F.3d 1062,
1076 (9th Cir. 2009) (quoting Porter v. Bowen, 496 F.3d
1009, 1026 (9th Cir. 2007)).

     A reasonable officer would have understood that he did
not automatically possess the authority to book and jail an
individual upon conducting a lawful arrest supported by
probable cause. Washington law clearly enumerates the
limited factors that would allow a police officer to book and
jail an individual who has been arrested for a misdemeanor.
CrRLJ 2.1(b)(2). A reasonable officer would have been
aware of the law governing his ability to book and jail an
individual he lawfully has arrested. Moreover, a reasonable
officer would have been aware that Washington law explicitly
states that its rules “shall not be construed to affect or
derogate from the constitutional rights of any defendant.”
CrRLJ 1.1. Thus, a reasonable police officer would have
understood that he could not exercise his discretion to book
an individual in retaliation for that individual’s First
Amendment activity. Finally, Officer Urlacher’s statements
indicate that he was, in fact, aware of his discretion to book
an individual he has arrested: “I have the freedom to take you
to jail . . . we have discretion whether we can book or release
                  FORD V . CITY OF YAKIMA                    17

you.” He surely was aware that his discretion was subject to
constitutional limits. Because the law concerning the right in
question was clearly established at the time of Ford’s arrest,
the officers are not entitled to qualified immunity.

                       IV. Conclusion

    Ford has put forth facts sufficient to allege a violation of
his clearly established First Amendment right to be free from
police action motivated by retaliatory animus, even if
probable cause existed for that action. Thus, the officers are
not entitled to qualified immunity, and Ford’s claims should
proceed to trial.

   REVERSED and REMANDED.



CALLAHAN, Circuit Judge, dissenting:

     I dissent because the majority’s opinion fails to follow
Supreme Court guidance in determining first that the police
officers’ decision to book Ford instead of issuing a ticket
violated his constitutional rights, and second that Ford’s
“right” was clearly established. On the first point, the
majority fails to appreciate that the scope of a person’s right
to speech is different after he or she has been detained. This
leads to the majority’s failure to discern that our prior cases
on retaliatory police action, even if not cabined by subsequent
Supreme Court decisions, do not create a clearly established
right forbidding an officer from considering the comments of
a legally detained individual when determining whether to
book the individual.
18                FORD V . CITY OF YAKIMA

                       I. Introduction

     This case raises an issue of first impression. It is not a
case of retaliatory arrest. Nonetheless, our review is
informed by cases suggesting that, in order to state a claim
for retaliatory arrest, a plaintiff must show a lack of probable
cause for the arrest. See Reichle v. Howards, — U.S. —, —,
132 S. Ct. 2088, 2095 (2012) (noting that evidence of
probable cause “could be thought similarly fatal to a
plaintiff’s claim that animus caused his arrest, given that
retaliatory arrest cases also present a tenuous causal
connection between the defendant’s alleged animus and the
plaintiff’s injury”). But see Skoog v. Cnty. of Clackamas,
469 F.3d 1221, 1232 (9th Cir. 2006) (noting “that a plaintiff
need not plead the absence of probable cause in order to state
a claim for retaliation”). The police had probable cause to
arrest Ford for violating the city noise ordinance and he does
not argue otherwise. See Majority at 12. Also, although Ford
was prosecuted in the Yakima Municipal Court for violating
the city noise ordinance and found not guilty of the charges,
he does not assert a claim of retaliatory prosecution. See
Hartman v. Moore, 547 U.S. 250, 266–67 (2006) (holding
that a plaintiff must show a lack of probable cause to state a
claim for retaliatory prosecution). Instead, Ford seeks
monetary damages in an action under 42 U.S.C. § 1983 based
on the assertion that the police officers violated his
constitutional rights when, after detaining him for violating
the city noise ordinance, they decided to book him based, in
part, on his post-detention statements, rather than just issuing
a ticket.

    Ford’s asserted claim of a violation of his constitutional
rights, and the majority’s treatment of it, raises several major
concerns. Initially and critically, the majority assumes,
                  FORD V . CITY OF YAKIMA                     19

incorrectly, that Ford’s arrest did not affect the scope of his
First Amendment right to free speech. Consequently, the
majority fails to appreciate that a plaintiff asserting that he
was booked instead of ticketed in retaliation for his post-
detention statements must show a lack of probable cause for
his booking. Here, this prerequisite for relief bars Ford from
prevailing for two reasons. First, he has not claimed that the
officers lacked probable cause to book him. Second, the
district court’s unchallenged determination that Ford’s
exercise of his right of free speech was not the but-for cause
of his booking establishes that there was probable cause to
book Ford.

    II. Ford Has Not Shown A Violation of His First
                  Amendment Rights

    A. Lawful Detention Curtails An Individual’s Rights
       Under the First Amendment

    I agree with the majority that the “First Amendment
protects a significant amount of verbal criticism and
challenge directed at police officers,” City of Houston v. Hill,
482 U.S. 451, 461 (1987), and that police officers “must
respect the right of individuals in [the] community to question
their government and the role of the police,” Mackinney v.
Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995). However, here
we are concerned not with speech that might give rise to an
arrest, but with speech made after a person has been lawfully
detained. This is a critical distinction. It is well settled that
once an individual is lawfully detained, his or her rights may
be restricted for legitimate penological and custodial reasons.
See Bell v. Wolfish, 441 U.S. 520, 546 (1979) (stating that
“[a] detainee simply does not possess the full range of
20                   FORD V . CITY OF YAKIMA

freedoms of an unincarcerated individual”);1 see also Bull v.
City & Cnty. of San Francisco, 595 F.3d 964, (9th Cir. 2010)
(en banc) (upholding strip searchers of arrestees). Obviously,
a detained person is not free to leave. Similarly, a detained
person’s speech may be relevant to the restraints placed on
him and his conditions of confinement. In other words, what
a person says after he or she is lawfully detained may be, and
perhaps must be, considered by police officers. Other than to
state that it disagrees, the majority does not address this
reality.

    The scope of a detained person’s First Amendment rights
is particularly germane in the context of the defendant
officers deciding whether to book or ticket Ford. Washington
law provides that an officer making this decision should
consider “whether detention appears reasonably necessary to
prevent imminent bodily harm to himself, herself, or another,
or injury to property, or breach of the peace.” Wash. CrRLJ
2.1(b)(ii). This consideration appears to be constitutional and
is eminently reasonable. We would not want a peace officer
to release an individual when the officer has reason to believe
that the individual will harm “himself, herself, or another, or
[injure] property, or breach [] the peace.” Moreover, among
the most relevant evidence for such a determination will be


  1
     The Supreme Court explained that although “prison inmates retain
certain constitutional rights . . . [l]awful incarceration brings about the
necessary withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our penal system.”
Bell, 441 U.S. at 545–46 (internal quotation marks and citations omitted).
The Court also commented that it had held “that even when an
institutional restriction infringes a specific constitutional guarantee, such
as the First Amendment, the practice must be evaluated in the light of the
central objective of prison administration, safeguarding institutional
security.” Id. at 547.
                   FORD V . CITY OF YAKIMA                       21

the individual’s statements. Indeed, here the officer
explained that his decision to detain Ford was based on
Ford’s “mouth and [his] attitude.” In explaining his decision
to detain Ford, the officer cited concerns for public safety as
well as Ford’s failure to listen, failure to act civilly, failure to
take responsibility for his actions, and disrespectful behavior
toward law enforcement. Thus, both as a matter of common
sense and state law, the defendant officers were allowed to
consider Ford’s post-detention statements in deciding whether
to ticket or book him.

    B. Ford’s Claim of Retaliation Based on His Post-
       Detention Statements Requires a Showing of the
       Absence of Probable Cause for the Booking

    The interplay between the officer’s need to determine a
detained person’s dangerousness and proclivity to commit
further breaches of peace, and the person’s right to speech
under the First Amendment, distinguishes this case from the
cases the majority cites and directs how we should review
Ford’s allegations. Skoog alleged that the defendants
searched his office and seized materials in retaliation for
Skoog having filed a lawsuit. Skoog, 469 F.3d at 1227. In
Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990), the
plaintiffs alleged that defendants had unlawfully arrested
them based on one of them making obscene gestures at the
police from their car. Id. at 1374–75. In Lacey v. Maricopa
County, 693 F.3d 896 (9th Cir. 2012) (en banc), the plaintiff
alleged that defendants violated his First Amendment rights
by investigating and arresting him in retaliation for articles he
published. Id. at 916. In each case, the actions taken against
the plaintiffs were allegedly taken against them based on their
exercising their rights as private citizens. Thus, the statement
in Skoog, 469 F.3d at 1235, that an individual has a right “to
22               FORD V . CITY OF YAKIMA

be free from police action motivated by retaliatory animus but
for which there was probable cause” did not purport to cover
a situation where a defendant’s constitutional rights are
already circumscribed by his lawful detention. Indeed, in
Duran the court noted that there are “well-defined limits on
what police officers may do in discharging their duties,” and
that “[p]erhaps the most fundamental of these is the
requirement that the police not interfere with the freedom of
private persons unless it be for specific, legitimate reasons.”
904 F.3d at 1376. Here, Ford’s charges against the officers
concern not interference “with the freedom of private
persons,” but rather the officers’ reactions to Ford’s
comments after he was legally detained.

       1. Ford must show a lack of probable cause for
          his booking

    Accordingly, Ford’s case is analogous to the situation
presented in Reichle, where the Supreme Court noted that
“the right in question is not the general rule to be free from
retaliation for one’s speech, but the more specific right to be
free from a retaliatory arrest that is otherwise supported by
probable cause.” 132 S. Ct. at 2094. The Court held that it
“has never held that there is such a right.” Id. Similarly,
Ford has no right not to be booked based on his post-
detention statements where the booking is supported by
probable cause.

    In Reichle, the Court noted that evidence of probable
cause “could be thought similarly fatal to a plaintiff’s claim
that animus caused his arrest, given that retaliatory arrest
cases also present a tenuous causal connection between
defendant’s alleged animus and the plaintiff’s injury.” Id. at
2095. The Court commented:
                     FORD V . CITY OF YAKIMA                          23

         An officer might bear animus toward the
         content of a suspect’s speech. But the officer
         may decide to arrest the suspect because his
         speech provides evidence of a crime or
         suggests a potential threat . . . . Like
         retaliatory prosecution cases, then, the
         connection between alleged animus and injury
         may be weakened in the arrest context by a
         police officer’s wholly legitimate
         consideration of speech.

Id. at 2095–96 (internal citation omitted). The Supreme
Court expressed a preference for requiring the showing of the
absence of probable cause and approvingly cited decisions by
other circuit courts requiring a showing of a lack of probable
cause.2 Id. at 2096.

 2
   The Supreme Court noted that for qualified immunity purposes, “it was
at least arguable” that Hartman’s rule requiring a lack of probable cause
extended to retaliatory arrests. Id. at 2096. It then commented:

         Decisions from other Federal Courts of Appeals in the
         wake of Hartman support this assessment. Shortly
         before Howards’ arrest, the Sixth Circuit held that
         Hartman required a plaintiff alleging a retaliatory arrest
         to show that the defendant officer lacked probable
         cause. See Barnes v. Wright, 449 F.3d 709, 720 (2006)
         (reasoning that the Hartman “rule sweeps broadly”).
         That court’s treatment of Hartman confirms that the
         inapplicability of Hartman to arrests would not have
         been clear to a reasonable officer when Howards was
         arrested. Moreover, since Howards’ arrest, additional
         Courts of Appeals have concluded that Hartman’s
         no-probable-cause requirement extends to retaliatory
         arrests. See, e.g., McCabe v. Parker, 608 F.3d 1068,
         1075 (C.A.8 2010); Phillips v. Irvin, 222 Fed. Appx.
         928, 929 (C.A.11 2007) (per curiam). As we have
24                   FORD V . CITY OF YAKIMA

    Recognition of the officers’ “wholly legitimate
consideration of speech” by a lawfully detained individual,
such as Ford, changes fundamentally the nature of a court’s
inquiry. Asking whether an officer’s “acts would chill or
silence a person of ordinary firmness from future First
Amendment activities,” Majority at 11 (quoting Mendocino
Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.
1999)), assumes that a detained individual has a constitutional
right to say whatever he wants while he is detained, without
any adverse consequences. As shown, this is not true. Thus,
the majority’s application of Mendocino to this case ignores
the crucial distinction between what an individual may be
arrested for and the necessary consequences of statements by
an individual after he has been detained.

    Rather than focus on whether an officer’s action had a
chilling effect on the plaintiff, the proper inquiry under cases
such as Reichle is whether the officer had probable cause to
book the detained individual in light of his statements. In
other words, did Ford’s post-detention statements give the
officers reason to believe that Ford might harm himself or
others, injure property, or breach the peace?

    In making this inquiry, we should keep in mind our
statement in Duran that:




         previously observed, “[i]f judges thus disagree on a
         constitutional question, it is unfair to subject police to
         money damages for picking the losing side of the
         controversy.” Wilson v. Layne, 526 U.S. 603, 618
         (1999).

Reichle, 132 S. Ct. at 2096 (parallel citations omitted).
                     FORD V . CITY OF YAKIMA                           25

         A police officer’s duties are both difficult and
         dangerous. Circumstances on the beat often
         require immediate action in order to prevent
         serious harm to persons or property; rarely is
         there time for brushing up on the Supreme
         Court’s latest pronouncements on warrant
         requirements, probable cause or reasonable
         suspicion. Thus, police officers “generally are
         shielded from liability for civil damages
         insofar as their conduct does not violate
         clearly established statutory or constitutional
         rights of which a reasonable person would
         have known.” Harlow v. Fitzgerald, 457 U.S.
         800, 818 (1982). This is an objective
         standard, Anderson v. Creighton, 483 U.S.
         635, 641 (1987), that leaves “ample room for
         mistaken judgments.” Malley v. Briggs,
         475 U.S. 335, 343 (1986).

904 F.2d at 1376 (parallel citations omitted).

    Critically, as Reichle suggests, focusing on whether the
officer had legitimate reasons under Washington law for
booking Ford casts a different light on causation. Were the
officer’s statements to Ford truly intended to punish Ford for
his comments, or were they efforts to elicit a changed
perspective on Ford’s part that would allow the officer to
release Ford? Several of the officer’s comments that the
majority cites can be interpreted as indicating that the officer
sought to give Ford an opportunity to change his attitude.3 If


 3
   For example, the majority notes that the officer stated: “He might only
get a ticket if he cooperates. But with that attitude, he’s going to get
cuffed”; “I don’t know if I’m going to book him yet. I’ll see if he’s going
26                    FORD V . CITY OF YAKIMA

the officer’s motive was not to chill Ford’s First Amendment
rights, causation becomes problematic.4 In Hartman, the
Supreme Court noted:

         It is clear, moreover, that the causation is
         understood to be but-for causation, without
         which the adverse action would not have been
         taken; we say that upon a prima facie showing
         of retaliatory harm, the burden shifts to the
         defendant official to demonstrate that even
         without the impetus to retaliate he would have
         taken the action complained of (such as firing
         the employee). See Mt. Healthy [City Sch.
         Dist. Bd. of Educ. v. Doyle], 429 U.S. [274,]
         287 [(1977)]. If there is a finding that
         retaliation was not the but-for cause of the
         discharge, the claim fails for lack of causal
         connection between unconstitutional motive
         and resulting harm, despite proof of some
         retaliatory animus in the official’s mind. See
         ibid. It may be dishonorable to act with an
         unconstitutional motive and perhaps in some


to shut up”; and “If he shuts up, I’ll let him go with a ticket.” Majority
at 5.

  4
    The majority takes issue with what it describes as this “nuanced view
of the officer’s statement.” Majority at 13 n.3. It posits that there is little
practical difference between an officer “punishing” Ford and providing
him an “opportunity” to avoid detention. I disagree. Because the officer
was required to consider Ford’s post-detention statements in determining
whether to book him, the officer should not be found liable in a § 1983
action unless there is a lack of probable cause for the detention and clearly
established constitutional limitations on his consideration of Ford’s
statements.
                 FORD V . CITY OF YAKIMA                    27

       instances be unlawful, but action colored by
       some degree of bad motive does not amount
       to a constitutional tort if that action would
       have been taken anyway. See Crawford-El [v.
       Britton, 523 U.S. 574,] 593 [(1998)]; Mt.
       Healthy, supra, at 285–286.

547 U.S. at 260 (parallel citations omitted).

    The need to establish causation, when coupled with the
recognition that an officer’s duties are “difficult and
dangerous” and “often require immediate action,” Duran,
904 F.2d at 1376, support requiring that a plaintiff plead and
prove an absence of probable cause when claiming a
retaliatory booking based on statements made after he was
lawfully detained. Otherwise, officers may face lawsuits and
liability for retaliation even when they have probable cause
to book the detainee. If the officer has probable cause to
book a detained individual based, in part, on the person’s
post-detention actions or statements, there is no causation;
and thus, there is no cause of action for violation of a
constitutional right. See Hartman, 547 U.S. at 260.

    The reasons underlying the Supreme Court’s opinion in
Reichle also require a showing of a lack of probable cause in
a § 1983 action based on the plaintiff’s post-detention speech.
Ford’s claim of retaliation presents a “tenuous causal
connection between the defendant’s alleged animus and the
plaintiff’s injury” similar to that presented in retaliatory
prosecution and arrest cases. First and foremost, Reichle
concerned alleged retaliation based on the acts of a free
private person, while Ford objects to the officers’ reaction to
his statements made while he was legally detained. In
Reichle, the Supreme Court noted that “evidence of the
28               FORD V . CITY OF YAKIMA

presence or absence of probable cause for the arrest will be
available in virtually every retaliatory arrest case.” Id. at
2095. However, this is not true where the allegation is that an
officer violated a person’s constitutional right by exercising
the option of booking the individual rather than issuing a
ticket. Unlike determinations of whether there is probable
cause for an arrest or to prosecute, there usually is no reason
to marshal the evidence supporting the officer’s decision to
detain rather than to ticket an individual until and unless the
individual files a § 1983 action. Even where, as here, there
is a video of the arrest and detention, this does not encompass
all the information the officers received and considered in
making their decision. Moreover, unlike probable cause for
an arrest or for prosecution, for which there is considerable
case law, there is little judicial guidance on how to evaluate
an officer’s decision to book a lawfully detained individual.
Thus, requiring the pleading and proving of a lack of
probable cause is necessary to shield officers from being
second guessed in civil actions brought by those they lawfully
detained. See Messerschmidt v. Millender, — U.S. —, —,
132 S. Ct. 1235, 1244–45 (2012) (stating that qualified
immunity “protects government officials from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known,” should provide
“government officials breathing room to make reasonable but
mistaken judgments,” and should protect “all but the plainly
incompetent or those who knowingly violate the law”).
                 FORD V . CITY OF YAKIMA                    29

       2. Because the District Court found there was
          probable cause for booking Ford, it properly
          granted judgment for defendants.

    Even if Ford were not required to show a lack of probable
cause for his booking, the district court’s finding of probable
cause – which the majority does not really address – supports,
nay compels, the district court’s grant of summary judgment
for the officers. The district court on cross-motions for
summary judgment determined that the totality of the
circumstances led the officer “to reasonably conclude
booking was warranted.” The court concluded that the
booking “was not retaliatory” and that “no rational jury could
conclude [Ford’s] exercise of his right of free speech was the
‘but-for cause’ of his booking.”

    Although the court in Skoog stated that “a plaintiff need
not plead the absence of probable cause in order to state a
claim for retaliation,” 469 F.3d at 1232, it also stated that
“Skoog must ultimately prove that Royster’s desire to cause
the chilling effect was a but-for cause of the defendant’s
action.” Id. Thus, even if the statement in Skoog that a
plaintiff need not plead the absence of probable cause
survives the Supreme Court’s statement in Reichle that it “has
never recognized a First Amendment right to be free from a
retaliatory arrest that is supported by probable cause,” 132
S. Ct. at 2093, here, the district court’s finding that the
officers’ “desire to cause the chilling effect” was not a “but-
for cause” of Ford’s booking terminates the case, even under
Skoog.

    Once the case was submitted to the district court on cross-
motions for summary judgment, the facts were no longer
“[t]aken in the light most favorable to Ford.” Majority at 13.
30                   FORD V . CITY OF YAKIMA

Rather, the district court’s finding of no “but-for cause”
should be affirmed unless Ford can show that the findings are
clearly erroneous. See United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948); see also United States v. Hinkson,
585 F.3d 1247, 1260–61 (9th Cir. 2009) (en banc).5

       III. The Right Perceived By The Majority Is Not
                     Clearly Established

    Even if I were to agree with the majority that Ford had a
constitutional right not to have the officers consider his
comments while he was detained, which I do not, I could not
agree that this right was “clearly established.” That is to say,
the officers were not on notice that deciding to book Ford
based, in part, on his comments while detained, violated his
rights under the First Amendment.

    The Supreme Court has not been chary of reminding us
that a clearly established right cannot be established at a high


   5
      In Hinkson, we reiterated the Supreme Court’s statement that “a
finding is ‘clearly erroneous’ when, although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.” 583 F.3d at 1260
(quoting U.S. Gypsum, 333 U.S. at 395). W e further commented that:

          the scope of our review limits us to determining
          whether the trial court reached a decision that falls
          within any of the permissible choices the court could
          have made. In other words, the Supreme Court’s
          precedent convinces us that any “definite and firm
          conviction” of the reviewing court must still include
          some measure of deference to the trial court’s factual
          determinations.

Id. at 1261.
                  FORD V . CITY OF YAKIMA                     31

level of generality. In Ashcroft v. al-Kidd, 131 S. Ct. 2074
(2011), the Supreme Court specifically stated “We have
repeatedly told courts – and the Ninth Circuit in particular –
not to define clearly established law at a high level of
generality.” Id. at 2084 (internal citation omitted); see also
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)
(concluding that the Ninth Circuit erred in defining the right
at issue at “a high level of generality”).

     This is precisely what the majority does here. It takes
Skoog, which concerns a retaliatory arrest based on a free
private person’s action, and applies it to an action alleging an
unconstitutional booking based, in part, on the plaintiff’s
statements while legally detained. This stretched application
of Skoog is inconsistent with the Supreme Court’s caution
that “[t]he general proposition . . . that an unreasonable search
or seizure violates the Fourth Amendment is of little help in
determining whether the violative nature of particular conduct
is clearly established.” al-Kidd, 131 S. Ct. at 2084.
Furthermore, Skoog, which is not a Supreme Court opinion
and was decided only eight months before Ford’s detention,
is itself equivocal as to what it “established.” The court
concluded that the right it found was not clearly established
at the time of the search, and further commented that “[a]t
some future point, this right will become clearly established
in this Circuit.” 469 F.3d at 1235. Thus, the extent to which
Skoog itself clearly established a cause of action for alleged
police retaliation despite the presence of probable cause for
the officer’s action is doubtful. The clarity of this rule is
further muddied by the spirit, if not the holding, of the
Supreme Court’s subsequent opinion in Reichle, 132 S. Ct.
2088.
32                   FORD V . CITY OF YAKIMA

   The test for determining that a right is clearly established
requires much more. The Supreme Court has explained:

         [C]learly established for purposes of qualified
         immunity means that [t]he contours of the
         right must be sufficiently clear that a
         reasonable official would understand that
         what he is doing violates that right. This is not
         to say that an official action is protected by
         qualified immunity unless the very action in
         question has previously been held unlawful,
         but it is to say that in the light of pre-existing
         law the unlawfulness must be apparent.

Wilson v. Layne, 326 U.S. 603, 614–15 (1999) (internal
quotation marks and citation omitted). Here, while the
officer’s subjective intent is not controlling, it is clear that
Officer Urlacher reasonably did not think that he was
violating any of Ford’s constitutional rights.6 More
importantly, there is no “pre-existing law” to inform the
officers that Ford, once detained, could not talk himself into
jail.

    The majority states that police officers have been on
notice since 1990 that it is unlawful to use their authority to
retaliate against individuals for their protected speech.
Majority at 14–15. But all of the cases on which the majority
relies concerned actions to arrest or to search based on




 6
   This conclusion is implicit in the officer’s statement to Ford that “but
you talked yourself into this on video. It’s all well recorded.” See
Majority at 6.
                     FORD V . CITY OF YAKIMA                             33

individuals actions as free private persons.7 Had the officers
initially detained Ford based on his speech, the majority’s
broad axiom might apply. But that is not what Ford alleges.
He alleges only that the officers decided to book him instead
of giving him a ticket based on what he said after he was
legally detained. Moreover, as the majority recognizes, under
Washington law, the officers were required to consider Ford’s
post-detention statements in determining whether to ticket or
book him. The officers were aware of this requirement of
Washington law and cited it as one of the reasons leading
them to book Ford. See Majority at 12. The majority has not
cited, nor am I aware of any, case law that addresses an
officer’s consideration of a detained individual’s statements
when determining whether to book the individual. Indeed, it
seems self-evident that an officer is required to consider some
statements by a detained person such as those relating to
medical condition, health, fear of assault from others, and
threats, in determining how to process the individual.8


  7
    As previously noted, in Duran, 904 F.2d 1372, the plaintiffs were
arrested after one of them made obscene gestures at the police from their
car. Id. at 1374–75. In Beck v. City of Upland, 527 F.3d 853 (9th Cir.
2008), the plaintiff alleged that he was arrested because of his protected
speech challenging his treatment by the city. Id. at 856–57. Neither of
these cases, nor Skoog, 469 F.3d 1221, appear on its face to have any
application to an officer’s determination that a detained individual should
be booked, rather than ticketed, in part because of his statements while
detained.

  8
     The majority recognizes that the officer was required to consider
Ford’s comments, but asserts, apparently as a factual matter, that Ford said
nothing that would allow the officer to book him. See Majority at 10 n.1,
16–17. The officer, of course, thought otherwise. Thus, over five years
after the event, the officer now faces liability because two appellate judges
disagree with his assessment of the situation. This further illustrates the
importance of requiring a showing of no probable cause. If, as the district
34                   FORD V . CITY OF YAKIMA

Because an officer’s use of a detained person’s statements
raise substantially different considerations from an officer’s
reactions to the statements of a free person, the cases cited by
the majority did not reasonably put the officers on notice that
in telling Ford that he had talked himself into jail, they were
chilling Ford’s constitutionally protected right to free speech.
If we are going to impose such etiquette upon peace officers,
we must first clearly so hold, and not expect them to glean
such a “vague” constitutional rule from Ninth Circuit cases
that appear to be out of step, if not inconsistent, with recent
Supreme Court decisions.9

                           IV. Conclusion

    In sum, we have wandered far from our limited role as an
appellate court. First, we should have affirmed the district
court because Ford has not shown that the court’s
determination that chilling his speech was not the “but for
cause” of his booking. Second, we should have recognized
that there is no “pre-existing law” that fairly informed the
officers that they could not consider the statements Ford
made while he was legally detained in deciding to book him,


court found, there was probable cause to book Ford, that should be the end
of the matter.

     9
      If nothing else, perhaps the majority’s opinion and this dissent
illustrate the wisdom of the Supreme Court’s decision in Pearson v.
Callahan, 555 U.S. 223 (2009), of allowing courts to address the second
prong of the Saucier test when the constitutional question under the first
prong is more difficult. Moreover, I fear that in failing to heed the
Supreme Court’s advice to “think carefully before expending scarce
judicial resources to resolve difficult and novel questions of constitutional
or statutory interpretation that will have no effect on the outcome of the
case,” al-Kidd, 131 S. Ct. at 2080 (internal quotation marks and citations
omitted), we have demonstrated its wisdom.
                 FORD V . CITY OF YAKIMA                    35

and affirmed the district court pursuant to the second prong
of the Saucier test. Finally, I disagree with the majority’s
assertion that Ford may assert a claim for retaliatory booking
based on the statements he made while legally detained
without showing an absence of probable cause for his
booking. As in this case, police officers are often called upon
to make decisions concerning the protection of themselves
and the public on the street and in the middle of the night.
We should not espouse a standard that may subject an officer
to personal liability because years after the event a court
decides that the officer may have had an improper motive –
as well as probable cause – for the action he took.
Accordingly, I dissent.
