                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 22 2010

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




                            FOR THE NINTH CIRCUIT



JAMES THOMAS,                                    No. 09-35799

              Plaintiff - Appellee,              D.C. No. 1:08-cv-3111-CL

  v.                                             MEMORANDUM *

EVERETT CARROLL; JOHN VIAL;
BRIAN POWERS; GREGORY
COSTANZO,

              Defendant - Appellants

              and

JAMES MILLER,

              Defendant




                    Appeal from the United States District Court
                             for the District of Oregon
                    Mark D. Clarke, Magistrate Judge, Presiding

                      Argued and Submitted October 7, 2010
                                Portland, Oregon

Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      James Thomas was involved in a noisy fight at a highway rest area owned

and operated by the Oregon State Department of Transportation (ODOT). ODOT

officials ordered Thomas permanently excluded from the rest area and, when

Thomas returned to the property, authorized his arrest by the Oregon State Police

for second-degree criminal trespass. Thomas sued under 42 U.S.C. § 1983, arguing

that his arrest was illegal and that his Fourth Amendment rights were violated. The

district court denied the motion of the ODOT individual defendants for summary

judgment on the grounds of qualified immunity. We affirm.

      Oregon law defines trespass as entry onto property after being lawfully

excluded. See O.R.S. § 164.205(3)(c). Thomas contends that he had not been

lawfully excluded from the rest area and thus that there was no probable cause for

his arrest. The constitutional proposition that an arrest may not be made without

probable cause of a violation is clearly established. There is a disputed issue

whether the ODOT defendants reasonably believed that they had the authority to

exclude Thomas permanently and had effectively done so. ODOT regulations

governing rest areas do not give the agency authority to exclude someone

permanently from a rest area. OAR 734-030-0010 lists activities prohibited in rest

areas, and OAR 734-030-0015 permits a rest area attendant to order a person




                                          2
violating OAR 734-030-0010 to leave the rest area. But OAR 734-030-0015 does

not authorize the agency to ban a person from reentering the property.

      The ODOT defendants have asserted that ODOT has a broad, inherent right

as a property owner to exclude persons from the rest area, but they have not

demonstrated that they are entitled to qualified immunity as a matter of law on that

basis. The property in question is owned by the state, appears to be open to the

public, and is intended for public use. ODOT does not necessarily have all the

rights a private land owner might have to bar a particular individual permanently

from entering the property. It remains uncertain, then, whether the ODOT

defendants could have reasonably believed that they had such authority and that

they had effectively exercised it.

      AFFIRMED.




                                          3
