                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 06 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DAVID PICRAY,                                    No. 14-35147

              Plaintiff - Appellee,              D.C. No. 6:12-cv-00944-MC

 v.
                                                 MEMORANDUM*
CHRISTOPHER DUFFITT and GREG
RIDLER,

              Defendants - Appellants,

  and

BENTON COUNTY,

              Defendant.


                   Appeal from the United States District Court
                             for the District of Oregon
                   Michael J. McShane, District Judge, Presiding

                        Argued and Submitted April 8, 2016
                       University of Oregon, Eugene, Oregon

Before: GOODWIN, O’SCANNLAIN, and LEAVY, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Benton County Sheriff’s Deputy Christopher Duffitt and Captain Greg

Ridler appeal from the district court’s order on summary judgment denying their

motion for qualified immunity. David Picray brought this action under 42 U.S.C.

§ 1983, contending that defendants arrested him and subsequently searched his

home in retaliation for his protected speech. We have jurisdiction under 28 U.S.C.

§ 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (an order denying

qualified immunity is appealable under § 1291 notwithstanding the absence of a

final judgment). We review de novo. Wilkins v. City of Oakland, 350 F.3d 949,

954 (9th Cir. 2003). We reverse the district court’s denial of qualified immunity

and remand for further proceedings.

      The purported right to be free from a retaliatory arrest that is otherwise

supported by probable cause was not clearly established in this circuit at the time

of Picray’s arrest. See Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)

(“Qualified immunity shields government officials from civil damages liability

unless the official violated a statutory or constitutional right that was clearly

established at the time of the challenged conduct.”). In Hartman v. Moore, 547

U.S. 250, 265-66 (2006), the Supreme Court held that a plaintiff must plead and

prove the absence of probable cause to support a claim for retaliatory prosecution.

At the time of Picray’s arrest in 2010, however, our case law was far from clear


                                            2
about Hartman’s application in the context of retaliatory arrest claims. Compare

Beck v. City of Upland, 527 F.3d 853, 863-64 (9th Cir. 2008) (stating that under

Hartman, a plaintiff must prove the absence of probable cause to prevail on a claim

for retaliatory arrest or prosecution), with Dietrich v. John Ascuaga’s Nugget, 548

F.3d 892, 901 (9th Cir. 2008) (stating that the existence of probable cause is “not

dispositive” in a retaliatory arrest claim); see also Reichle, 132 S. Ct. at 2096-97

(noting that Hartman “injected uncertainty into the law governing retaliatory

arrests, particularly in light of . . . the close relationship between retaliatory arrest

and prosecution claims”).1 Given that uncertainty, we cannot conclude that the law

was clearly established for purposes of qualified immunity.

       Viewing the facts in the light most favorable to Picray, see Wilkins, 350 F.3d

at 954, defendants had probable cause to arrest Picray for Recklessly Endangering

Another Person and Reckless Driving. See Or. Rev. Stat. §§ 163.195 (Recklessly

Endangering Another Person), 811.140 (Reckless Driving). In addition to the

evidence that the district court cited, Duffitt sought advice from an assistant district



       1
       We note that we held in Ford v. City of Yakima, 706 F.3d 1188, 1196 (9th
Cir. 2013), that Skoog v. County of Clackamas, 469 F.3d 1221, 1233-35 (9th Cir.
2006), established that police action motivated by retaliatory animus is unlawful
even where probable cause exists. However, Skoog concerned only a retaliatory
search, and the arrest at issue in Ford took place in 2007, before either Beck or
Dietrich was decided.
                                             3
attorney before making the arrest, supporting an inference that he acted in good

faith. See Ewing v. City of Stockton, 588 F.3d 1218, 1231 (9th Cir. 2009)

(observing that although “an officer’s consultation with a prosecutor is not

conclusive[,] . . . it is evidence of good faith” that may “tip[] the scale in favor of

qualified immunity”).

      Defendants also are entitled to qualified immunity for their search of

Picray’s home. Under the clearly established prong of qualified immunity, “[t]he

dispositive question is ‘whether the violative nature of particular conduct is clearly

established.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 742 (2011)). Unlike the search at issue in Skoog v. County of

Clackamas, 469 F.3d at 1231, probable cause strongly supported the search since

the items sought could have contained direct documentary evidence of Picray’s

alleged crimes. And defendants’ “previous negative interactions” with Picray

create only a “weak inference” of retaliation, insufficient to sustain his claim. See

Dietrich, 548 F.3d at 901. We therefore reverse the district court’s denial of

qualified immunity.

      REVERSED and REMANDED.




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