                                                                             FILED
                           NOT FOR PUBLICATION
                                                                              OCT 20 2017
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RUSSELL P. BARTLETT,                              No. 16-35631

              Plaintiff-Appellant,                D.C. No. 4:15-cv-00004-SLG

 v.
                                                  MEMORANDUM*
LUIS A. NIEVES, in his personal capacity
and BRYCE L. WEIGHT, in his personal
capacity,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Alaska
                    Sharon L. Gleason, District Judge, Presiding

                      Argued and Submitted October 6, 2017
                              Seattle, Washington

Before: WARDLAW, CLIFTON, and OWENS, Circuit Judges.

      Plaintiff-Appellant Russell P. Bartlett appeals the district court’s grant of

summary judgment to Alaska state trooper Defendants-Appellees Luis A. Nieves

and Bryce L. Weight on his § 1983 claims of false arrest, excessive force,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
malicious prosecution, and retaliatory arrest. We review the district court’s grant

of summary judgment de novo. Garcia v. Cty. of Merced, 639 F.3d 1206, 1208

(9th Cir. 2011). We affirm in part and reverse in part.

      1. We affirm the district court’s grant of summary judgment to the

defendants on plaintiff’s false arrest claim on the ground of qualified immunity. A

two-part test applies to qualified immunity claims. Construing the facts in the light

most favorable to the party alleging injury, the court must evaluate: 1) whether the

officer violated a constitutional right; and 2) whether that right was clearly

established at the time of the officer’s actions. See Lal v. California, 746 F.3d 112,

116 (9th Cir. 2014) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

      Adopting Bartlett’s version of the facts, we agree with the district court that

defendants had at least arguable probable cause to arrest Bartlett for harassment,

disorderly conduct, resisting arrest, or assault under Alaska law. When Sergeant

Nieves initiated Bartlett’s arrest, he knew that Bartlett had been drinking, and he

observed Bartlett speaking in a loud voice and standing close to Trooper Weight.

He also saw Trooper Weight push Bartlett back. Although Bartlett may have his

own explanations for his actions, these explanations were not known to Sergeant

Nieves; the test is whether “the information the officer had at the time of making

the arrest” gave rise to probable cause. John v. City of El Monte, 515 F.3d 936,


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940 (9th Cir. 2008). We agree with the district court that it did; a reasonable

officer in Sergeant Nieves’s position could have concluded that Bartlett stood close

to Trooper Weight and spoke loudly in order to “challenge” him, provoking

Trooper Weight to push him back. See Alaska Stat. § 11.61.120(a)(1). Therefore,

we affirm the district court’s grant of summary judgment to the troopers on

Bartlett’s false arrest claim.

       2. We affirm the district court’s grant of summary judgment to the troopers

on Bartlett’s excessive force claim on the ground of qualified immunity. In

particular, Bartlett has failed to point to a case that clearly establishes that the

troopers’ limited use of force to effect his arrest was unconstitutional. Bartlett’s

references to Young v. County of Los Angeles, 655 F.3d 1156 (9th Cir. 2011), and

Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007), are unavailing. In

the present case, the troopers reacted quickly to a fluid situation and were faced

with the undisputedly challenging circumstances of Arctic Man. These

circumstances were not present in Young and Blankenhorn. Because the second

prong of the qualified immunity test requires “a case where an officer acting under

similar circumstances . . . was held to have violated the Fourth Amendment,” and

we are not aware of any such case, we agree with the district court that the officers

are entitled to qualified immunity on Bartlett’s excessive force claim. See White v.


                                             3
Pauly, 137 S. Ct. 548, 552 (2017) (instructing that clearly established law must be

“particularized” to the facts of the case).

      3. We also affirm the district court’s grant of summary judgment on

Bartlett’s malicious prosecution claim. To prevail on his malicious prosecution

claim, Bartlett must show that the troopers prosecuted him: 1) with malice; 2)

without probable cause; and 3) for the purpose of denying him a specific

constitutional right. Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.

1995). Because we conclude that the officers had probable cause to arrest Bartlett,

we affirm the grant of summary judgment to the troopers on this claim.

      4. We reverse the district court’s dismissal of Bartlett’s retaliatory arrest

claim. The district court dismissed this claim on the ground that the troopers had

probable cause to arrest Bartlett. However, we have previously held that a plaintiff

can prevail on a retaliatory arrest claim even if the officers had probable cause to

arrest. See Ford v. City of Yakima, 706 F.3d 1188, 1195–96 (9th Cir. 2013) “[A]n

individual has a right to be free from retaliatory police action, even if probable

cause existed for that action.”).

      The Supreme Court’s decision in Reichle v. Howards, 566 U.S. 658 (2012),

does not foreclose this result. In Reichle, the Court noted that it had not previously

recognized a First Amendment right to be free from a retaliatory arrest supported


                                              4
by probable cause, but did not conclude that a plaintiff must show lack of probable

cause to make a retaliatory arrest claim. Id. at 664–65. Indeed, the Court

emphasized that the rule that it announced in Hartman v. Moore, 547 U.S. 250

(2006), which held that a plaintiff cannot make a retaliatory prosecution claim if

the charges were supported by probable cause, does not necessarily extend to

retaliatory arrests. Reichle, 566 U.S. at 666–70.

      We have since clarified that in the Ninth Circuit, a plaintiff can make a

retaliatory arrest claim even if the arresting officers had probable cause. When the

troopers arrested Bartlett at Arctic Man in 2014, it was clearly established that “an

individual has a right to be free from retaliatory police action, even if probable

cause existed for that action.” Ford, 706 F.3d at 1195–96. Therefore, the district

court erred in concluding that Bartlett’s retaliatory arrest claim fails simply

because the troopers had probable cause to arrest him.

      Bartlett has potentially established a claim of retaliatory arrest in violation of

the First Amendment because 1) he has “demonstrate[d] that the officers’ conduct

would chill a person of ordinary firmness from future First Amendment activity”

and 2) the evidence that he has advanced would enable him “ultimately to prove

that the officers’ desire to chill his speech was a but-for cause of their allegedly

unlawful conduct.” Id. at 1193.


                                            5
         Regarding the first prong of the test, we have held that an arrest in retaliation

for the exercise of free speech is sufficient to chill speech. Lacey v. Maricopa Cty.,

693 F.3d 896, 917 (9th Cir. 2012). Regarding the second prong, we have held that,

once a plaintiff has provided “sufficient evidence for a jury to find that the

officers’ retaliatory motive was a but-for cause of their action,” “the issue of

causation ultimately should be determined by a trier of fact.” Ford, 706 F.3d at

1194. Construing the facts in the light most favorable to Bartlett, he has advanced

sufficient evidence to meet this standard. Most importantly, Bartlett alleged that

Sergeant Nieves said “bet you wish you would have talked to me now” after his

arrest. This statement, if true, could enable a reasonable jury to find that Sergeant

Nieves arrested Bartlett in retaliation for his refusal to answer Sergeant Nieves’s

questions earlier in the evening. We therefore conclude that the district court erred

in granting summary judgment for the troopers on Bartlett’s retaliatory arrest

claim.

         Each party to bear its own costs.

         AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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