                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAY 03 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ALEJANDRA SOLIS,                                 No. 09-35497

             Plaintiff - Appellee,               D.C. No. 2:08-cv-00021-EFS

  v.
                                                 MEMORANDUM*
RONALD J. OULES, Chief of Police, in
his individual capacity,

             Defendant - Appellant,

  and

CITY OF BREWSTER, a municipal
corporation; TIMOTHY RIEB, an Officer,
in his individual capacity,

             Defendants.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Edward F. Shea, District Judge, Presiding

                       Argued and Submitted April 8, 2010
                              Seattle, Washington




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: HAWKINS, LUCERO,** and N.R. SMITH, Circuit Judges.

        Police Chief Ronald Oules (“Oules”) appeals the denial of qualified immunity.

Oules, Officer Timothy Rieb (“Rieb”), and the City of Brewster also appeal denial of

their summary judgment efforts for a determination that Alejandra Solis (“Solis”)

cannot use this 42 U.S.C. § 1983 action to recover attorneys’ fees incurred in her

successful state court defense of criminal charges. We affirm in part, reverse in part,

and remand.

        This case arose from the stop of Solis’s vehicle under Oules’s mistaken belief

that Washington law criminalized cutting through private property to avoid a stop

sign.

        Adhering to Saucier v. Katz, we follow a two-step analysis for a qualified

immunity inquiry, asking first whether a constitutional right was violated on the facts

alleged, “[t]aken in the light most favorable to the party asserting the injury,” and

second, “whether the right was clearly established.” 533 U.S. 194, 201 (2001).

Though Pearson v. Callahan provides us flexibility in deciding which step of the

analysis to address first, 129 S. Ct. 808, 813 (2009), we need not deviate from the




        **
            The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit
Court of Appeals, sitting by designation.

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typical inquiry because whether a constitutional right was violated here is

straightforward.

      Neither of the statutes upon which Oules relies contains any language relating

to “corner cutting” or cutting through private property to allegedly avoid a traffic

control device. See Wash. Rev. Code §§ 46.61.050; 46.61.140. Oules thus violated

Solis’s Fourth Amendment right to be free from unreasonable searches and seizures

when he stopped her vehicle and apparently removed her from it under a law that did

not criminalize her behavior. See Ramirez v. City of Buena Park, 560 F.3d 1012, 1020

(9th Cir. 2009).

      Nevertheless, we find that Oules’s mistake would not have been necessarily

clear to a reasonable officer in this circumstance. See Saucier, 533 U.S. at 202. One

of the statutes Oules relied on requires drivers to “obey” a traffic control device.

Wash. Rev. Code § 46.61.050. The uncertainty on the face of the statute and Oules’s

inquiry to the Washington State Patrol provide a sufficient basis for Oules’s

reasonable belief that his conduct was lawful. See Kulas v. Valdez, 159 F.3d 453, 456

(9th Cir. 1998). Oules should have therefore enjoyed qualified immunity for the

wrongful stop.




                                         3
       We note, however, that our conclusion on immunity for the legality of the stop

says nothing about whether Oules’s may or may not have used excessive force once

he stopped Solis.

       Oules, Rieb, and the City of Brewster also appeal the district court’s denial of

summary judgment on their claim that they cannot be liable for Solis’s attorneys’ fees

for her successful defense of the state criminal charges arising out of these events.

Citing our decision in Smiddy v. Varney, they claim we have jurisdiction to hear the

appeal of this issue because it involves an “immunity.” See 803 F.2d 1469 (9th Cir.

1986), modified on denial of rehearing, 811 F.2d 504 (1987). But unlike Smiddy, in

which the plaintiff already had a civil trial concerning his § 1983 action for damages,

here there are only two partial denials of summary judgment. Therefore, we lack

jurisdiction unless the appeal of this issue fits within the collateral order doctrine. See

28 U.S.C. § 1291; Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

      We do not have jurisdiction under the collateral order doctrine to review

whether the recovery of fees would be an appropriate component of Solis’s damage

claim. The denial of summary judgment on liability for her state court defense costs

is tentative and is merely a measure of damages that can be reviewed at a later stage:

after a liability determination. See Swint v. Chambers County Comm’n, 514 U.S. 35,

41-42 (1995).


                                            4
      Finally, we reject Solis’s assertion that she is a “prevailing party” in a § 1983

action, thus meeting the requirements under 42 U.S.C. § 1988 to be eligible for

attorneys’ fees for this appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED. Each party

shall bear its own costs on appeal.




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