                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 20 2009

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




                             FOR THE NINTH CIRCUIT



FREDERICK BATES,                                 No. 08-16757

               Plaintiff - Appellant,            D.C. No. 5:06-cv-05302-RMW

  v.
                                                 MEMORANDUM *
CITY OF SAN JOSE; ROBERT DAVIS,
City of San Jose Chief of Police;
ADONNA AMOROSO, City of San Jose
Police Deputy Chief of Police; TUCK
YOUNIS, City of San Jose Police Captain,

               Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Northern District of California
                     Ronald M. Whyte, District Judge, Presiding

                       Argued and Submitted November 6, 2009
                              San Francisco, California


Before:        NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, **
               District Judge.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
      Plaintiff Frederick Bates filed this § 1983 action against the City of San Jose

(“the City”) and several officers of the San Jose Police Department. Bates appeals

the district court’s order granting summary judgment for the defendants. We

affirm.

      We review the grant of a motion for summary judgment de novo. Dreiling

v. America Online Inc., 578 F.3d 995, 1000 (9th Cir. 2009).

      The district court found that the failure to provide Bates a good cause

hearing before denying him a concealed weapons permit deprived him of a

property interest without due process of law in violation of the Fourteenth

Amendment. We hold that Bates’s suit is properly dismissed on the basis of

collateral estoppel as to the City, and qualified immunity as to the individual

officers. Therefore, we need not reach this constitutional question. See Pearson v.

Callahan, 129 S.Ct. 808, 818 (2009) (holding that courts may “exercise their sound

discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case at

hand”).

      The City raised its collateral estoppel claim in its motion for summary

judgment and therefore did not waive it. Compare Harbeson v. Parke Davis, Inc.,

746 F.2d 517, 520 (9th Cir. 1984) (recognizing that the court has “liberally treated


                                           2
an attempt to raise the defense [after the pleadings] as if it were a motion for leave

to file a supplemental answer”) with Kern Oil & Rfg. Co. v. Tenneco Oil Co., 840

F.2d 730, 735 (9th Cir. 1988) (explaining that the liberal treatment in Harbeson

requires that the defense “be raised before trial”).

       Qualified immunity protects government officials from liability so long as “a

reasonable officer could have believed, in light of the clearly established law, that

his conduct was lawful.” Saucier v. Katz, 533 U.S. 194, 194 (2001). Although the

general right to a hearing before denial of a permit under § 12027.1 may have been

clearly established at the time Deputy Chief Amoroso made her determination, the

full contours of the right in circumstances such as Bates’s were not. In Unland v.

Block, 59 Cal. App. 4th 1537 (Ct. App. 1997), a California Court of Appeal

determined that the requirement of a hearing prior to denial of a concealed

weapons permit under § 12027.1 does not apply when an officer has retired

because of a psychological disability under § 12027.1(e). The court’s decision in

Unland demonstrates that it was reasonable for Amoroso to believe that she was

not required to grant a hearing to an officer retiring because of psychological

disability.

       The legislature did not define “psychological disability” in § 12027.1. See

Unland, 59 Cal. App. 4th at 1546. There is no established case law defining what


                                           3
constitutes a “psychological disability,” or the process the official must utilize to

make that determination. It is possible that an objectively reasonable official in

Amoroso’s position may have misunderstood the reason for Bates’s retirement as

fitting within § 12027.1(e). Given the lack of established standards over how to

determine when retirement is due to psychological disability, Amoroso’s mistake

of fact is insufficient to deny her qualified immunity.

      AFFIRMED.




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