                                                                           FILED
                                                                            JUL 30 2010
                               NOT FOR PUBLICATION
                                                                       MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                       UNITED STATES COURT OF APPEALS

                               FOR THE NINTH CIRCUIT



DIANA JEAN STEINMETZ,                             No. 09-35657

                 Plaintiff - Appellant,           D.C. No. 3:08-cv-05485-BHS-1

  v.
                                                  MEMORANDUM *
CITY OF CAMAS, OFFICER KYLE
ISAAK, OFFICER DEBRAH FARLAND,
and SGT. SHYLA NELSON,

                 Defendants - Appellees.



                      Appeal from the United States District Court
                        for the Western District of Washington
                      Benjamin H. Settle, District Judge, Presiding

                           Argued and Submitted July 16, 2010
                                  Seattle, Washington

Before: RYMER and N.R. SMITH, Circuit Judges, and HART, District Judge.**




            *
                 This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
            **
                  The Honorable William Hart, United States District Judge for the
Northern District of Illinois, sitting by designation.
          Diana Rain Steinmetz appeals the summary judgment in favor of the

officers involved in her arrest. As they are entitled to qualified immunity, we

affirm.

          Courts consider two questions in deciding qualified immunity:

(1) whether the facts taken in the light most favorable to the party asserting injury

show the officer’s conducted violated a constitutional right; and (2) whether the

right was clearly established in light of the specific context of the case. Saucier v.

Katz, 533 U.S. 194, 201 (2001). We believe this case is best resolved by

considering step two of the inquiry, that is, whether the right was clearly

established. See Pearson v. Callahan, 129 S. Ct. 808, 812 (2009). The dispositive

query is “whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier, 533 U.S. at 202.

          A reasonable officer in Isaak’s shoes would not have believed that

probable cause to arrest Steinmetz was lacking. See RCW 10.31.100(2)(c).

Steinmetz admitted to clawing her husband’s neck; Earl called 911; Earl had

visible claw marks on his neck; Steinmetz lacked any injury similar to his; and her

husband’s story was clearer and more consistent than hers. A reasonable officer

would not have believed that probable cause was dissipated because Steinmetz

wanted an officer to talk to a third-party, who had no percipient knowledge of the


                                           2
incident, over the telephone. Nor would Isaak have been alerted by clearly

established law that, given probable cause to believe Steinmetz had assaulted her

husband, he was nevertheless obliged to investigate whether an affirmative defense

was applicable. See Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003)

(arresting officer not required to investigate and determine that an affirmative

defense is inapplicable before arresting a person for whom there is otherwise

probable cause to arrest). While a reasonable officer would not have relied just on

Earl’s claim to being the victim of a crime, see Arpin v. Santa Clara Valley Transp.

Agency, 261 F.3d 912, 925 (9th Cir. 2001), Isaak didn’t do this; he interviewed

both parties, twice, and considered their relative injuries as well as the coherency

of their accounts.

          In sum, the officers are entitled to qualified immunity because it would

not have been clear to them they lacked probable cause or failed to conduct an

adequate investigation.

          Given this disposition, we do not need to reach any issue arising out of

the Release and Dismissal Agreement.

          AFFIRMED.




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