                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 11 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARK A. MACKEY,                                  No.   15-55186

              Plaintiff-Appellant,               D.C. No.
                                                 2:11-cv-03560-DMG-JC
 v.

DARREN MEYER, individually and in his            MEMORANDUM*
official capacity as an employee of the
California Highway Patrol,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                      Dolly M. Gee, District Judge, Presiding

                     Argued and Submitted December 9, 2016
                              Pasadena, California

Before: TASHIMA and PAEZ, Circuit Judges, and FRIEDMAN,** District Judge.

      Mark Mackey (“Mackey”) appeals the district court’s summary judgment in

favor of California Highway Patrol (“CHP”) Officer Darren Meyer (“Meyer”) and


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Paul L. Friedman, United States District Judge for the
District of Columbia, sitting by designation.
the denial of partial summary judgment in his favor. We have jurisdiction pursuant

to 28 U.S.C. § 1291. We review de novo a district court’s grant or denial of

summary judgment, see, e.g., McCormack v. Herzog, 788 F.3d 1017, 1029 (9th

Cir. 2015), and we reverse and remand.

      Mackey was arrested in 2011 while reading scripture outside the Department

of Motor Vehicles’ (“DMV”) office in Hemet, California. A security guard asked

Mackey to leave and he refused. DMV personnel then called the CHP and

requested that Mackey be removed from the property. CHP dispatch called Meyer

and relayed that there was a “preacher [] outside harassing customers waiting in

line [at the DMV] . . . [who] has been asked to leave but is refusing.” Upon

arriving at the DMV, Meyer confirmed with the security guard that Mackey was

the preacher who had refused to leave and then, without asking Mackey any

questions, placed him under arrest.

      Mackey filed suit against Meyer under 42 U.S.C. § 1983 alleging, inter alia,

unlawful arrest in violation of the Fourth Amendment as well as false arrest or

imprisonment under California state law. The parties filed cross-motions for

summary judgment. Meyer argued that he was entitled to qualified immunity

because under the circumstances there was probable cause for Mackey’s arrest and,

even if probable cause did not exist, he acted reasonably. Mackey sought partial


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summary judgment in his favor on those two issues. The district court granted

Meyer’s motion and denied Mackey’s.

      The Fourth Amendment Violation and Qualified Immunity

      “In resolving questions of qualified immunity at summary judgment, courts

engage in a two-pronged inquiry. The first prong asks whether the facts, ‘[t]aken

in the light most favorable to the party asserting the injury, . . . show the officer’s

conduct violated a [federal] right[.]” Tolan v. Cotton, 134 S. Ct. 1861, 1865

(2014) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)) (alterations in original).

“The second prong of the qualified-immunity analysis asks whether the right in

question was ‘clearly established’ at the time of the violation.” Id. at 1866

(quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

             Probable Cause

      First, Meyer violated Mackey’s Fourth Amendment rights because he lacked

probable cause to arrest Mackey for either California Penal Code § 602.1(b)

(“Section 602.1(b)”)—the violation for which he was arrested—or California Code

of Regulations, Title 13, § 1860(a) (“Section 1860(a)”)—the violation for which he

was ultimately charged. “Probable cause exists when, under the totality of the

circumstances known to the arresting officers . . . a prudent person would believe

the suspect had committed a crime.” Dubner v. City & Cty. of S.F., 266 F.3d 959,


                                            3
966 (9th Cir. 2001); see also Crowe v. Cty. of San Diego, 608 F.3d 406, 432 (9th

Cir. 2010).

      “[A] violation of [Section] 602.1[b] has two elements: (1) intentional

interference, and (2) refusal to leave.” Dubner, 266 F.3d at 966. Element one

requires that an individual “intentionally interfere” with a business by “obstructing

or intimidating those attempting to carry on business.” Cal. Penal Code § 602.1(b).

CHP dispatch told Meyer that Mackey was “harassing” customers at the DMV by

preaching, but there was no evidence that Meyer had any knowledge of Mackey

“intentionally interfer[ing] with the business of the [DMV]” prior to his arrival.

See Dubner, 266 F.3d at 959. Upon arrival, Meyer encountered Mackey reading

his bible aloud in a dirt patch, neither obstructing nor intimidating anyone in line.

Meyer avers that Mackey was “yelling at the people waiting in line,” “that there

was obvious verbal confrontation between the group of men and the people

standing in line,” and that the “confrontation was heated and nearing a physical

state.” That version of events1 is completely belied by video and audio footage2

which does not reveal any confrontations whatsoever, and merely shows Mackey


      1
          This includes facts alleged by other declarants submitted on behalf of
Meyer.
      2
        “[There] are no allegations or indications that the video [and audio] was
doctored or altered in any way.” Scott v. Harris, 550 U.S. 372, 378 (2007).
                                           4
reading the bible aloud somewhat apart from people standing in line. See Scott v.

Harris, 590 U.S. 372, 380 (2007). As a result, with the information Meyer

possessed, he lacked probable cause to arrest Mackey for a violation of Section

602.1(b). See Dubner, 266 F.3d at 967.

      A violation of Section 1860(a) likewise has two elements: (1) a

demonstration or gathering, and (2) a lack of a permit. With respect to element

two, Meyer cannot establish probable cause as to Mackey’s lack of a permit.

Meyer and his colleagues stated they had previous experiences with groups

preaching at the DMV without a permit, but that information is not specific enough

to establish probable cause; nowhere does Meyer actually confirm that either he or

his colleagues knew that their prior experiences had specifically involved Mackey

previously preaching without a permit. The statement in Meyer’s declaration that

it “was clear” to him that Mackey lacked a permit is conclusory and contradicted

by the complete lack of evidence that anyone informed him or that he inquired as

to whether Mackey had a permit prior to arresting him. As a result, Meyer lacked

probable cause for the arrest.

             Clearly Established Law

      Having determined that Meyer lacked probable cause for Mackey’s arrest,

we turn to the second prong of the qualified immunity analysis, i.e., whether the


                                          5
law was clearly established at the time of the incident. In addressing that inquiry,

the “‘salient question . . . is whether the state of the law’ at the time of an incident

provided ‘fair warning’ to [Mackey] ‘that [his] alleged conduct was

unconstitutional.’” Tolan, 134 S. Ct. at 1866 (quoting Hope, 536 U.S. at 741)

(alterations omitted). In the context of the Fourth Amendment, “if the officer’s

mistake as to what the law requires is reasonable, [then] the officer is entitled to the

immunity defense.” Saucier, 553 U.S. at 205.

      Here, Meyer’s mistake was unreasonable as both statutes at issue are clear

on their face. First, no reasonable officer would arrest an individual without

ensuring that individual did not have a permit under Section 1860(a). Second, it

was objectively unreasonable for Meyer to think Mackey was obstructing or

intimidating individuals based on the information relayed by the dispatcher in

combination with what he witnessed upon arriving on the scene. We thus conclude

that Meyer is not entitled to qualified immunity.

      State Law Claims

      In addition to Mackey’s constitutional claims, he also seeks damages under

California law for false arrest/imprisonment. The district court erred in its analysis

of Mackey’s false arrest/imprisonment claim by simply relying on its Fourth

Amendment probable cause determination. In California, establishing that the


                                            6
officer had probable cause under the Fourth Amendment is necessary, but

insufficient, to establish that a warrantless misdemeanor arrest was lawful. See,

e.g., Edgerly v. City & Cty. of S.F., 599 F.3d 946, 959 (9th Cir. 2010); see also,

Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990). Under California Penal Code

§ 836(a)(1) (“Section 836(a)(1)”), in order to effectuate a lawful warrantless arrest

for a misdemeanor offense, an officer must have “probable cause to believe that the

person to be arrested has committed [an offense] in the officer’s presence.”

(emphasis added). “Whether the offense is committed in the officer’s presence is

to be determined by the events observable to the officer at the time of the arrest.”

Padilla v. Meese, 229 Cal. Rptr. 310, 312 (Ct. App. 1986) (quoting People v.

Welsch 199 Cal. Rptr. 87, 90 (Ct. App. 1984)).

      The relevant inquiry as to Mackey’s state law claim, then, is whether

Meyer’s arrest complied with Section 836(a)(1). Here, the answer is no. As

discussed supra, Meyer did not personally observe Mackey violating either Section

602.1(b) or Section 1860(a) because he did not witness any obstruction or

intimidation by Mackey nor did he inquire whether Mackey lacked a permit.

      This is not the end of the inquiry, however, as California has an analogue to

qualified immunity. California Penal Code § 847(b)(1) “protects police officers

from civil liability for false arrest or imprisonment arising out of an arrest if the


                                            7
arrest is lawful or the officer has reasonable cause to believe it was lawful.”

(emphasis added). Because “this limitation on [warrantless misdemeanor arrests]

was clearly established by statutory law, [Meyer] did not have ‘reasonable cause to

believe the arrest was lawful’ under state law and [he is] not entitled to immunity

from liability.” Edgerly, 599 F.3d at 946 (quoting Cal. Penal Code § 847(b)(1)).

      For the foregoing reasons, we reverse and remand for further proceedings

consistent with this disposition.

      REVERSED and REMANDED.




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