                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 29 2014

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



                            FOR THE NINTH CIRCUIT


REGINALD LENARD SMITH,                           No. 12-56690
individually and as a class representative,
                                                 D.C. No. 2:11-cv-10666-GAF-
              Plaintiff - Appellee,              PJW

  v.
                                                 MEMORANDUM*
COUNTY OF LOS ANGELES; et al.,

              Defendants - Appellants.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                       Argued and Submitted August 7, 2014
                               Pasadena, California

Before: WARDLAW, CALLAHAN, and M. SMITH, Circuit Judges.

       Sheriff Lee Baca appeals the district court’s denial of qualified immunity on

his motion for judgment on the pleadings in this putative class action under 42

U.S.C. § 1983. Plaintiff Reginald Smith alleges that he has twice been wrongfully

arrested on a Los Angeles County Superior Court felony warrant issued for another


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
person with a similar name and physical characteristics, resulting in his

incarceration and the denial of his passport application. Smith claims that the Los

Angeles County Sheriff’s Department’s refusal to update its warrant database with

readily available biometric information about warrant subjects and exonerees

violates his Fourth and Fourteenth Amendment rights. The only issue before us is

whether Baca is entitled to qualified immunity regarding Smith’s Fourteenth

Amendment claim based upon alleged violations of his right to international travel.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

      The district court erred in concluding that the law was clearly established so

as to put a reasonable official in Baca’s position on notice that his alleged conduct

deprived Smith of the right to international travel without due process of law. See

Ford v. City of Yakima, 706 F.3d 1188, 1195 (9th Cir. 2013) (per curiam); see also

Green v. City & Cnty. of S.F., 751 F.3d 1039, 1052 (9th Cir. 2014) (requiring

clarity in “the law governing the conduct at issue”). Although the right to

international travel is clearly established in general, see Eunique v. Powell, 302

F.3d 971 (9th Cir. 2002), no law clearly establishes that a state official’s actions

leading to the State Department’s discretionary denial of a passport application

may effect a deprivation of the right. See 22 C.F.R. § 51.60(b)(9).




                                           2
      We decline to decide whether Smith has adequately pleaded a Fourteenth

Amendment violation. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). We

also decline to address the Fourth Amendment issues discussed by the parties. We

conclude only that Sheriff Baca is entitled to qualified immunity because the law

governing Smith’s right to travel claim is not clearly established.

      Sheriff Baca’s motion for judicial notice is DENIED AS MOOT.

      REVERSED AND REMANDED.




                                          3
