Graves v. City of Coeur D’Alene, 339 F.3d 828 (2003)03 Cal. Da.docx

Graves v. City of Coeur D’Alene, 339 F.3d 828 (2003)
03 Cal. Daily Op. Serv. 6841, 2003 Daily Journal D.A.R. 8604
© 2018 Thomson Reuters. No claim to original U.S.
Government Works.
KeyCite Red Flag - Severe Negative TreatmentAbrogation
Recognized by Thomas v. Dillard, 9th Cir.(Cal.), April 5, 2016
339 F.3d 828
United States Court of Appeals,
Ninth Circuit.
Lori GRAVES; Jeffrey Kerns; Kenneth Malone, Plaintiffs,
and
Jonathan Crowell; Gary Bizek, Plaintiffs–Appellants,
v.
CITY OF COEUR D’ALENE; Coeur D’Alene Police
Department; Coeur D’Alene City Attorneys Office; Jeffrey
Jones; Ken Timmons, individually and in his professional
capacity as a captain of the Coeur D’Alene Police Department;
Carl Bergh, individually and in his professional capacity as a
captain of the Coeur D’Alene Police Department; Defendants,
and
Greg Surplus, individually and in his professional capacity as a
lieutenant of the Coeur D’Alene Police Department; D.C.
Dixon, individually and in his professional capacity as an
officer of the Coeur D’Alene Police Department; R. Turner,
individually and in his professional capacity as a detective of
the Coeur D’Alene Police Department, Defendants–Appellees.
No. 02–35119.

|
Argued and Submitted May 9, 2003.
|
Filed Aug. 1, 2003.
Synopsis
Parade protesters brought § 1983 action asserting, inter alia,
false arrest claims against three law enforcement officers. The
United States District Court for the District of Idaho, Edward J.
Lodge, Chief Judge, entered judgment on jury verdict in
officers’ favor and subsequently denied motions for judgment
notwithstanding the verdict and for new trial. Protesters
appealed. The Court of Appeals, Gould, Circuit Judge, held
that: (1) as a matter of apparent first impression, procedural
flaw in filing of motion for judgment notwithstanding the
verdict was waived; (2) whether undercover officer arrested
protester was issue for jury; (3) protester’s refusal to give his
name to officer did not provide valid basis for arrest for
resisting and obstructing officer; (4) officer did not have
probable cause to search protester’s backpack; (5) officer was
protected from § 1983 liability by qualified immunity; and (6)
whether supervisor played affirmative role in protester’s arrest
was question for jury.
Affirmed.
West Headnotes (34)
[1]
Federal CourtsTaking case or question from jury; judgment as a
matter of law

Ruling on motion for judgment notwithstanding the verdict is
reviewed de novo. Fed.Rules Civ.Proc.Rule 50(b), 28 U.S.C.A.
Cases that cite this headnote
[2]
Federal Civil ProcedureConclusions or inferences from evidence
Federal Civil ProcedureEvidence
Judgment as a matter of law is proper if the evidence, viewed in
the light most favorable to the nonmoving party, permits only
one reasonable conclusion. Fed.Rules Civ.Proc.Rule 50(b), 28
U.S.C.A.
6 Cases that cite this headnote
[3]
matter of law
Ordinarily, when a party files a procedurally flawed motion for
judgment notwithstanding the verdict, challenge to jury’s
verdict is reviewed only for plain error and reversal is proper
only to avoid a manifest miscarriage of justice. Fed.Rules
Civ.Proc.Rule 50(b), 28 U.S.C.A.
[4]

matter of law
matter of law
When party does not object to an improperly filed post-verdict
motion for judgment as a matter of law, and does not raise
before the trial court the issue of default for failure to abide by
rule requiring filing of pre-verdict motion for judgment as a
matter of law, procedural flaw in post-verdict motion is waived,
and Court of Appeals will review denial of such a motion de
novo under a sufficiency of the evidence standard. Fed.Rules
Civ.Proc.Rule 50(a, b), 28 U.S.C.A.
[5]
Federal CourtsNew Trial, Rehearing, or Reconsideration
Denial of motion for new trial is reviewed for abuse of
discretion.
[6]
Federal CourtsNew Trial, Rehearing, or Reconsideration
Reversal of denial of motion for new trial is proper if district

court made a legal error in applying the standard for a new trial,
or if the record contains no evidence in support of the verdict.
[7]
Civil RightsCriminal law enforcement; prisons
Whether undercover police officer arrested parade protester, and
thus could be held liable for protester’s allegedly false arrest,
was question for jury in protester’s § 1983 action when
undercover officer alerted other officers to protester’s
suspicious appearance, but did not tell officers to take protester
into custody or do so himself. U.S.C.A. Const.Amend. 4; 42
U.S.C.A. § 1983; Fed.Rules Civ.Proc.Rules 50(b), 59, 28
U.S.C.A.
[8]
That undercover police officer who alerted other officers to
suspicious appearance of parade protester issued citation to
protester upon visiting him at jail, following his arrest by other
officers, did not make undercover officer the arresting officer
for purposes of § 1983 liability for alleged false arrest.
U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.

[9]
ArrestGrounds for warrantless arrest in general
An arrest is unlawful unless there is probable cause to support
the arrest. U.S.C.A. Const.Amend. 4.
[10]
ArrestAppearance, acts, and statements of persons arrested
Obstructing JusticeProviding false name or other information to
officer
Obstructing JusticeLegality of arrest
Parade protester had clearly established Fourth Amendment
right not to identify himself to police officer, and therefore his
refusal to give his name to officer did not provide valid basis
for arrest, under Idaho law, for resisting and obstructing officer.
U.S.C.A. Const.Amend. 4; I.C. § 18–705.
[11]
Parade protester had constitutional right to refuse consent to

unlawful search, and therefore his refusal to consent to search
of his backpack provided basis for arrest for resisting and
obstructing officer, under Idaho law, only if officer had right to
search independent of protester’s refusal. U.S.C.A.
Const.Amend. 4; I.C. § 18–705.
[12]
Searches and SeizuresProbable Cause
In the ordinary case, Fourth Amendment’s reasonableness
restriction requires that searches be supported by probable
cause. U.S.C.A. Const.Amend. 4.
[13]
ArrestWhat constitutes such cause in general
“Probable cause” means more than a bare suspicion, and exists
to justify search when the officer’s knowledge of reasonably
trustworthy information is sufficient to warrant a prudent
person to believe that an offense has been or is being
committed. U.S.C.A. Const.Amend. 4.
[14]

ArrestGrounds for warrantless arrest in general
Search or seizure is ordinarily unreasonable in the absence of
individualized suspicion of wrongdoing. U.S.C.A.
Const.Amend. 4.
[15]
ArrestTime of existence; after-acquired information
Neither parade protester’s refusal to consent to officer’s search
of his backpack nor his refusal to give his name to officer could
be considered in determining whether officer had probable
cause to arrest protester and search his backpack. U.S.C.A.
Const.Amend. 4.
[16]
Existence of probable cause to search is considered in light of
the totality of the circumstances. U.S.C.A. Const.Amend. 4.

[17]
ArrestNecessity for cause for arrest
Police officer had reasonable suspicion justifying investigatory
stop of parade protester, given officer’s observations that
protester was carrying heavy backpack with two cylindrical-
shaped bulges at its base, dangerously hostile atmosphere of
parade by group espousing controversial political views, to
which opposing group had threatened violent response, and
officer’s knowledge of incident in which backpack bomb
exploded during international sports event and of recent nearby
theft of explosive materials. U.S.C.A. Const.Amend. 4.
[18]
ArrestPersonal knowledge or observation in general
ArrestPossession, disposal, or concealment of article; flight or
hiding
Although circumstances justified officer’s investigatory stop of
parade protester carrying heavy backpack with two cylindrical-
shaped bulges at its base, in light of dangerously hostile
atmosphere of parade being conducted by group espousing
controversial political views, officer’s knowledge of prior
backpack bombing at sports event, and officer’s knowledge of
recent theft of explosive materials, officer did not have
sufficient individualized suspicion that protester carried
explosive device, and thus lacked probable cause to arrest
protester and search backpack. U.S.C.A. Const.Amend. 4.

[19]
Parade protester’s conduct in becoming increasingly loud during
encounter in which police officer sought to search protester’s
backpack did not provide basis for finding that officer had
increased individualized suspicion of criminal activity by
protester, such that circumstances gave rise to probable cause to
arrest protester and search backpack, inasmuch as protester was
primarily asserting his Fourth Amendment right not to be
searched and was speaking loudly to generate witnesses to his
situation. U.S.C.A. Const.Amend. 4.
[20]
For § 1983 claims, the existence of probable cause is a question
for the jury if reasonable persons might reach different
conclusions on the facts. U.S.C.A. Const.Amend. 4; 42
U.S.C.A. § 1983.
[21]

Good motive on police officer’s part is not sufficient to show
probable cause for search. U.S.C.A. Const.Amend. 4.
[22]
Searches and SeizuresNecessity of and preference for warrant,
and exceptions in general
Warrantless “special needs” searches must be exercised
according to standard criteria and on the basis of something
other than suspicion of evidence of criminal activity. U.S.C.A.
Const.Amend. 4.
[23]
Searches and SeizuresNecessity of and preference for warrant,
and exceptions in general
“Special needs” doctrine did not apply to support legality of
city police officer’s demand to search parade protester’s
backpack, in that police had no organized methodology for
systematically checking all individuals who entered area of
parade and officers possessed unguided discretion in seeking to
search bags of those attending parade. U.S.C.A. Const.Amend.
4.

[24]
Federal CourtsQuestions Considered
Court of Appeals would address issue of qualified immunity
defense sua sponte, after determining that the evidence did not
support jury verdict finding that officer’s arrest of parade
protester and search of his backpack was supported by probable
cause, given that defendants raised defense in answer to
complaint, issue was one of law, and the record had been fully
developed below. U.S.C.A. Const.Amend. 4.
[25]
Federal CourtsTheory and Grounds of Decision of Lower Court
Court of Appeals may affirm the decision of the district court
on any ground supported by the record.
[26]
Federal CourtsIn general; necessity

Court of Appeals generally does not address issues raised for
the first time on appeal.
[27]
Civil RightsGovernment Agencies and Officers
Civil RightsGood faith and reasonableness; knowledge and
clarity of law; motive and intent, in general
Under two-step approach to evaluating qualified immunity
claims, court first considers whether a constitutional right was
violated by defendant’s conduct, then asks whether the right
was clearly established.
[28]
Civil RightsGood faith and reasonableness; knowledge and
clarity of law; motive and intent, in general
Whether a right is clearly established for purposes of qualified
immunity is an inquiry that must be undertaken in light of the
specific context of the case, not as a broad general proposition;
in other words, the contours of the right must be sufficiently
clear that a reasonable official would understand that what he is
doing violates that right.

[29]
Federal CourtsConduct of trial in general; evidence; judgment
Ordinarily, in considering qualified immunity defense, Court of
Appeals views facts in the light most favorable to the party
asserting the injury.
[30]
Civil RightsSheriffs, police, and other peace officers
Reasonable officer in police officer’s situation could have
believed that he had probable cause to search for suspected
explosives in parade protester’s backpack, and therefore officer
was entitled to qualified immunity from § 1983 liability for
unlawful arrest and search of backpack, when officer was
confronted with incendiary situation in which violent hate group
was about to march down city streets through crowd of
impassioned and potentially violent protesters and supporters,
officer knew that stolen explosives were at large and could be
present at parade, and officer, after observing protester’s heavy
backpack, with cylindrical bulges at its base, was left with
unpleasant choice between arresting protester and searching
backpack or allowing protester to proceed into crowd despite
officer’s suspicion that he was carrying explosives. U.S.C.A.
Const.Amend. 4; 42 U.S.C.A. § 1983.

[31]
Civil RightsSheriffs, police, and other peace officers
Qualified immunity defense recognizes that officers make
probable cause assessments in the field under pressure and
therefore affords the officer leeway, permitting a reasonable
mistake without resulting individual liability of the officer,
when the law is not clearly established.
[32]
Civil RightsVicarious liability and respondeat superior in
general; supervisory liability in general
Under § 1983, liability cannot be imposed on supervising
officers under respondeat superior theory of liability; instead,
supervising officers can be held liable under § 1983 only if they
play an affirmative part in the alleged deprivation of
constitutional rights, by setting in motion a series of acts by
others which supervisor knew, or reasonably should have
known, would cause others to inflict the constitutional injury.
42 U.S.C.A. § 1983.
[33]

Whether police officer’s supervisor played affirmative part in
unlawful arrest of parade protester and search of protester’s
backpack, or whether officer decided to make arrest
independent of supervisor, was question for jury in protester’s §
1983 action for false arrest when, in response to officer’s radio
communication that protester had refused to consent to search
of backpack, supervisor told officer to arrest protester if he did
not consent to search, but officer did not provide supervisor
with any information as to why he wanted to conduct search.
U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.
[34]
Federal Civil ProcedureVerdict or Findings Contrary to Law or
Evidence
Jury’s conclusion that police officer’s supervisor did not act
affirmatively and set parade protester’s arrest into motion was
supported by evidence that officer did not provide supervisor
with information as to why he wanted to search protester’s
backpack, which made it plausible that officer did not interpret
supervisor’s statement that he should arrest protester if
protester did not consent to search as assessment of legality of
arrest, and therefore protester was not entitled to new trial on §
1983 claim that supervisor violated his Fourth Amendment
rights. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.

Attorneys and Law Firms
*832 Lawrence A. Hildes, Berkeley, CA, and Bernard Zahela,
Wildlands Interstate Legal Defense Fund, Boise, ID, for the
plaintiffs.
Randall R. Adams, Quane Smith L.L.P., Coeur d’Alene, ID, for
the defendants.
Appeal from the United States District Court for the District of
Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No.
CV–99–00138–EJL.
Before: CUDAHY,*O’SCANNLAIN, and GOULD, Circuit
Judges.
Opinion
OPINION
GOULD, Circuit Judge:
Plaintiffs Jonathan Crowell and Gary Bizek were arrested while
protesting an *833 Aryan Nations parade in Coeur d’Alene,
Idaho, on July 18, 1998. Crowell was arrested for obstruction of
justice after he refused to consent to the search of his backpack.
Bizek was arrested for possession of a deadly weapon after he
aroused suspicion by wearing attire that covered his face and by
walking without putting weight on the cane he carried. Crowell
was prosecuted and tried by a jury for obstructing an officer on
April 14 and 15, 1999, but was not convicted in this trial
because of a hung jury.1 Bizek received a citation shortly after
his arrest on July 18, 1998; his case was dismissed by the
county prosecutor after arraignment.
Plaintiffs on April 7, 1999, filed a complaint under 42 U.S.C. §
1983 in the United States District Court for the District of
Idaho.2 Both Bizek and Crowell alleged, inter alia, claims of
false arrest in violation of the Fourth Amendment. The
defendants are law enforcement officers with the City of Coeur
d’Alene: Defendant Daniel Dixon, Defendant Gregory Surplus,
and Defendant Robert Turner.3 After a three-day jury trial of
plaintiffs’ civil rights claims, the jury returned a verdict for the

defendants, finding no liability. Plaintiffs filed a post-trial
motion for judgment notwithstanding the verdict pursuant to
Fed.R.Civ.P. 50 and, in the alternative, a motion for a new trial
pursuant to Fed.R.Civ.P. 59. The district court denied those
motions, concluding that sufficient evidence was presented to
the jury to support its verdict, that reasonable minds could
differ on the evidence, and that the verdict was not contrary to
the great weight of evidence. On appeal, the plaintiffs challenge
the district court’s denial of their motion for judgment
notwithstanding the verdict and denial of their motion for a new
trial.
Applying the standards for relief of judgment notwithstanding
the verdict and new trial, to resolve this case we must consider
the evidence that went to the jury and determine whether
defendant Turner arrested Bizek; whether defendant Surplus, as
a supervising officer, acted affirmatively to deprive Crowell of
his constitutional rights; and whether defendant Dixon had the
legal authority to search Crowell’s backpack and therefore to
arrest Dixon for obstruction of justice when Crowell refused to
consent to the search. We have jurisdiction, 28 U.S.C. § 1291,
and we affirm.
I
Given the jury verdict for defendants, the defendants are
“entitled to have the *834 evidence viewed in a light most
favorable to [them], resolving conflicts in [their] favor and
giving [them] the benefit of reasonable inferences, to determine
whether substantial evidence supported the verdict.” Murphy v.
F.D.I.C., 38 F.3d 1490, 1495 (9th Cir.1994).4 For this reason,
the factual statement herein is based largely on the testimony of
the defendants, even though their testimony was contradicted in
part by Bizek and Crowell. See id.
Members of a group known as Aryan Nations planned a parade

through the downtown streets of Coeur d’Alene for July 18,
1998. This group, which expressly adopts, champions, and
advances Nazi principles and philosophy, was known by law
enforcement officers in Coeur d’Alene to have a “propensity for
violence.”
There was community controversy in the days leading up to the
parade. Law enforcement agencies had gathered intelligence
regarding groups that might come to Coeur d’Alene to support
or protest the Aryan Nations.5 The Jewish Defense League, a
self-described “controversial” group that condones the use of
“strength, force, and violence,” indicated through its chairman,
Irv Rubin, that the Jewish Defense League would protest and
warned explicitly that the streets would “run red with blood.”
Other groups and individuals were also expected to protest.
Plaintiffs Bizek and Crowell, who did not previously know each
other, were among several hundred people gathering in Coeur
d’Alene on July 18, 1998, to protest the Aryan Nations group
and its hate-filled message.6 The law enforcement community
was apprehensive about the march and protest. City police, state
troopers, and other law enforcement personnel were worried
that they and members of the public were at risk and would be
injured before the day was done.
Law enforcement agencies also had received intelligence in a
teletype that explosives had been stolen from a construction site
in Ada County a few days before the parade.7 Although Ada
County is in southern Idaho and Coeur d’Alene is in northern
Idaho, about 300 miles away, the Ada County Sheriff’s Office
put northern Idaho agencies on notice of the theft of the
explosives.8 And while the record does not show that
defendants Surplus and Dixon knew the type of explosives
stolen, their testimony shows that they were concerned with
protecting the crowd from the threat of explosive disruption and
injury. Thus, fear and apprehension about the parade and protest
were intensified. With this background, we turn to further facts

particular *835 to the claims of plaintiffs Bizek and Crowell.
A
Plaintiff Gary Bizek injured his knee a few weeks before the
parade and carried a cane to help him walk in Coeur d’Alene.
On the day of the parade, Bizek wore a T-shirt with a
confrontational message that said “Take your f [ ]ing race war
and shove it up your [ ].” (expletives deleted). Bizek also
covered his face with a T-shirt because he did not want to be
recognized by the “media or other skinheads.”
Defendant Turner was assigned as a detective with the
Interagency Drug Task Force on the day of the parade. He was
dressed in civilian clothes and was responsible for observing
and reporting suspicious activity. Turner described himself as
engaged in “surveillance eyes and ears,” to be “unseen, unheard
of unless [he] saw something to be pointed out.” When Turner
reported suspicious activity of any individual, a uniformed
officer was then to contact the described individual for further
investigation. Turner testified that his job was not to make
arrests, because that would thwart his undercover role.
Before the parade began, Turner while serving undercover
noticed Bizek in a group and became suspicious that Bizek’s
cane might be a weapon:
Well, I immediately noticed their attire. There was a group of at
least four individuals dressed the same. I noticed the chains
around their waists, ankles and a couple of them had their faces
covered. And then the writing on the back of the shirt and so
that immediately I recognized that as something suspicious to
me.... I noticed walking behind him that he was not using the
cane, leaning on it at all, he wasn’t putting any weight on it.
Turner called in a description of Bizek over the radio and said
that Bizek was suspicious. Other officers stopped Bizek. Turner

confirmed the identification and then walked away. Turner did
not tell anyone to arrest Bizek, did not place handcuffs on
Bizek, did not tell Bizek he was under arrest, and did not help
transport Bizek to jail.9 After he was “contacted,” Bizek was
arrested and taken to the holding facilities. He was not told why
he was arrested and he could not identify the officer who
arrested him.
After the parade and protest, another deputy told Turner that
Turner was listed on the booking sheet as the arresting officer
in Bizek’s arrest. Turner went to the jail, talked to Bizek, and
then issued Bizek a citation after consulting with Turner’s
sergeant. Turner cited Bizek for possession with intent to
assault with a deadly weapon, his cane, under Idaho Code § 18–
3301. Bizek signed his citation and was released. Turner wrote
the police report.
B
On the morning of July 18, 1996, Crowell drove to Coeur
d’Alene from Moscow, Idaho, with a group of about 50 people
who planned to demonstrate against the Aryan Nations parade.
Crowell carried a sign that said “Earth first, hatred last.” He
also carried a heavy backpack. Crowell testified that “[i]t was
definitely loaded with stuff. I carry a very heavy backpack.”
When Crowell first approached the parade area, several officers
asked the crowd: “Has anybody checked your backpack *836
yet?” Crowell was aware that some people opened their bags
voluntarily, while others kept walking. Crowell did not open his
backpack because felt he had a right not to be searched and he
kept walking without stopping for the officers.
Later, as Crowell and some friends within his group continued
to make their way toward the parade, Trooper Lind from the
Idaho State Police Department approached Crowell and asked to

search his backpack. Crowell refused and again continued
walking. Lind asked to search Crowell’s backpack several
times. Lind told Crowell that he wanted to search for “public
safety” and that the police wanted to “check backpacks for
bombs and weapons.” Lind told Crowell that if Crowell did not
comply with the request to search, Crowell would have to keep
moving. Crowell walked in the direction that Lind told him to
walk.
As Crowell was walking with Trooper Lind, defendant Dixon,
an officer with the City of Coeur d’Alene police department,
approached and asked if there was a problem. There were
already large numbers of spectators “lining the streets” and
“police barrier tape” on the street and, in Dixon’s words “a buzz
in the air with ... tension, hostility.” Lind explained to Dixon
that Crowell “would not let him look in his backpack.” Dixon
testified that when he observed Crowell’s backpack, he noticed
that “[i]t was heavy” and that there were two “round cylindrical
type objects in the bottom of the backpack.” Dixon also testified
that he believed he had probable cause to search Crowell’s
backpack:
In my mind, I had probable cause to believe that there were
explosives possibly in a coffee can or the cylindrical-type
objects in the bottom of the backpack [that] were packed side by
side, the heaviness of it, again the teletype from Ada County
Sheriff’s Office, attention Northern Idaho, the Olympic Park
bombings.10
Other than the heavy nature of the backpack and the cylindrical
shape of objects observed to be in the backpack, Dixon testified
that he had no other basis particular to Crowell to believe that
Crowell was carrying a bomb. Dixon said that Crowell was not
otherwise suspicious.
Dixon demanded that Crowell consent to a search of his
backpack.11 Crowell did not consent to search. And, Crowell,

though explicitly asked, declined to give his name. Dixon
viewed Crowell as “defiant,” he was concerned that
[Crowell] was getting louder and louder saying, ‘This is a
violation of my civil rights.’ He was certainly drawing a crowd
of media people to him and more attention upon himself. I could
feel the tension in the air just getting thicker and thicker around
me, which I did not want. I had a choice that hey, either I arrest
him or I let him go. It is one of those two. I could let him go, he
gets down by the resort plaza and there could be explosion.
They would say ‘hey, why didn’t you deal with it at the time?’
Or I could act as I did and take an arrest, which I did.
Although Dixon described Crowell as “defiant,” Dixon also
testified that Crowell did not call Dixon any names, swear at
*837 him, threaten him, physically attack him, verbally attack
him, or insult him. Crowell’s “defiance” was, according to
Dixon, primarily Crowell’s loud refusal to consent to search.
Dixon then radioed his supervisor, Lieutenant Hotchkiss of the
Coeur d’Alene police, and explained that a man with a backpack
refused consent. According to Dixon, Hotchkiss told Dixon to
“deal with it.” A few seconds later defendant Surplus, also of
the Coeur d’Alene police, got on the radio and told Dixon “we
need to look at that pack and if he won’t let us look in the pack,
[you] need [ ] to arrest him.” There was no further
communication with Hotchkiss or Surplus.
After getting off the radio, Dixon told Crowell that if he did not
consent to search, he would be arrested for obstructing an
officer. Crowell responded that it was his Fourth Amendment
right not to be searched. Dixon then placed Crowell under
arrest, took Crowell’s backpack off of him, and put flex cuffs
on Crowell’s hands. Crowell chose passively to resist the arrest
by falling to the ground. Dixon then checked the backpack and
found nothing in it other than peanut butter, jelly, applesauce,
bread, sneakers and clothes.

After Crowell was arrested, he dropped to the ground in protest.
Dixon and Lind then each grabbed an arm and dragged Crowell
along the sidewalk to the police van. Crowell, who was not
wearing shoes, told the officers that they were hurting his legs
and that he would like to put his shoes on.12 The officers asked
Crowell if he wanted to walk. Crowell indicated that he did not
want to walk and thus continued his protest. Dixon and Lind
continued to move Crowell because tension was mounting in the
crowd and they wanted to get him out of there. After about one
block, they arrived at the police van and put Crowell into the
van. He was taken to a holding facility and then to jail.
C
Trial of the claims asserted by Bizek and Crowell began on
September 4, 2001, and ended two days later on September 6,
2001. During trial, the jury heard testimony from Lina Gooley,
a friend of Crowell who was with him at the Aryan Nations
parade; plaintiff Jonathan Crowell; Jennifer Riego, a friend of
Bizek who saw him get arrested at the parade; plaintiff Gary
Bizek; defendant Robert Turner; James Patrick Melton, a police
officer for the Kootenai County Sheriff’s Department who was
Turner’s partner during the parade; defendant Gregory Surplus;
and defendant Daniel Dixon. After deliberation upon
unchallenged jury instructions, the jury returned a verdict
finding no liability as to each defendant. Judgment was entered
for defendants on September 18, 2001. Plaintiffs then filed a
post verdict motion for judgment notwithstanding the verdict
and, in the alternative, for a new trial.
In denying the motions, the district court noted that “if
reasonable minds could differ over the verdict, [judgment not
withstanding the verdict] is improper,” citing Peterson v.
Kennedy, 771 F.2d 1244, 1252 (9th Cir.1985). The district court
stressed:

Based on the above standard, the Court finds substantial
evidence exists to support the jury’s verdict. While reasonable
minds could differ on the verdict, substantial evidence was
presented to allow reasonable minds to reach the verdict
rendered in this case. This court *838 will not overturn the
jury’s verdict which resolved the conflicts presented.
The district court also rejected the motion for new trial pursuant
to Fed.R.Civ.P. 59. With regard to Bizek, the district court held
that “the verdict is not contrary to the clear weight of the
evidence and the verdict does not result in the miscarriage of
justice” because the jury was presented with credible testimony
from defendant Turner and his partner, who testified that Turner
did not arrest Bizek. With regard to Crowell, the district court
opined that Crowell’s claims were “a closer call” but that the
credible testimony of defendant Dixon, combined with other
facts presented, “supports the probable cause determination for
the arrest.” The district court declined to “grant a new trial
merely because a jury could have drawn different inferences or
conclusions from the facts.”
II
[1][2] The district court’s ruling on a motion for judgment
notwithstanding the verdict, made under Fed.R.Civ.P. 50(b), is
reviewed de novo. See Janes v. Wal–Mart Stores, Inc., 279 F.3d
883, 886 (9th Cir.2002). Judgment as a matter of law is proper
if the evidence, viewed in the light most favorable to the
nonmoving party, permits only one reasonable conclusion. See
McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir.2000). See
also Murphy, 38 F.3d at 1495 (recognizing that “[w]e are
required to sustain a judgment based on a jury verdict if it was
supported by ... such relevant evidence as reasonable minds
might accept as adequate to support a conclusion.”) (internal
quotation marks omitted).

[3] It appears from the record, though neither party raises this
issue, that the plaintiffs in this case did not move for a
judgment as a matter of law under Fed.R.Civ.P. 50(a). The
motion later made by plaintiffs pursuant to Fed.R.Civ.P. 50(b)
was therefore procedurally flawed. Janes, 279 F.3d at 886–87
(recognizing that because Wal–Mart failed to move for
judgment as a matter of law before submission of the case to the
jury, “Wal–Mart failed to comply with the procedural
prerequisite for renewing its motion for [judgment as a matter
of law] after trial. The Ninth Circuit construes this requirement
strictly”) (internal citations omitted). Ordinarily, when a party
files a procedurally flawed Rule 50(b) motion, the challenge to
the jury’s verdict is reviewed only for plain error and reversal is
proper only to avoid a “manifest miscarriage of justice.” See id.
at 888. See also Bird v. Glacier Elec. Coop., Inc., 255 F.3d
1136, 1148 (9th Cir.2001) (“We will review for plain or
fundamental error [in a civil case] ... where the integrity or
fundamental fairness of the proceedings in the trial court is
called into serious question”).
This case, however, presents additional circumstances that have
not before been considered by us: Here the defendants did not
object to the district court when the plaintiffs filed a Rule 50(b)
motion without having filed a Rule 50(a) motion for directed
verdict. Accordingly, the district court ruled on the Rule 50(b)
motion as if a motion for directed verdict had been properly
filed.13
[4] Under these circumstances, we will follow the same standard
applied by the district court. We join the unanimous authority of
our sister circuits and hold that where a defendant does not
object to an improperly-filed Rule 50(b) motion, and does not
raise the issue of default for *839 failure to abide Rule 50(a)
before the trial court, then the procedural flaw in the Rule 50(b)
motion is waived and we will review the district court’s denial
of such a Rule 50(b) motion de novo under a sufficiency of the

evidence standard. See Whelan v. Abell, 48 F.3d 1247, 1253
(D.C.Cir.1995). See also, Thomas v. Texas Dep’t of Criminal
Justice, 297 F.3d 361, 367 (5th Cir.2002) (reviewing a
procedurally-flawed Rule 50(b) motion de novo under a
sufficiency of the evidence standard because “[a] party who
does not raise the waiver bar when opposing a [R]ule 50(b)
motion may not raise that bar on appeal”); Guides, Ltd. v.
Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1076 n. 3
(10th Cir.2002) (same); Williams v. Runyon, 130 F.3d 568, 572
(3d Cir.1997) (same); Gibeau v. Nellis, 18 F.3d 107, 109 (2d
Cir.1994) (same); Collins v. Illinois, 830 F.2d 692, 698 (7th
Cir.1987) (same); Beauford v. Sisters of Mercy–Province of
Detroit, Inc., 816 F.2d 1104, 1108 n. 3 (6th Cir.1987) (same);
Halsell v. Kimberly–Clark Corp., 683 F.2d 285, 293–95 (8th
Cir.1982) (same). Cf. 9A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2537 (Supp.2003) (
“[I]f the opposing party does not object to or specifically argue
against the assertion of a new ground, that party may have
waived that defense to the motion on appeal”).
[5][6] The district court’s denial of plaintiffs’ motion for new
trial is reviewed for abuse of discretion. Reversal of the district
court’s denial of a motion for a new trial is proper “if the
district court made a legal error in applying the standard for a
new trial or if the record contains no evidence in support of the
verdict.” Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1189
(9th Cir.2002).14
III
[7] Bizek argues that defendant Turner should be held liable for
Bizek’s allegedly false arrest. Without deciding whether Bizek
was falsely arrested for possessing a deadly weapon, we must
determine whether the jury could reasonably conclude that
Turner was not the arresting officer, and thus could not be
liable for Bizek’s arrest.15

Turner initiated police contact with Bizek after Turner noticed
Bizek in the crowd and became suspicious of Bizek based on his
attire and his manner of walking without putting weight on his
cane. Because Turner was stationed as an undercover officer in
civilian clothes, he did not approach Bizek. Rather, Turner
radioed Bizek’s description to other officers so that they could
“contact” Bizek and investigate Turner’s suspicions. When the
other officers located an individual matching Turner’s
description, Turner confirmed to the officers that they had
“contacted” the correct individual.
[8] Even though Turner initiated police contact with Bizek,
Turner did not tell the other officers to take Bizek into custody.
*840 Turner did not take Bizek into custody or handcuff Bizek.
Turner did not talk to Bizek until after Bizek had been taken to
the jail. Bizek was arrested, by being taken into custody, before
Turner had any direct contact with Bizek. See Michigan v.
Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565
(1988) (stating that an arrest occurs when a reasonable person
would have believed that he or she was not free to leave). After
Bizek’s arrest Turner issued Bizek a citation when Turner
visited Bizek at the jail. But such a citation of a person already
arrested does not make Turner the arresting officer. See Wilson
v. Strong, 156 F.3d 1131, 1134 (11th Cir.1998); Johnson v.
Barker, 799 F.2d 1396, 1399 (9th Cir.1986) (holding that
issuance of a citation did not “approach” an arrest for purposes
of a false arrest claim).
Possibly on the evidence presented a jury could have ruled
either way in deciding if Turner made the arrest of Bizek. But
viewing the evidence in the light most favorable to Turner, we
conclude that the jury’s determination that Turner was not the
arresting officer was reasonable and permissible as a matter of
law. Further, the district court did not abuse its discretion in
denying Bizek’s motion for a new trial because there was

sufficient evidence to support a conclusion that Turner was not
the arresting officer. We affirm the district court’s denial of the
motion for judgment notwithstanding the verdict and its denial
of the motion for a new trial with regard to Bizek.
IV
The next claim that we address on appeal is whether defendant
Dixon violated Crowell’s Fourth Amendment right to be free
from unreasonable seizure when Dixon arrested Crowell after he
refused to consent to the search of his backpack at the Aryan
Nations parade. According to Dixon, his encounter with Crowell
posed a frustrating dilemma with two choices: let Crowell go
and risk an explosion in the crowd or arrest him. Whatever else
is shown by the jury’s verdict in favor of Dixon, it surely means
that the jury credited Dixon’s explanation of his predicament as
being sincere and reasonable. Notwithstanding our caution
about second-guessing decisions of law officers made under
pressure when quick decisions are required, and notwithstanding
the jury’s decision about Dixon’s sincere interest in protecting
the public, we must assess whether the evidence permitted a
jury conclusion that Dixon’s actions were reasonable in light of
the constitutional requirement for reasonable searches and
seizures.
A
[9] An arrest is unlawful unless there is probable cause to
support the arrest. Michigan v. Summers, 452 U.S. 692, 700,
101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Crowell was arrested
for “resisting and obstructing officers” pursuant to Idaho Code
§ 18–705. Under Idaho state law, a person obstructs an officer
when that person “resists, delays, or obstructs any public
officer, in the discharge, or attempt to discharge, of any duty of
his office.” Idaho Code § 18–705. Defendant Dixon takes the
view that Crowell obstructed Dixon by not telling Dixon his

name and by refusing to allow Dixon to search Crowell’s
backpack at the Aryan Nations parade.16
[10] That Crowell refused to give Dixon his name cannot be a
basis for the arrest because Crowell has a “clearly established
*841 Fourth Amendment right not to identify himself.” Carey v.
Nevada Gaming Control Bd., 279 F.3d 873, 881–82 (9th
Cir.2002) (holding that statutes authorizing arrests for
obstruction of justice are unconstitutional to the extent that the
arrest is based on an individual’s refusal to identify himself). In
Carey, we also relied on our reasoning in Lawson v. Kolender,
658 F.2d 1362, 1366 (9th Cir.1981), in which we explained that
statutes authorizing arrest for a refusal to provide identification
are unconstitutional because “the statutes bootstrap the
authority to arrest on less than probable cause, and [because]
the serious intrusion on personal security outweighs the mere
possibility that identification may provide a link leading to
arrest.”
[11] Further, that Crowell refused to consent to search cannot
be a basis for the arrest unless Dixon had a right to search
Crowell’s backpack independent of Crowell’s refusal. United
States v. Prescott, 581 F.2d 1343, 1351 (9th Cir.1978).17 To
conclude otherwise would be illogical because Crowell has a
constitutional right to refuse consent to an unlawful search. See
id.; United States v. Fuentes, 105 F.3d 487, 490 (9th Cir.1997)
(“People do not have to voluntarily give up their privacy or
freedom of movement, on pain of justifying forcible deprivation
of those same liberties if they refuse.”)
The legality of Crowell’s arrest turns on whether Dixon had
legal authority to search Crowell’s backpack, either because
Dixon had probable cause to search Crowell’s backpack or
because the demand to search was otherwise lawful. If Dixon
had an inadequate basis in law to search Crowell’s backpack,
arresting Crowell for refusing to consent to search was

unlawful. On the other hand, if Crowell refused a lawful search,
he was lawfully arrested for obstructing an officer.
[12][13][14] Because the Fourth Amendment requires that all
searches and seizures be reasonable, the legality of Dixon’s
search of Crowell’s backpack depends on whether the search
was reasonable. In the ordinary case, reasonableness requires
that searches be supported by probable cause. Brinegar v.
United States, 338 U.S. 160, 164, 69 S.Ct. 1302, 93 L.Ed. 1879
(1949). See also Carroll v. United States, 267 U.S. 132, 149, 45
S.Ct. 280, 69 L.Ed. 543 (1925) (holding that “the true rule is
that if the search and seizure without a warrant are made upon
probable cause ... the search and seizure are valid”). Probable
cause means more than a bare suspicion; it exists when the
officer’s knowledge of reasonably trustworthy information is
sufficient to warrant a prudent person to believe that an offense
has been or is being committed. See Brinegar, 338 U.S. at 175–
76, 69 S.Ct. 1302. See also United States v. Del Vizo, 918 F.2d
821, 825 (9th Cir.1990). Further, “[a] search or seizure is
ordinarily unreasonable in the absence of individualized
suspicion of wrongdoing.” City of Indianapolis v. Edmond, 531
U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (emphasis
added).
Dixon argues that the following facts gave rise to probable
cause to search Crowell’s backpack: (1) Crowell did not consent
to search; (2) Crowell did not give his name when asked; (3)
Crowell’s backpack *842 was heavy and there were two
cylindrical objects in the bottom of the backpack; (4) during
contact, Crowell became increasingly loud, drawing a crowd of
bystanders; (5) there was a perceived threat of violent
confrontation at the Aryan Nations parade; (6) the Aryan
Nations was known to have a propensity for violence; (7) the
leader of the Jewish Defense League had said that the streets of
Coeur d’Alene would “run red with blood;” (8) explosives, such
as pipe bombs and coffee can bombs, can be cylindrical in

shape; (9) people can and do carry bombs in backpacks, such as
occurred in the 1996 Olympic Park bombing in Atlanta; and
(10) a teletype alerted law enforcement agencies in northern
Idaho that explosives had been stolen from a construction site in
southwestern Idaho.
[15] Two of the facts prominently urged by Dixon to support
probable cause cannot correctly be a part of our probable cause
evaluation. First, that Crowell refused to consent to search
cannot be used to establish probable cause. Gasho v. United
States, 39 F.3d 1420, 1439 (9th Cir.1994) (holding that it is
clearly established law that refusal to consent to warrantless
search “could not serve as a basis for finding criminal intent”);
Prescott, 581 F.2d at 1351 (recognizing that the constitutional
right to refuse consent to a search cannot be a crime “[n]or can
it be evidence of a crime ”) (emphasis added).
Second, that Crowell refused to give Dixon his name cannot be
used to support probable cause. Poulas v. United States, 95 F.2d
412, 413 (9th Cir.1938) (in the context of a Terry-type stop, “no
adverse inference can be drawn from the refusal” to respond to
an officer’s request). In Lawson, 658 F.2d at 1366–67, we
rejected the idea that the refusal to identify oneself to an officer
can elevate mere “reasonable suspicion” to probable case.
Lawson invalidated a vagrancy statute that permitted an arrest
when an individual refused to identify himself to an officer who
had reasonable suspicion of criminal activity under the Terry v.
Ohio standard. Id. at 1366. Such a statute, we reasoned, would
reduce the standard for arrest from probable cause to suspicion.
Id. at 1367. Lawson, therefore, teaches us that probable cause
must be established independent of a suspect’s refusal to give
his or her name.18
Even though Crowell’s refusal to give his name or to consent
cannot be used to assess probable cause, Dixon does assert three
facts particular to Crowell that might give rise to individualized

suspicion of wrongdoing, if their weight is sufficient in the
risk-filled context of the protested *843 parade: that Crowell
had a heavy backpack, that two cylindrical-shaped bulges were
visible to Dixon at the base of the backpack, and that Crowell
became increasingly loud during his confrontational encounter
with Dixon.
[16] Because probable cause is considered in light of the
totality of the circumstances, Ornelas v. United States, 517 U.S.
690, 702, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), these
individualized facts should properly be considered in the
context of the dangerously hostile atmosphere of this particular
parade, heralded by Aryan Nations’ publicity and the Jewish
Defense League’s threatened response. See United States v.
Canada, 527 F.2d 1374, 1380 (9th Cir.1975) (holding that an
incident’s occurrence in “an area with a high incidence of
contraband smuggling” weighed in the probable cause
determination); United States v. Orozco, 982 F.2d 152, 154 (5th
Cir.1993) (including in the probable cause determination the
fact that the arrest took place in area where drug activity was
common); United States v. Davis, 458 F.2d 819, 822
(D.C.Cir.1972) (holding that the high-crime nature of the
neighborhood is a “valid consideration when coupled with other
reliable indicia or suspicious circumstances”). See also Carroll,
267 U.S. at 159–60, 45 S.Ct. 280 (considering, in the probable
cause analysis, the fact that defendants were known
“bootleggers” and were driving from Detroit, at that time a
frequent source of supply for bootlegged liquor).
Also significant is Dixon’s knowledge of the 1996 Olympic
Park bombing in Atlanta, during which a backpack bomb
exploded. The Olympic Park bombing, though not connected to
Crowell, is still relevant as we assess probable cause because it
shows that law enforcement can have a genuine concern that
violent people can carry explosives in a backpack. And
explosives carried in a backpack might be cylindrical in form.19

Dixon also relies on the teletype received by the Coeur d’Alene
law enforcement agency reporting explosives stolen from a
construction site in southwestern Idaho. This is relevant to the
probable cause analysis because it establishes evidence that
illicit explosives might be available and present in the area.
[17][18][19] The hostile atmosphere of the Aryan Nations
parade colors Crowell’s otherwise ordinary conduct (carrying a
heavy backpack in a crowd) sufficiently to give rise to the
articulable reasonable suspicion necessary to establish grounds
for an investigatory stop. See Terry v. Ohio, 392 U.S. at 26–27,
88 S.Ct. 1868. After Dixon detained Crowell for questioning
pursuant to a Terry-type stop, however, Dixon did not develop
any further facts that would increase a reasonable officer’s
suspicion of Crowell.20 Dixon testified that aside from
Crowell’s backpack, Dixon had no other reason to suspect
Crowell was carrying explosives.
*844 The question before us is whether the totality of the
circumstances relating to Crowell’s carrying of his backpack to
the Aryan Nations parade, considered in context, is enough not
only to give rise to reasonable suspicion but also to create
probable cause. This is a difficult question that we consider
cognizant of the significance that a jury, entrusted to consider
the evidence and uphold the law, returned a verdict for Dixon.
And the district court denied relief on the post-verdict motions.
Faced with the responsibility of de novo review of the motion
for judgment notwithstanding the verdict, we do not lightly cast
aside the solemnity of the jury’s verdict, nor our respect for the
district court’s review of the issue we now address. But we must
nevertheless consider whether our law can support a finding of
probable cause even when we assume that the jury resolved all
fact issues in favor of Dixon.
Because the law does not permit consideration of Crowell’s
refusal to consent to search or his refusal to give his name, we

are left only with Dixon’s observation that Crowell carried a
heavy backpack with bulges in an indisputably dangerous
setting. Because people might frequently carry innocent objects
in hard containers in backpacks, Dixon’s observation of
cylindrical objects at the base of Crowell’s backpack does not
furnish any substantial degree of particularized suspicion
regarding Crowell in this context, despite the potentially
incendiary atmosphere of the parade and protest. The heaviness
of the backpack is also not a substantial factor, both because
explosives need not be heavy to cause injury and death, and
because many innocent objects such as books may add weight to
a backpack. While the teletype about stolen explosives would
add something to a case where objectively suspicious activity
was manifested by a suspect, again there was nothing shown to
link the stolen explosives to Crowell any more than to all others
who carried backpacks, whether light or heavy, with or without
hard bulges, to the parade.
[20][21][22][23] Viewing the facts in the light most favorable
to Dixon, there is insufficient individualized suspicion to
support the jury’s finding of probable cause.21 We recognize
that the hostile circumstances of the parade, which included
specific intelligence supporting anticipation of violence, can be
considered in the probable cause analysis. But the context of the
parade is not a complete substitute for particularized suspicion.
In a sense, members of a grateful public might consider Dixon’s
actions laudable, motivated as they were by a desire to protect
the public from explosives at some personal risk. Nonetheless, a
good motive is not sufficient to show probable cause, and Dixon
did not give adequate weight to what the Fourth Amendment
requires us to place at the heart of our probable cause
assessment—consideration of evidence supporting
individualized suspicion. We acknowledge that the Aryan
Nations parade, attendant with explicit threats of violence and
stolen explosives, created a challenge for law enforcement in
Coeur d’Alene that was totally unprecedented in their

experience. Yet, we cannot avoid the conclusion that Dixon
erred on probable cause when he allowed the serious dangers
presented to the public at the parade to dominate the traditional
determinants of probable cause and substantially *845 to eclipse
the weight that must be given to individualized suspicion if we
are to preserve the privacy of our citizens. We hold that there
was no probable cause to support the search as a matter of
law.22
B
[24][25][26][27] Even though we hold that Dixon did not have
probable cause to search Crowell’s backpack, the district
court’s denial of Crowell’s motion for judgment
notwithstanding the verdict may nevertheless have been proper
if Dixon is entitled to qualified immunity.23 In Saucier v. Katz,
533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the
Supreme Court announced a two-step approach to evaluating
qualified immunity claims. In the first step, we *846 consider
whether a constitutional right was violated by the officer’s
conduct. Id. at 200–01, 121 S.Ct. 2151. Because we have
already concluded that Dixon violated Crowell’s Fourth
Amendment right to be free from unreasonable searches and
seizures, we now conduct the second step of Saucier and ask
“whether the right was clearly established.” Id. at 201, 121
S.Ct. 2151.
[28] Whether a right is “clearly established” for purposes of
qualified immunity is an inquiry that “must be undertaken in
light of the specific context of the case, not as a broad general
proposition.” Id. at 201, 121 S.Ct. 2151. In other words, “[t]he
contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.” Id. at 202, 121 S.Ct. 2151. See also Cruz v. Kauai
County, 279 F.3d 1064, 1069 (9th Cir.2002) (recognizing that
for a right to be clearly established, “[t]he right must be

established at more than an abstract level.”)
[29][30] In this case, we consider whether a reasonable officer
in Dixon’s situation would understand that he lacked probable
cause to search for suspected explosives in Crowell’s backpack
in the proximity of a crowded street-lined parade.24 We
undertake this inquiry keeping in mind the Supreme Court’s
clear explanation of reasons for giving a qualified immunity in
the context of excessive force, which we have here adapted as
applied to probable cause:
It is sometimes difficult for an officer to determine how the
relevant legal doctrine, here [probable cause], will apply to the
factual situation the officer confronts. An officer might
correctly perceive all of the relevant facts but have a mistaken
understanding as to whether [search based on those relevant
facts] is legal in those circumstance. If the officer’s mistake as
to what the law requires is reasonable, however, the officer is
entitled to the immunity defense.
Saucier, 533 U.S. at 205, 121 S.Ct. 2151.
Here, Dixon was confronted with an undeniably incendiary
situation. A violent hate group was about to march down the
streets of Coeur d’Alene through a crowd of impassioned and,
in some cases, violent protestors and supporters. Dixon testified
*847 that Coeur d’Alene law enforcement had never
experienced any situation quite like this. In addition, Dixon
knew that stolen explosives were at large and could be present
at the parade. Dixon thus confronted an atypical situation
bounded by actual and credible threats of violence, the potential
of hostile actors, missing explosives and throngs of innocent
persons watching the parade. When he encountered Crowell,
Dixon observed Crowell’s heavy backpack with cylindrical
bulges at its base. After Crowell refused to consent to search,
Dixon was left with an unpleasant choice and a risky dilemma:
Dixon could arrest Crowell and search the backpack, or Dixon
could let Crowell go forward in the crowd despite Dixon’s

suspicion that Crowell had explosives in his backpack.
Faced with this dilemma, Dixon made his probable cause
determination, but he was required to do so on the spot and at
the moment without the benefit of clear guidance from the law
on whether the incendiary circumstances of the protested Nazi
parade could be given controlling weight in determining
probable cause. It is clear that the potentially violent nature of
the parade properly informs the probable cause analysis. See
United States v. Canada, 527 F.2d at 1380; Orozco, 982 F.2d at
154; Davis, 458 F.2d at 822. But none of these cases, nor any
explicit decision of the Supreme Court, makes clear how much
weight the nature of an area can be given in the probable cause
analysis. In Brown v. Texas, the Supreme Court did consider
that the arrest took place in an area known for high incidence of
drug traffic; but with regard to the weight to be given such a
factor, the Court only said that the reputation of a neighborhood
as frequented by drug users cannot “standing alone” give rise to
probable cause when there is otherwise an “absence of any basis
for suspecting [the individual] of misconduct.” 443 U.S. 47, 52,
99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). In this case, Dixon did
articulate some individualized suspicion regarding Crowell—the
heaviness of the backpack and the bulges.
Though we above concluded that Dixon relied too heavily on
the context of the hostile and volatile parade, rather than the
individualized factors, we had the luxury of making our
decision only after thoroughly reviewing the relevant legal
authorities, and after applying the law to the facts removed from
the intense anxiety to safeguard the public that Dixon and law
enforcement officials felt at the Aryan Nations parade. Dixon
did not have this same luxury. Police officers rarely, if ever,
can objectively remove themselves from the immediate threats
that they face, and yet they may have the obligation to risk their
own lives to protect the public, while at the same time
traversing difficult contours of constitutional law. The Supreme

Court has “frequently observed ... the difficulty of determining
whether particular searches or seizures comport with the Fourth
Amendment.” Anderson v. Creighton, 483 U.S. 635, 644, 107
S.Ct. 3034, 97 L.Ed.2d 523 (1987). For this reason, “[l]aw
enforcement officers whose judgments in making these difficult
determinations are objectively legally reasonable should no
more be held personally liable in damages than should officials
making analogous determinations in other areas of law.” Id.
[31] Given the volatile nature of the parade and the potential for
grave injury that Dixon sought to interdict, we conclude that a
reasonable officer in Dixon’s situation could have believed that
those circumstances carried enough weight to create probable
cause when there was at least some individualized suspicion.
We hold that Dixon is entitled to qualified immunity, because
the law did not provide him *848 clear guidance as to how much
weight he could give the explosively hostile circumstances of
the Nazi parade in making his probable cause assessment. In the
extraordinary circumstances of this case, Dixon made a
reasonable mistake.25
Because we hold that Dixon is entitled to qualified immunity,
the district court did not err in denying Crowell’s motion for
judgment notwithstanding the verdict. And, because there was
some evidence supporting the jury’s verdict, the district court
did not err in denying Crowell’s motion for new trial.
V
[32] The final issue concerns potential supervisory liability of
defendant Surplus. Crowell argues that Surplus told Dixon to
arrest Crowell and should be held liable, with Dixon, for
violating Crowell’s Fourth Amendment rights.
[33] Because we have determined that Dixon is not liable
because of qualified immunity, it would be surprising if Surplus

could be held liable as a supervisor, as Crowell alleges. In any
event, under our law section 1983 suits do not impose liability
on supervising officers under a respondeat superior theory of
liability. Rise v. Oregon, 59 F.3d 1556, 1563 (9th Cir.1995).
Instead, supervising officers can be held liable under section
1983 “only if they play an affirmative part in the alleged
deprivation of constitutional rights.” Id. (internal quotations
omitted). The supervising officer has to “set in motion a series
of acts by others ..., which he knew or reasonably should have
known, would cause others to inflict the constitutional injury.”
Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991)
(internal quotations omitted).
Here, Dixon communicated by radio to his supervisor,
Lieutenant Hotchkiss, that a man with a backpack refused to
consent to search. Hotchkiss told Dixon to “deal with it.”
Surplus then on the same radio told Dixon to arrest Crowell if
he did not consent to search. There was no evidence of any
further communication by Dixon with Hotchkiss or Surplus
directing arrest of Crowell. At trial, Surplus testified that he
assumed Dixon had probable cause to search the backpack and
that he thought Dixon was asking whether officers were
supposed to make arrests that day. Dixon testified that he did
not consider Surplus’s comment to be an instruction, but rather
to be advice.
This evidence was equivocal and Crowell had a right to have his
claim against Surplus presented to the jury along with his claim
against Dixon. However, the jury verdict is fatal to Crowell’s
claim against *849 Surplus. Viewing the evidence in the light
most favorable to Surplus, a jury could reasonably conclude that
Dixon decided to arrest Crowell independent of Surplus’s
statement on the radio. Dixon did not tell Hotchkiss or Surplus
any information about why Dixon wanted to search Crowell’s
backpack. It is thus plausible that Dixon did not understand
Surplus’s statement to be an assessment of the legality of the

search and that Surplus’s explanation could be credited by a
jury. Even if Surplus’s statement had the practical effect of
encouraging Dixon to arrest Crowell, the evidence did not
require the jury to conclude that Surplus knew or had reason to
know that the arrest would be unlawful. Instead, the jury’s
determination that Surplus did not play an affirmative part in
the deprivation of Crowell’s constitutional rights is reasonable
as a matter of law.
[34] Further, the district court did not abuse its discretion in
denying Crowell’s motion for a new trial on claims against
Surplus because there was evidence to support a conclusion that
Surplus did not act affirmatively and did not set Crowell’s
arrest in motion. We affirm the district court’s denial of the
motion for judgment as a matter of law and new trial with
regard to Crowell’s claim against Surplus.
AFFIRMED.
All Citations
339 F.3d 828, 03 Cal. Daily Op. Serv. 6841, 2003 Daily Journal
D.A.R. 8604
Footnotes
*
The Honorable Richard D. Cudahy, Senior United States Circuit
Judge for the Seventh Circuit Court of Appeals, sitting by
designation.
1
As of June 1, 2001, Crowell was awaiting retrial. The record
does not indicate whether Crowell was retried and, if so, the
result of the second jury trial.

2
Five plaintiffs were named in the complaint: Gary Bizek,
Jonathan Crowell, Lori Graves, Jeffrey Kerns, and Kenneth
Malone. All claims brought by Graves, Kerns, and Malone were
dismissed by the district court on partial summary judgment.
Only Bizek and Crowell proceeded to trial in this section 1983
action and they are the only appellants.
3
The City of Coeur d’Alene and other city and county
employees, while named defendants in the original complaint,
are not parties to appeal. Adopting the report and
recommendation of the Magistrate Judge on the defendants’
motion for summary judgment, on July 20, 2001, the district
court dismissed all claims except the false arrest claims brought
by plaintiffs Bizek and Crowell under 42 U.S.C. § 1983 against
defendants Dixon, Surplus, and Turner. All claims alleged by
plaintiffs Graves, Kerns, and Malone were dismissed. All claims
of plaintiffs Bizek and Crowell against defendants other than
Dixon, Surplus, and Turner were dismissed. Defendants Turner,
Dixon and Surplus did not assert qualified immunity in seeking
summary judgment, in trial proceedings, or in opposing
plaintiffs’ motion for judgment notwithstanding the verdict or a
new trial. Nor have defendants urged that we may consider
qualified immunity on this appeal.
4
See also discussion of standard of review infra Section II.
5
As Dixon testified: “There was intelligence that was gathered
through various sources on potential groups that are coming to

Coeur d’Alene to protest.... The Jewish Defense League,
information of people out of Seattle, the rumor was Black
Panthers. There was just numerous groups coming to support
it.”
6
Again, as Dixon testified: “Being a hate group just north of here
in Hayden Lake, they marched on the sidewalks before, they
have never marched on the street before, but they marched on
the sidewalk in ′96, I believe, up and down carrying banners and
spreading their message of hate, as well as some bombings they
were involved in in the mid ′80s here in Coeur d’Alene.”
7
The stolen explosives were quantities of ammonium nitrate, a
blasting explosive used at times in construction and a chemical
fertilizer such as was used in the 1995 Oklahoma City bombing
of a Federal Building.
8
It is a reasonable inference for the jury that the notification was
given pursuant to standard law enforcement procedures. It is not
remote, and the jury might reasonably infer, that persons
planning violence might steal the instrumentalities of violence
from a location within a day’s drive of a target.
9
Turner’s limited role after spotting Bizek was consistent with
Turner’s mission and aim to remain undercover.
10

Dixon’s quoted testimony above mentioning the “Olympic Park
bombings” harkens back to his earlier trial testimony that he
knew that in Atlanta in 1996 bombs were brought to the location
and detonated in a backpack in a crowded area.
11
Before encountering Crowell, Dixon had searched about fifteen
other bags. All those searches were consensual.
12
Plaintiff Crowell did not contend that excessive force was used
and the jury was not instructed on a theory of excessive force.
Plaintiffs did not object to the jury instructions.
13
On appeal defendants still do not argue that the Rule 50(b)
motion was improper, but assume the proper standard for review
is sufficiency of the evidence.
14
The district court recognized that it could grant a new trial if “
‘the verdict is contrary to the clear weight of the evidence, or is
based upon evidence which is false, or to prevent, in the sound
discretion of the trial court, a miscarriage of justice.’ ” (quoting
United States v. 4.0 Acres of Land, 175 F.3d 1133, 1139 (9th
Cir.1999)). The district court applied the correct legal standard.
15
As to Bizek’s claim, the jury was instructed that “in order to
determine whether the acts or omissions of defendant Turner
caused the deprivations of plaintiff Bizek’s constitutional

rights, you must first decide by a preponderance of evidence
whether defendant Turner arrested plaintiff Bizek.” The jury’s
verdict for defendants can be sustained if there is sufficient
evidence to permit a jury to conclude that Turner did not make
the arrest.
16
Dixon’s testimony acknowledged that Crowell did not call
Dixon any names, swear at him, threaten him, physically attack
him, verbally attack him, or insult him.
17
The Idaho Supreme Court similarly has recognized that the
legality of an arrest for obstructing an officer under the Idaho
Code depends on the lawfulness of the officer’s request. See
State v. George, 127 Idaho 693, 905 P.2d 626, 632 (1995)
(holding that because officer’s request for license, registration
and proof of insurance was lawful, defendant’s refusal to
produce those documents constituted obstructing an officer
within the meaning of Idaho Code § 18–705).
18
Although the Supreme Court has not explicitly addressed
whether officers can accord any weight to an individual’s
refusal to state his name in a probable cause analysis, our
circuit’s rule in Lawson follows naturally from the Supreme
Court’s repeated pronouncements that individuals have a right
not to respond to officers during a Terry stop. See Berkemer v.
McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317
(1984) (holding that during a Terry stop, “the officer may ask
the detainee a moderate number of questions to determine his
identity and to try to obtain information confirming or
dispelling the officer’s suspicions. But the detainee is not

obliged to respond.”) (emphasis added); Florida v. Royer, 460
U.S. 491, 497–98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)
(holding that a person approached by an officer “need not
answer any question put to him; indeed, he may decline to listen
to the questions at all and may go on his way”); Davis v.
Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed.2d 676
(1969) (holding that it is a “settled principle that while the
police have the right to request citizens to answer voluntarily
questions concerning unsolved crimes they have no right to
compel them to answer”); Terry v. Ohio, 392 U.S. 1, 34, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968) (White, J., concurring)
(observing that “the person stopped is not obliged to answer,
answers may not be compelled, and refusal to answer furnishes
no basis for an arrest”).
19
Dixon’s explosives training, even if limited to two or three
hours, is significant in that it demonstrates that he knew that
bombs can be cylindrical in shape and packed in hard objects
such as a coffee can that would easily fit within a backpack and
that in a crowd could potentially kill, maim, or injure scores of
people.
20
On appeal, Dixon asserts that Crowell aroused additional
suspicions during the stop because Crowell became increasingly
loud during the encounter. But Crowell was primarily asserting
his Fourth Amendment right not to be searched and was
speaking loudly to generate witnesses to his protest. While such
behavior may have been discourteous or obnoxious or irritating
to Dixon, we cannot conclude in the context of this case that
Crowell’s verbal assertion of his constitutional right to be free
from unreasonable search, even if wrongly asserted, can be said
to increase an officer’s suspicion that a crime had been or was

being committed by Crowell.
21
In section 1983 claims, the existence of probable cause is a
question for the jury if reasonable persons might reach different
conclusions on the facts. De Anda v. City of Long Beach, 7 F.3d
1418, 1422 (9th Cir.1993); Smiddy v. Varney, 665 F.2d 261,
265 (9th Cir.1981). Here, even resolving all factual disputes in
favor of Dixon and consistent with his own testimony, a
reasonable jury could have reached only one conclusion—there
was no probable cause.
22
There also exists no other basis upon which to support the
legality of Dixon’s demand to search. Dixon has not asserted
that the search can be justified under the Supreme Court’s
“special needs” doctrine. The Supreme Court has held that “[a]
search unsupported by probable cause can be constitutional ...
[in those exceptional circumstances in which] special needs,
beyond the normal need for law enforcement, make the warrant
and probable-cause requirement impracticable.” Vernonia Sch.
Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132
L.Ed.2d 564 (1995) (internal quotation marks omitted). But the
Supreme Court has never endorsed a general idea that for
individual searches considerations of public necessity may be
said to trump the probable cause requirement. Despite the
public safety reasons for searching bags at the Aryan Nations
parade, special needs searches must be “exercised according to
standard criteria and on the basis of something other than
suspicion of evidence of criminal activity.” Florida v. Wells,
495 U.S. 1, 3–4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); United
States v. Bulacan, 156 F.3d 963, 974 (9th Cir.1998) (holding a
regulation authorizing administrative searches unconstitutional
because the regulation did not “create an established procedure

that limit[ed] discretion and set [ ] the parameters of the
search”).
Here, there was no organized methodology for systematically
checking all individuals who entered the area. And, there were
no checkpoints through which all people had to pass before
entering the vicinity of the parade. Rather, the officers
generally asked the crowd whether their bags had been checked.
Some people walked over to the officers and allowed a bag
search; others kept walking without consequence. Because the
Coeur d’Alene police officers possessed unguided discretion,
absent specified criteria, to carry out suspicionless bag
searches, special needs cannot serve as the legal authority for
Dixon’s demand to search Crowell’s backpack. We note that
Coeur d’Alene could use the Supreme Court’s “special needs”
jurisprudence to protect the public when crowds are threatened
by potential violence so long as the Coeur d’Alene police
follow the standards that the Supreme Court has set. Cf.
Wilkinson v. Forst, 832 F.2d 1330, 1340 (2d Cir.1987)
(upholding suspicionless magnetometer searches upon entering
the vicinity of Ku Klux Klan rallies when all individuals were
searched and notices were posted to give individuals the option
to leave the area if they did not want to be searched).
23
The defendants asserted the qualified immunity defense in their
answer to the complaint. Because we may affirm the decision of
the district court on any ground supported by the record, see
Rivero v. City and County of San Francisco, 316 F.3d 857, 862
(9th Cir.2002), we will address the qualified immunity issue sua
sponte on appeal. Cf. Sonoda v. Cabrera, 255 F.3d 1035 (9th
Cir.2001) (reviewing the merits of the district court’s sua
sponte grant of qualified immunity when defendants raised
qualified immunity as a defense in their answer). Also, while
we generally do not address issues raised for the first time on
appeal, we have nevertheless done so in exceptional

circumstances such as when “the issue presented is purely one
of law and either does not depend on the factual record
developed below or the pertinent record has been fully
developed.” Marx v. Loral Corp., 87 F.3d 1049, 1055 (9th
Cir.1996) (internal citation and quotation omitted). See also In
re America West Airlines, Inc., 217 F.3d 1161, 1165 (9th
Cir.2000) (addressing an issue raised for the first time on
appeal because the issue was one of law and the factual record
had been fully developed). Qualified immunity is an issue of
law and, to the extent that it depends on the factual record, that
record has been fully developed below, as it is the same record
that relates to whether there was probable cause to search. For
the same reasons that Marx permitted an issue newly raised on
appeal, we think it appropriate sua sponte to consider the issue
of qualified immunity on this appeal, thus applying Marx to
cover another circumstance where decision turns on a legal
issue supported by an adequate record.
24
Ordinarily for qualified immunity we view facts in the light
most favorable to the party asserting the injury. Mena v. City of
Simi Valley, 332 F.3d 1255, 1261 (9th Cir.2003). Here, because
we consider qualified immunity in an unusual procedural setting
after a jury verdict, and as part of plaintiff’s appeal from the
denial of plaintiff’s motion for judgment notwithstanding the
verdict, it is not entirely clear whether we should consider the
evidence in the light most favorable to Crowell, the party
asserting the injury, or to Dixon, the nonmoving party. We
ordinarily would have considered qualified immunity as a
question of law before a jury verdict, with all disputed facts and
reasonable inferences viewed in the light favorable to Crowell.
But in the setting presented, Dixon is the nonmoving party,
after a favorable jury verdict. This raises a complex issue, but
one that we need not decide, for the outcome of the qualified
immunity analysis is the same in any event and so we decide

this issue assuming that the facts are viewed favorably to
Crowell: Crowell’s testimony and evidence at trial did not
dispute the incendiary nature of the parade, including threatened
violence, and did not suggest that Dixon’s concern for public
safety was not genuine. Crowell also admitted that he carried a
heavy backpack and it was not disputed that there were
cylindrical objects in it. Crowell did not raise any genuine issue
of fact on material issues regarding the factors relied on by
Dixon in his probable cause analysis, but rather urged that
factors Dixon considered were inadequate.
25
It is not inconsistent to hold that no reasonable jury could find
probable cause but that Dixon is nonetheless entitled to
qualified immunity. This is so because of the difference in the
applicable standards. We assess whether a reasonable jury could
find there was probable cause—supporting its verdict for
defendant—“under the principles [we] announced and on the
basis of the evidence presented.” See Boyle v. United Tech.
Corp., 487 U.S. 500, 513–14, 108 S.Ct. 2510, 101 L.Ed.2d 442
(1988). But in evaluating qualified immunity, we ask whether a
reasonable officer “at the moment” of search, without the
benefit of our reasoned declaration of the principles we have
just announced, could reasonably believe he had probable cause.
See Saucier, 533 U.S. at 205–06, 121 S.Ct. 2151. The qualified
immunity defense recognizes that officers make probable cause
assessments in the field under pressure and therefore affords the
officer leeway, permitting a reasonable mistake without
resulting individual liability of the officer, when the law is not
clearly established. Id. at 205, 121 S.Ct. 2151. Though both
Dixon and the jury were incorrect to find probable cause to
search Crowell’s backpack, Dixon is nevertheless entitled to
qualified immunity as the application of the probable cause
requirement in context was not clearly established.

End of Document
© 2018 Thomson Reuters. No claim to original U.S.
Government Works.
CRJ 550
Legal Issues in Criminal Justice Administration
Case Brief Guidelines
1. Students will brief all assigned cases for the module in which
they are assigned. The case briefs are to be the student’s own
work. The learning process takes place with the student reading,
analyzing, and summarizing the facts and issues in a case;
copying someone else’s work is not part of the learning process.
However, students may consult with each other, discuss cases,
and use the product of those discussions to write their briefs.
2. Your classmates will depend on you to write a thorough,
accurate brief of the case(s) assigned. You, in turn, will rely on
your classmates to do the same for their cases.
3. A copy of your brief will be posted in the appropriate
module’s Case Brief Discussion board.
4. Be prepared to explain, justify, or dissent from your assigned
case, as the instructor and/or classmates may query you about
the case.
5. Case briefs will be written in the following format
(mandatory):
a. Title and Citation (e.g. Jones v. Smith, 123 F.3d 456 (11th
Cir. 2004))
b. Type of Action (e.g. civil suit for money damages for
violation of free speech rights under the First Amendment.)
c. Facts of the Case (Discuss relevant facts; what happened?

Why is this matter in court?)
d. Contentions of the Parties (What are the best arguments
favoring each party?)
· Smith argues that:
· Jones argues that:
e. Issue(s) (The issue relevant to the subjects studied in the
module in which it is assigned, e.g. Were Jones’ rights under
the First Amendment violated when he was fired for speaking at
a political rally?)
f. Decision (How did the court rule on that issue?)
g. Reasoning (Why did the court rule the way it did? This is the
most important part of the case.)
h. Rule of Law (What one legal point do we take from this
case?)
6. Length: Should not exceed 2 pages.
7. Do not post a brief without checking your spelling and
grammar. You will lose points for errors.
8. Important Point: Each time you brief a case, remember why
the case is selected at this point in the course. Some cases
address multiple issues. You do not need to discuss all of the
issues. Focus on the point of law where the case is assigned in
the course.
9. Case briefs grades are weighted as follows (total 4 points):
a. Summary of facts: 1 point
b. Format:
1 point
c. Clarity of writing: 1 point
d. Understanding of the court’s decision: 1 point
Assigned Cases
Module One:
Reasonable suspicion 4th Amendment:
1. U.S. v. Arvizu, 534 U.S. 266 (2001)
5th Amendment after Miranda:

2. Edwards v. Arizona, 451 U.S. 477 (1981)
Right to counsel:
3. United States v. Henry, 447 U.S. 264 (1980)
Vague or overbroad:
4. Parker v. Levy, 417 U.S. 733 (1974)
Off-duty conduct and discipline:
5. Oddsen v. Board of Fire & Police Comm., 321 N.W. 2d 161
(Wis. 1982)
Module Two:
Due Process – Substantive and Procedural:
1. Muncy v. City of Dallas, 335 F.3d 394 (5th Cir.2003)
2. Silva v. Bieluch, 351 F.3d 1045 (11th Cir. 2003)
Liberty Interest and Equal Protection:
3. Zalewska v. County of Sullivan, 316 F.3d 314 (2d Cir. 2003)
Due Process – Procedural:
4. Gilbert v. Homar, 117 S.Ct. 1807 (1997)
5. Dixon v. City of New Richmond, 334 F.3d 691 (7th Cir.
2003)
Liberty Claims:
6. Cannon v. City of West Palm Beach, 250 F.3d 1299 (11th
Cir. 2001)
Equal Protection:
7. Williams v. Hansen, 326 F.3d 569 (4th Cir. 2003)
Right of Privacy:
8. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997)
Freedom of Association:
9. Parks v. City of Warner Robbins, 43 F.3d 609 (11th Cir.
1995)
10. Tindle v. Caudell, 56 F.3d 966 (8th Cir. 1995)

11. Ross v. Clayton County, 173 F.3d 1305 (11th Cir. 1999)
Freedom of Religion:
12. Endres v. Indiana State Police, 334 F.3d 618 (7th Cir. 2003)
13. Ryan v. U.S. Department of Justice, 950 F.2d 458 (7th Cir.
1991)
Module Three:
Americans with Disabilities Act (ADA) – Supreme Court:
1. Toyota Motor Co. v. Williams, 122 S. Ct. 681 (2002)
2. U.S. Airways v. Barnett, 122 S. Ct. 1516 (2002)
Americans with Disabilities Act (ADA) – Hiring Under the
ADA:
3. Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000)
Americans with Disabilities Act (ADA) – Reasonable
Accommodation:
4. Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir.
1997)
Americans with Disabilities Act (ADA) – Discipline:
5. Aldrup v. Caldera, 274 F.3d 282 (5th Cir. 2001)
Americans with Disabilities Act (ADA) – Family and Medical
Leave Act (FMLA):
6. Phelan v. City of Chicago, 347 F.3d 679 (7th Cir. 2003)
Title VII of the Civil Rights Act of 1964 – Racial
Discrimination:
7. Grutter v. Bollinger, 123 S. Ct. 2325 (June 2003)
8. Williams v. Consolidated City of Jacksonville, 341 F.3d 1261
(11th Cir. 2003)
Title VII of the Civil Rights Act of 1964 – Religious
Discrimination:
9. Mandell v. County of Suffolk, 316 F.3d 368 (2003)
Title VII of the Civil Rights Act of 1964 – Fair Labors
Standards Act:

10. Houston Police Officers Union v. Houston, 330 F.3d 298
(5th Cir. 2003)
Title VII of the Civil Rights Act of 1964 – Pregnancy
Discrimination Act (42 U.S.C. Sec. 2000e(k)):
11. Adams v. Nolan, 962 F.2d 791 (8th Cir. 1992)
Title VII of the Civil Rights Act of 1964 – Age Discrimination
in Employment Act (ADEA):
12. Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003)
13. Smith v. City of Jackson, 125 S. Ct. 1536 (2005)
Module Four:
Sexual harassment:
1. Burlington Northern Railway v. White, 126 S.Ct. 2405 (2006)
2. Meritor Bank v. Vinson, 106 S. Ct. 2399 (1986)
3. Johnson v. Rice, 237 F. Supp.2d 1330 (M.D.FL 2002)
4. Faragher v. City of Boca Raton, 524 U.S. 775 (1998)
5. Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998)
6. Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998
(1998)
7. Gonzales v. New York Department of Corrections, 122 F.
Supp. 2d. 335 (N.D.N.Y. 2000)
8. Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)
9. Thomas v. Galveston County, 953 F. Supp. 504 (S.D. Tex.
1997)
10. Smith v. City of Chattanooga, WL 4374039 (4th Cir. 2008)
11. McCurdy v. Arkansas State Police, 375 F. 3 762 (8th Cir.
2004)
12. Wright v. Rolette County, 417 F. 3d 879 (8th Cir. 2005)
Module Five:

Compelled interviews:
1. Garrity v. State of New Jersey, 87 S. Ct. 616 (1967)
2. Gardner v. Broderick, 88 S. Ct. 1913 (1968)
3. (a) Kastigar v. United States, 92 S.Ct. 1653 (1972)
3. (b) In re Grand Jury Subpoena, 75 F.3d 446 (9th Cir. 1996)
3. (c) Grand Jury Subpoena v. United States, 40 F.3d 1096 (10th
Cir. 1994)
4. Dept. of Justice v. FLRA, 975 F.2d 218 (5th Cir. 1992)
5. LaChance v. Erickson, 118 S.Ct. 753 (1998)
6. Harrison v. Wille, 132 F.3d 679 (11th Cir. 1998)
7. Chan v. Wodnicki, 123 F. 3d 1005 (7th Cir. 1998)
8. U.S. v. Veal,1l53 F.3d 1233 (11th Cir. 1998)
9. NASA v. NLRA, 119 S. Ct. 1979 (1999)
10. Driebel, v. City of Milwaukee, 298 F.3d 622 (7th Cir. 2002)
11. Dwan v. City of Boston, 329 F. 3d 275 (1st Cir. 2003)
12. U.S. v. Waldon, 363 F.3d 1103 (11th Cir. 2004)
13. Luna v. Mass., 354 F.3d 108 (1st Cir. 2004)
14. Kirkpatrick v. City of Los Angeles, 803 F.2d 485 (9th Cir.
1986)
15. O’Connor v. Ortega, 480 U.S. 709 (1987)

16. Copeland v. Philadelphia Police Department, 840 F.2d 1139
(3rd Cir. 1989)
17. Murphy v. Waterfront Commission, 378 U.S. 52 (1964)
Module Six:
Free Speech:
1. Pickering v. Board of Education, 88 S.Ct. 1731 (1968)
2. Connick v. Myers, 103 S. Ct. 1684 (1983)
3. Rankin v. McPherson, 107 S. Ct. 2891 (1987)
Analysis of Free Speech Cases:
4. Skaarup v. N. Las Vegas, 320 F.3d 1040 (9th Cir. 2003)
5. Eiland v. City of Montgomery, 797 F.2d 953 (11th Cir. 1986)
6. Pappas v. Guiliani, 118 F. Supp. 2d 433 (S.D.N.Y. 2000)
7. City of San Diego v. Roe, 543 U.S. 77 (2004) (off-duty
speech)
Political Activity/Speech:
8. Meaney v. Dever, 326 F.3d 283 (1st Cir. 2003)
Testimony to Government Body:
9. Reilly v. City of Atlantic City, 532 F. 3d 216 (3rd Cir. 2008)
10. Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004)
11. Hoffman v. Dougher, 2006 WL 2709703 (M.D. Pa. 2006)

(EEOC testimony)
Statements to the Press:
12. Walton v. Safir, 122 F. Supp.2d 466 (S.D.N.Y. 2000)
13. Williams v. Seniff, 342 F.3d 774 (7th Cir. 2003)
14. Nixon v. City of Houston, 511 F.3d 494 (5th Cir. 2007)
Reporting Misconduct:
15. Garcetti v. Ceballos, 126 S. Ct. 1951 (2006)
Violating Chain of Command:
16. Shands v. Kennett, 993 F. 2d 1337 (8th Cir. 1993)
Prior Restraint on Speech:
17. Latino Officers Association v. Safir, 165 F. Supp. 2d 587
(S.D.N.Y. 2001)
Religious Speech:
18. Altman v. Minn. Dept. of Corrections, 251 F.3d 1199 (8th
Cir. 2001)
19. Daniels v. City of Arlington, Texas, 246 F.3d 500 (5th Cir.
2001)

Mixed Motive:
20. Sangendorf-Teal v. Rennsselaer County, 100 F. 3d 270 (2nd
Cir. 1996)
Module Seven:
Privacy – Office:
1. O’Connor v. Ortega, 480 U.S. 709 (1987)
2. Cronin v. Town of Amesbury, 895 F. Supp. 375 (D. Mass.
1995)
Privacy – Video:
3. U.S. v. Taketa, 923 F.2d 665 (9th Cir. 1991)
Privacy – Mixed Motives:
4. Lowe v. City of Macon, 720 F. Supp. 994 (M.D. Ga. 1989)
Privacy – Computers and Disks:
5. U.S. v. Slanina, 283 F. 3d 670 (5th Cir. 2002)
Privacy – Drug Testing:
6. Railway Labor Executives v. Skinner, 934 F.2d 1096 (9th
Cir. 1991)
7. National Treasury Employees Union v. Von Raab, 489 U.S.
656 (1989)
8. National Federation of Federal Employees v. Cheney, 884
F.2d 603 (D.C. Cir. 1989)
9. National Treasury Employees Union v. Department of
Treasury, 25 F.3d 237 (5th Cir. 1994)

Supervisory Liability – Civil Liability:
10. Town of Castle Rock v. Gonzales, 125 S. Ct. 2796 (2005)
11. Stemler v. City of Florence, 126 F. 3d 856 (6th Cir. 1997)
Supervisory Liability – Negligent Hiring and Retention:
12. Commissions of Bryan County v. Brown, 117 S.Ct. 1382
(1997)
Supervisory Liability – Failure to Train:
13. Brower v. Inyo, 109 S. Ct. 1378 (1989)
14. Lewis v. City of St. Petersburg, 260 F. 3d 1260 (11th Cir.
2001)
15. City of Canton v. Harris, 489 U.S. 378 (1989)
16. Forgan v. Howard County, Texas, 494 F.3d 518 (5th Cir.
2007)
Supervisory Liability – Department Policy as Violative of
Rights:
17. Wilson v. Jones, 251 F.3d 1340 (11th Cir. 2001)
18. Garner v. Memphis, 8 F. 3d 358 (6th Cir.1993)
Supervisory Liability – Control and Supervision:
19. Holland v. Harrington, 268 F.3d 1179 (10th Cir. 2001)
Supervisory Liability – Discipline:
20. Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1996)
21. Sims v. Adams, 537 F.2d 829 (5th Cir. 1976)
Supervisory Liability – Direct Act by Supervisor:
22. Lori Graves v. City of Coeur D’Alene, 339 F.3d 828 (9th

Cir. 2003)
Supervisory Liability – Excessive Force:
23. Tennessee v. Garner, 471 U.S. 1 (1985)
24. Thomas v. Durastanti, 607 F.3d 655 (10th Cir. 2010)

Graves v. City of Coeur D’Alene, 339 F.3d 828 (2003)03 Cal. Da.docx

Recommended

Recommended

More Related Content

Similar to Graves v. City of Coeur D’Alene, 339 F.3d 828 (2003)03 Cal. Da.docx

Similar to Graves v. City of Coeur D’Alene, 339 F.3d 828 (2003)03 Cal. Da.docx (20)

More from whittemorelucilla

More from whittemorelucilla (20)

Recently uploaded

Recently uploaded (20)

Graves v. City of Coeur D’Alene, 339 F.3d 828 (2003)03 Cal. Da.docx