Hershel Rosenbaum v. Washoe County , 663 F.3d 1071 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERSHEL OSCAR ROSENBAUM; C. R.; 
J. R.,
Plaintiffs-Appellants, No. 10-15637
v. D.C. No.
WASHOE COUNTY; DENNIS BALAAM,  3:08-cv-00418-ECR-
RAM
in his official capacity; MICHAEL
HALEY, in his official capacity; ORDER AND
JAMES FORBUS, in his individual OPINION
capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Argued and Submitted
May 11, 2011—San Francisco, California
Filed November 30, 2011
Before: M. Margaret McKeown, Ronald M. Gould, and
Milan D. Smith, Jr., Circuit Judges.
Per Curiam Opinion
20535
20538 ROSENBAUM v. WASHOE COUNTY
COUNSEL
Robert R. Hager and Treva J. Hearne, Hager & Hearne, Reno,
Nevada, for the appellants.
David Creekman, Herbert Kaplan, Washoe County District
Attorney’s Office, Reno, Nevada, for the appellees.
ORDER
The petition for panel rehearing is GRANTED. The opin-
ion in the above-captioned matter filed on August 22, 2011,
and published at 654 F.3d 1001, is WITHDRAWN. The
superseding opinion shall be filed concurrently with this
order.
The parties shall have fourteen (14) days from entry of the
superseding opinion to file petitions for rehearing or petitions
for rehearing en banc in the above-captioned matter.
IT IS SO ORDERED.
ROSENBAUM v. WASHOE COUNTY 20539
OPINION
PER CURIAM:
Hershel Oscar Rosenbaum (“Rosenbaum”) and his children
appeal the district court’s order granting the defendants’
motion for summary judgment on the grounds of qualified
immunity.
Rosenbaum was arrested as he stood outside a fair selling
promotional tickets that he had received for free from a radio
station. He was wearing a t-shirt with the logo of the station;
his children, ages eight and four, were standing beside him.
He was arrested for abuse, neglect or endangerment of a child,
and obtaining money under false pretenses. Officers walked
his children across the street to the car where their mother was
waiting. On the way, they told the children that what their
father did “was wrong,” that “you know what your father did
was wrong,” and that he was going to jail for what he had
done. Rosenbaum spent eight hours in jail and was released
on bail. He had in fact not violated any statute. There is no
scalping law in Nevada; no other charge applied to his con-
duct. The charges against him were ultimately dropped.
Rosenbaum and his children brought a § 1983 suit against
Washoe County, County Sheriff Dennis Balaam, County Dep-
uty Sheriff Lieutenant James Forbus (“Forbus “), and Under-
sheriff Michael Haley, for damages resulting from the
unlawful arrest. They claimed a violation of two constitu-
tional rights: (1) the right to be free from unlawful arrest
under the Fourth and Fourteenth Amendment, and (2) the sub-
stantive and procedural due process right to family integrity
under the Fourteenth Amendment. They also brought state
claims for libel, assault, battery, negligent and intentional
infliction of emotional distress, false arrest, and false impris-
onment.
The County defendants moved for summary judgment on
the grounds of qualified immunity, and the district court
20540 ROSENBAUM v. WASHOE COUNTY
granted the motion. The district court held that while the
arresting officer, Forbus, did not have probable cause to arrest
Rosenbaum, he was entitled to qualified immunity because a
criminal statute, “collecting for benefit without authority,”
Nev. Rev. Stat. § 205.415, which was offered by the defen-
dants to justify the arrest, was ambiguous.
Significantly, the statute on which the district court relied
in finding qualified immunity was unknown to Forbus at the
time of the arrest. It has no published authority or legislative
history. While there is a factual dispute about when the
County defendants found this statute, it is clear that it was
found at some point after the arrest and even after Rosenbaum
was released. The Rosenbaums allege that it was the district
attorney who found it after this § 1983 case was brought,
almost two years after the arrest. The County defendants
claim that it was Officer Forbus who found the statute. A
Westlaw search of Nevada law found not a single reference
to this statute other than in this case.
The district court further held that while the officer’s com-
ments to the children were offensive, they did not rise to the
level of a constitutional violation.
For the reasons that follow, we reverse the district court’s
ruling on qualified immunity for the unlawful arrest and
affirm the district court’s ruling on the right to integrity of the
family.
BACKGROUND
Rosenbaum received free promotional tickets for the
Nevada State Fair from the Reno radio station KOZZ. On
August 26, 2006, Rosenbaum stood across the street from the
entrance to the fair with his children and sold the tickets for
the discounted price of $5 per ticket. He was wearing a t-shirt
with the KOZZ logo at the time.
ROSENBAUM v. WASHOE COUNTY 20541
Deputy Sheriff Forbus responded to a complaint by fair
personnel that an individual was attempting to sell free pro-
motional tickets. He spoke with KOZZ, the radio station that
distributed the free tickets and sponsored the event, and was
told that no one had been authorized to sell tickets for a profit.
He then spoke with three witnesses who had bought tickets
from Rosenbaum. He called for back up and approached
Rosenbaum. Rosenbaum first denied and then admitted to
selling the tickets. Forbus placed him under arrest.
Rosenbaum’s two children were escorted to their mother,
who was in a parked vehicle a short distance away. Forbus—
and perhaps other officers—told them that what their father
had done “was wrong,” that “you know what your father did
was wrong,” and that their father was going to jail for what
he had done.
Rosenbaum was booked on felony charges for abuse,
neglect, or endangerment of a child and for obtaining money
by false pretenses, as well as on a misdemeanor charge for
obtaining money under false pretenses. He was released on
bail the following day. The Washoe County District Attor-
ney’s Office would later charge Rosenbaum only with one
felony count of obtaining money by false pretenses and then
drop the charge.
This lawsuit was filed on August 1, 2008. The Rosen-
baums’ complaint asserts nine causes of action: (1) False
Arrest, Unlawful Detention, False Imprisonment and Mali-
cious Prosecution Pursuant to the Fourteenth Amendment and
42 U.S.C. § 1983; (2) Violation of Substantive and Procedural
Due Process Right to Familial Integrity, and of Liberty Inter-
est to Rear Children Without Unreasonable Government
Interference; (3) Libel (based on a August 26, 2006, press
release requesting information about Rosenbaum and the sale
of the tickets); (4) Libel (based on a August 31, 2006 press
release); (5) Assault; (5) Battery; (6) Intentional Infliction of
Emotional Distress; (7) Negligent Infliction of Emotional Dis-
20542 ROSENBAUM v. WASHOE COUNTY
tress; (8) False Arrest; and (9) False Imprisonment. They seek
damages in an amount in excess of $10,000 on each of these
causes of action.
The County defendants moved for summary judgment on
July 10, 2009. The district court granted summary judgment
on the grounds of qualified immunity in an unpublished deci-
sion on February 25, 2010. Rosenbaum v. Washoe County,
No. 08-418, 2010 WL 745451 (D. Nev. Feb. 25, 2010). Hav-
ing dismissed the federal claims, the district court declined to
exercise jurisdiction over the pendent state claims. Id. at *8.
The Rosenbaums appealed to this court on March 23, 2010.
STANDARD OF REVIEW
This court reviews a district court’s ruling on summary
judgment on the grounds of qualified immunity de novo.
McSherry v. City of Long Beach, 584 F.3d 1129, 1134 (9th
Cir. 2009), cert. denied, 131 S. Ct. 79 (2010). Summary judg-
ment will be granted—or affirmed—where “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation
marks and citation omitted); Fed. R. Civ. P. 56. In making
this determination, we will consider all of the facts in the light
most favorable to Rosenbaum. See Scott v. Harris, 550 U.S.
372, 378 (2007).
DISCUSSION
The court applies a two-prong analysis to determine
whether officials are entitled to qualified immunity: (1)
whether the facts alleged show that the officer violated a con-
stitutional right; and (2) if so, whether that right was clearly
established at the time of the event. See Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2080 (2011). These two questions may be
ROSENBAUM v. WASHOE COUNTY 20543
considered in either order. Pearson v. Callahan, 555 U.S.
223, 236 (2009). The linchpin of qualified immunity is the
reasonableness of the official’s conduct. Anderson v. Creigh-
ton, 483 U.S. 635, 638-39 (1987) (“[W]hether an official pro-
tected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on the
objective legal reasonableness of the action, assessed in light
of the legal rules that were clearly established at the time it
was taken.” (emphasis added) (internal quotation marks and
citations omitted)).
In this case, the Rosenbaums allege that the officials vio-
lated two constitutional rights: the right to be free from
unlawful arrest and the substantive due process right to family
integrity. We will consider each in turn, addressing first
whether the right was violated, and then whether the law was
clearly established such that the official would have been on
notice that his conduct was unlawful.
I. Unlawful Arrest
[1] It is well established that “an arrest without probable
cause violates the Fourth Amendment and gives rise to a
claim for damages under § 1983.” Borunda v. Richmond, 885
F.2d 1384, 1391 (9th Cir. 1988). An officer who makes an
arrest without probable cause, however, may still be entitled
to qualified immunity if he reasonably believed there to have
been probable cause. See Ramirez v. City of Buena Park, 560
F.3d 1012, 1024 (9th Cir. 2009).
In the context of an unlawful arrest, then, the two prongs
of the qualified immunity analysis can be summarized as: (1)
whether there was probable cause for the arrest; and (2)
whether it is reasonably arguable that there was probable
cause for arrest—that is, whether reasonable officers could
disagree as to the legality of the arrest such that the arresting
officer is entitled to qualified immunity. Jenkins v. City of
New York, 478 F.3d 76, 87 (2d Cir. 2007) (noting that an offi-
20544 ROSENBAUM v. WASHOE COUNTY
cer will not be entitled to qualified immunity “if officers of
reasonable competence would have to agree that the informa-
tion possessed by the officer at the time of arrest did not add
up to probable cause”).1
A. Probable Cause
[2] An officer has probable cause to make a warrantless
arrest when the facts and circumstances within his knowledge
are sufficient for a reasonably prudent person to believe that
the suspect has committed a crime. Crowe v. County of San
Diego, 608 F.3d 406, 432 (9th Cir. 2010), cert. denied, 131
S. Ct. 905, 907 (2011). The analysis involves both facts and
law. The facts are those that were known to the officer at the
time of the arrest. The law is the criminal statute to which
those facts apply.
The district court cited Devenpeck for the proposition that
there will be probable cause so long as the facts known to the
officer give rise to probable cause “for any criminal offense.”
Rosenbaum, 2010 WL 745451, at *3 (emphasis added) (citing
Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004)). The dis-
trict court then considered three criminal statutes and found
no probable cause. Rosenbaum, 2010 WL 745451, at *4-5.
We agree with the district court that the facts known to For-
bus did not give rise to probable cause for any offense. When
Forbus arrested Rosenbaum, he knew the following facts:
Forbus had received a complaint by State Fair personnel that
1
To be sure, the application of the qualified immunity doctrine varies
with the nature of the right. Some constitutional rights are stated in rela-
tively specific rules. Some, like the Fourth Amendment’s prohibition
against unreasonable searches and seizures, are not. Allowance for reason-
able error is already built into the underlying constitutional standard in the
first instance—before a qualified immunity analysis. As such, as one
scholar described it, qualified immunity is cast in terms of whether there
was “reasonably unreasonable” behavior. See John C. Jeffries, What’s
Wrong with Qualified Immunity, 62 Fla. L. Rev. 851, 860 (2010).
ROSENBAUM v. WASHOE COUNTY 20545
an individual was attempting to sell free promotional tickets
to the fair. He had spoken with KOZZ, the radio station that
distributed the free tickets and sponsored the event, and was
told that no one had been authorized to sell the tickets for a
profit. Forbus saw Rosenbaum standing with his children,
wearing a t-shirt with the KOZZ logo. Forbus spoke with
three witnesses who confirmed that they had purchased tickets
for $5 each. When he approached and spoke with Rosenbaum,
Rosenbaum first denied but then admitted to having sold tick-
ets.
The County defendants acknowledged that there was no
probable cause for abuse, neglect or endangerment of a child.
They proposed that there was probable cause for two
offenses: “obtaining money by false pretenses” in violation of
Nev. Rev. Stat. § 205.380 (2005) (now codified at Nev. Stat.
§ 205.380 (2011)); and “collecting for benefit without author-
ity” in violation of § 205.415 (2005) (now codified at Nev.
Stat. § 205.415 (2011)). We address each offense in turn.
1. Obtaining money by false pretenses
[3] Section 205.380, obtaining money by false pretenses,
provides:
A person who knowingly and designedly by any
false pretense obtains from any other person . . .
money . . . with the intent to cheat or defraud the
other person, is a cheat, and, unless otherwise pre-
scribed by law, shall be punished[.]
The elements of this crime are: the intent to defraud, a false
representation, reliance on that representation, and that the
victim is defrauded. Barron v. State, 783 P.2d 444, 449 (Nev.
1989). In this case, however, there was no evidence to suggest
that Rosenbaum intended to defraud his customers or that he
was misrepresenting himself. He was openly selling promo-
tional tickets, that he had received for free, for a price of $5.
20546 ROSENBAUM v. WASHOE COUNTY
His customers received exactly what they paid for; they were
not victims of fraud. This is not a case, for example, where
someone was selling counterfeit or fake tickets. The district
court held, supported by the record, that these facts do not
give rise to probable cause for obtaining money under false
pretenses.
2. Collecting for benefit without authority
Section 205.415, “collecting for benefit without authority,”
provides:
A person who sells one or more tickets to any ball,
benefit or entertainment, or asks or receives any sub-
scription or promise thereof, for the benefit or pre-
tended benefit of any person, association or order,
without being authorized thereto by the person, asso-
ciation or order for whose benefit or pretended bene-
fit it is done, shall be punished[.]
The County defendants argue that Rosenbaum appeared to be
holding himself out as a representative of KOZZ because he
was wearing their t-shirt. He appeared, they argue, to be sell-
ing tickets for the benefit of KOZZ. And because he was
unauthorized to do so, he appeared to be violating this statute.
This interpretation assumes that the statute makes it a crime
to sell tickets for the pretended benefit of another.
[4] The district court, however, interpreted the statute dif-
ferently. The district court reasoned—and we agree—that the
purpose of the offense is to protect charities from fraud.
Rosenbaum, 2010 WL 745451, at *5. The district court noted
that there is no published authority, state or federal, that con-
strues the provision, nor is there any legislative history that
clarifies its terms. Id. As such, the district court was obliged
to predict how the Nevada Supreme Court would have inter-
preted the statute. Id. The district court emphasized the provi-
sion’s title, “Collecting for benefit without authority,” and
ROSENBAUM v. WASHOE COUNTY 20547
found that a common-sense reading suggests that the provi-
sion makes it a crime to sell tickets to a charity event (ball,
concert, or entertainment) without authorization. Id. The
phrase “for the benefit or pretended benefit of any person”
modifies “any ball, benefit or entertainment” instead of modi-
fying the word “tickets.” In other words, it is a crime to sell
tickets without authorization to an event that benefits another
rather than to sell tickets without authorization for the benefit
of another. Id. As such, the facts known to Forbus at the time
of the arrest did not give rise to probable cause for “collecting
for benefit without authority” because the fair was not a char-
ity event. Id.[5] We agree with the district court and conclude that there
was no probable cause to arrest Rosenbaum, and his constitu-
tional right to be free from unlawful arrest was violated.
B. Reasonable Belief of Probable Cause
[6] Even if the arrest was made without a warrant and
without probable cause, however, the officer may still be
immune from suit if it was objectively reasonable for him to
believe that he had probable cause. Ramirez, 560 F.3d at
1024. The linchpin of the qualified immunity analysis is the
reasonableness of the officer’s conduct in the particular case
at hand. Anderson, 483 U.S. at 638. The law acknowledges
that an otherwise competent officer will sometimes make an
unreasonable decision or make an unreasonable mistake as to
law or fact. In those instances, the officer will appropriately
be liable under § 1983. See Liberal v. Estrada, 632 F.3d 1064,
1078 (9th Cir. 2011) (denying qualified immunity because the
officer’s mistake of fact was unreasonable).
Framing the reasonableness question somewhat differently,
the question in determining whether qualified immunity
applies is whether all reasonable officers would agree that
there was no probable cause in this instance. See Ashcroft,
131 S. Ct. at 2083 (holding that an official is not entitled to
20548 ROSENBAUM v. WASHOE COUNTY
qualified immunity where “every reasonable official” would
have understood that he was violating a clearly established
right (emphasis added) (internal quotation marks and citation
omitted)).2
In this case, Forbus does not allege that he made any mis-
take of fact that would have led to probable cause. Nor does
he allege that he misunderstood the law at the time of the
arrest. Rather, the district court granted qualified immunity to
Forbus on the grounds that a later-discovered statute, that
could arguably apply to the facts of this case, is ambiguous.
Rosenbaum, 2010 WL 745451, at *6.
To be sure, the law must be clearly established such that it
would “be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier v. Katz, 533
U.S. 194, 202 (2001), overruled on other grounds by Pearson,
555 U.S. 223; see also Ramirez, 560 F.3d at 1024. The pur-
pose of qualified immunity is to ensure that officers are given
fair notice of the law that they are required to uphold. Ander-
son, 483 U.S. at 640.
This is not a case where courts disagree about the contours
of a constitutional right or where officers may be confused
about what is required of them under various circumstances.
As our analysis establishes, the statute is unambiguous, and
2
The Court uses the language “all reasonable officers” or “every reason-
able officer” to explain that it must be clear that the conduct is unlawful;
qualified immunity will attach whenever reasonable officers could dis-
agree about whether the facts in the particular case give rise to probable
cause. The law does not imply, however, that police officers are the ulti-
mate arbiters of constitutional questions. The lawfulness of their conduct
does not turn on whether all, or most, officers think that the law is clearly
established. For example, if the Supreme Court has issued an opinion con-
demning racial profiling, but 90 percent of the police in a given geo-
graphic area think racial profiling is just fine, an officer would not be
entitled to qualified immunity simply because his fellow officers disagree
with a clear Supreme Court ruling.
ROSENBAUM v. WASHOE COUNTY 20549
not susceptible to the reading that the county suggests. There-
fore, no reasonable officer could believe that Rosenbaum’s
conduct violated this statute.
[7] Considering the facts in the light most favorable to
Rosenbaum, all reasonably competent officers would have
agreed that he was not committing a crime. There is no scalp-
ing law in Nevada; it is simply not a crime to sell tickets to
a fair—even when the tickets were received for free. His t-
shirt did not suggest fraud, nor were the ticket buyers duped
by the sale.
[8] The district court’s grant of summary judgment on the
grounds of qualified immunity for an unlawful arrest is
reversed.
II. Substantive Due Process Right to Family Integrity
Next, Rosenbaum and his children argue that Forbus vio-
lated their substantive due process right to family integrity
when he handcuffed Rosenbaum in front of his children,
escorted the children to their mother, asked them whether
Rosenbaum had been selling tickets and whether they knew
what he was doing was wrong, and told them that it “was
wrong” and that he was going to jail for it. The question is
whether these facts—taken in the light most favorable to the
Rosenbaums—rise to the level of a constitutional violation.
[9] The substantive due process right to family integrity or
to familial association is well established. A parent has a
“fundamental liberty interest” in companionship with his or
her child. Kelson v. City of Springfield, 767 F.2d 651, 654-55
(9th Cir. 1985). A state may not interfere with this liberty
interest, and indeed the violation of the right to family integ-
rity is subject to remedy under § 1983. Id. To amount to a vio-
lation of substantive due process, however, the harmful
conduct must “shock[ ] the conscience” or “offend the com-
munity’s sense of fair play and decency.” Rochin v. Califor-
20550 ROSENBAUM v. WASHOE COUNTY
nia, 342 U.S. 165, 172-73 (1952); see also Pittsley v. Warish,
927 F.2d 3 (1st Cir. 1991) (abrogated on other grounds). For
example, we have held that a plaintiff stated a claim under
§ 1983 for a violation of the right to family integrity where
her mentally disabled son was mistaken for another person,
falsely arrested, caused to be extradited to New York from
California, and imprisoned; the police department misin-
formed her of his whereabouts on several occasions until he
was finally released two years later. Lee v. City of Los Ange-
les, 250 F.3d 668, 685-86 (9th Cir. 2001). In Kelson, we held
that parents had stated a cause of action for a violation of their
right to companionship and society of a child where their
teenage son had committed suicide at school. Kelson, 767
F.2d at 653-55.
[10] The facts of the case before us do not come close to
rising to the level of conduct that “shocks the conscience.”
Unlike Lee or Kelson, Rosenbaum was not separated from his
children for any extended period of time; rather, the children
were walked across the street to their mother who was waiting
in their car. It is true that Forbus’s—and perhaps other
officers’—words to the children were inappropriate and even
offensive. The children’s father had not in fact done anything
“wrong” and Forbus likely exacerbated an already traumatic
experience for this four year old and eight year old. And yet
we do not hold that the inappropriate conduct amounts to a
constitutional violation.
We do not imply that verbal abuse—and even verbal abuse
to children in the midst of an arrest—would never rise to the
level of a constitutional violation. Rather, in this instance, the
officers’ conduct does not “shock the conscience.”
[11] Because we conclude that the Rosenbaums’ right to
family integrity was not violated, we need not reach the ques-
tion of whether Forbus is entitled to qualified immunity for
the violation of the right to family integrity.
ROSENBAUM v. WASHOE COUNTY 20551
CONCLUSION
For the foregoing reasons, the district court’s decision
granting summary judgment to the defendants is reversed on
the unlawful arrest claim and affirmed on the right to family
integrity claim. The case is remanded to the district court for
proceedings consistent with this opinion. Each party shall
bear its own costs.
AFFIRMED in part and REVERSED and
REMANDED in part.