Hershel Rosenbaum v. Washoe County
2011 U.S. App. LEXIS 23804
| 9th Cir. | 2011Background
- Rosenbaum sold free promotional Nevada State Fair tickets outside the entrance while wearing a KOZZ t-shirt; tickets were free and Rosenbaum charged $5 each for promotion.
- Deputy Sheriff Forbus responded to a complaint; he spoke with KOZZ and witnesses who confirmed ticket sales.
- Rosenbaum was arrested for abuse/neglect or endangerment of a child and for obtaining money by false pretenses; his two children were present.
- Rosenbaum was booked and held overnight; charges were ultimately limited to one felony count of obtaining money by false pretenses and then dropped.
- Washoe County officials moved for summary judgment based on qualified immunity; district court found ambiguity in a later-discovered statute as the basis for immunity.
- Rosenbaum and children filed § 1983 action alleging unlawful arrest and violation of the right to family integrity; court granted in part and denied in part a summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was probable cause for arrest. | Rosenbaum lacked probable cause; no scalping law; facts did not establish crime. | Forbus reasonably believed probable cause existed under statutes cited (205.380, 205.415) or similar. | No probable cause; qualified immunity not available for unlawful arrest. |
| Whether the conduct violated the substantive due process right to family integrity. | Handcuffing in front of children and remarks violated familial integrity. | Conduct did not shock the conscience; no constitutional violation. | Right to family integrity not violated under these facts. |
Key Cases Cited
- Borunda v. Richmond, 885 F.2d 1384 (9th Cir. 1988) (unlawful arrest standard under Fourth Amendment; probable cause matters)
- Ramirez v. City of Buena Park, 560 F.3d 1012 (9th Cir. 2009) (qualified immunity when reasonable belief of probable cause exists)
- Devenpeck v. Alford, 543 U.S. 146 (U.S. 2004) (probable cause determined by facts known and applicable laws)
- Crowe v. County of San Diego, 608 F.3d 406 (9th Cir. 2010) (probable cause analysis involves facts and law known to officer at arrest)
- Ashcroft v. al-Kidd, 131 S. Ct. 2074 (U.S. 2011) (two-prong test for qualified immunity; clearly established right required)
- Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (adopts order-of-analysis flexibility in qualified immunity)
- Anderson v. Creighton, 483 U.S. 635 (U.S. 1987) (objective reasonableness of official's conduct; clearly established law)
- Saucier v. Katz, 533 U.S. 194 (U.S. 2001) (requirement to decide first whether the violated right was clearly established (later modified))