NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
AMERICAN NEWS AND No. 16-55770 INFORMATION SERVICES, INC., a Connecticut corporation; EDWARD D.C. No. PERUTA; JAMES C. PLAYFORD, 3:12-cv-02186-BEN-KSC
Plaintiffs-Appellants, MEMORANDUM* v.
WILLIAM D. GORE, individually and in his official capacity as San Diego County Sheriff; JAN CALDWELL, individually and in her official capacity as San Diego County Sheriffs Department Public Affairs Director; THOMAS SEIVER, San Diego County Sheriffs Department Deputy, individually; BRENDAN COOK, San Diego County Sheriffs Department Deputy, individually; JESSE ALLENSWORTH, San Diego County Sheriffs Department Deputy, individually; JAMES BRENEMAN, San Diego County Sheriffs Department Deputy, individually; MICHAEL PROCTOR, San Diego County Sheriffs Department Deputy, individually; SAN DIEGO COUNTY SHERIFF'S DEPARTMENT; WILLIAM LANSDOWNE, individually and in his official capacity as San Diego Police Chief; SAN DIEGO POLICE DEPARTMENT; BONNIE DUMANIS, Individually and in
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. her official capacity as San Diego County District Attorney; SAN DIEGO COUNTY DISTRICT ATTORNEY'S OFFICE, individually; JOHN DOE 1-10; CITY OF SAN DIEGO; COUNTY OF SAN DIEGO,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding
Argued and Submitted February 5, 2018 Resubmitted July 24, 2019 Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,** District Judge.
James Playford and American News & Information Services, Inc. (American
News) appeal an adverse judgment on their claims arising out of Playford’s
interactions with San Diego County officials while working as a freelance
photojournalist. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
1. The district court correctly dismissed Playford’s First Amendment
retaliatory arrest, search, and seizure claims against the arresting officers, though it
did so based on qualified immunity. The Supreme Court recently held that “[t]he
plaintiff pressing a retaliatory arrest claim must plead and prove the absence of
** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.
2 probable cause for the arrest.” Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019).
Playford concedes that the officers had probable cause for his first three arrests,
and the allegations in the complaint about his fourth arrest on May 25, 2012, for
violation of California Penal Code § 148(a)(1), establish the existence of probable
cause for that arrest. Because Playford has not demonstrated that an exception to
the no-probable-cause requirement applies, see Nieves, 139 S. Ct. at 1727; Lozman
v. City of Rivera Beach, 138 S. Ct. 1945, 1951, 1954–55 (2018), his claims fail as a
matter of law. Because we can affirm on any basis fairly presented in the record,
see Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017), we affirm the
dismissal of these claims.
2. The district court correctly dismissed Playford’s Fourth Amendment false
arrest claim on qualified immunity grounds. See White v. Pauly, 137 S. Ct. 548,
551 (2017) (per curiam). The arresting officers are entitled to qualified immunity
because it was “reasonably arguable that there was probable cause” to arrest
Playford for failing to abide by their order to leave the accident scene on May 25,
2012. Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011) (per
curiam). The arresting officers reasonably believed that they could order Playford
to leave the accident scene because they had been informed he was not a member
of the media and he lacked government-issued media credentials. See Cal. Penal
3 Code § 409.5(a); L.A. Free Press, Inc. v. City of Los Angeles, 88 Cal. Rptr. 605,
610–11 (Ct. App. 1970).
3. The district court correctly dismissed Playford’s Fourth Amendment
wrongful search and seizure claim against the arresting officers on the basis of
qualified immunity. See White, 137 S. Ct. at 551. At the time when the officers
seized Playford’s camera incident to his arrests on March 9, 2010, December 1,
2011, and May 25, 2012, Supreme Court authority did not clearly establish that it
was unlawful for police officers to seize and search a digital camera incident to an
arrest. See United States v. Chadwick, 433 U.S. 1, 14–15 (1977), abrogated on
other grounds by California v. Acevedo, 500 U.S. 565 (1991).
4. The district court correctly dismissed Playford’s federal Privacy Protection
Act (PPA) claim. The PPA prohibits law enforcement from seizing “any work
product materials possessed by a person reasonably believed to have a purpose to
disseminate to the public a newspaper, book, broadcast, or other similar form of
public communication.” 42 U.S.C. § 2000aa(a). However, the statute’s “suspect
exception” bars a PPA claim if “there is probable cause to believe that the person
possessing such materials has committed or is committing the criminal offense to
which the materials relate.” Id. § 2000aa(a)(1). Because there was probable cause
to arrest Playford on March 9, 2010, December 1, 2011, and May 25, 2012, and
4 Playford’s camera documented the incidents leading to his arrests, the suspect
exception bars Playford’s PPA claim.
5. The district court correctly concluded that Playford failed to raise a disputed
issue of material fact as to whether Public Information Officer Jan Caldwell’s
conduct “would chill a person of ordinary firmness” from exercising his First
Amendment rights or whether there was a causal connection between Caldwell’s
conduct and any adverse action. See Blair v. Bethel Sch. Dist., 608 F.3d 540, 543
(9th Cir. 2010). Caldwell shared an accurate message, that Playford was not a
member of the government-credentialed news media, with the lobby deputies at the
Sheriff’s Administrative Center, and there was no evidence that this message,
accompanying Playford’s photo, was circulated to the arresting officers in the field.
See Mulligan v. Nichols, 835 F.3d 983, 989–90 (9th Cir. 2016) (discussing the
“high bar” for “analyzing whether speech by government officials is sufficiently
adverse to give rise to a First Amendment retaliation claim”). Moreover, the
presence of probable cause to support Playford’s arrests forecloses this claim to the
extent his arrests are the relevant “adverse action.” See Nieves, 139 S. Ct. at 1724–
25.
6. The district court correctly dismissed Playford’s First Amendment
retaliation claim against District Attorney Bonnie Dumanis.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
AMERICAN NEWS AND No. 16-55770 INFORMATION SERVICES, INC., a Connecticut corporation; EDWARD D.C. No. PERUTA; JAMES C. PLAYFORD, 3:12-cv-02186-BEN-KSC
Plaintiffs-Appellants, MEMORANDUM* v.
WILLIAM D. GORE, individually and in his official capacity as San Diego County Sheriff; JAN CALDWELL, individually and in her official capacity as San Diego County Sheriffs Department Public Affairs Director; THOMAS SEIVER, San Diego County Sheriffs Department Deputy, individually; BRENDAN COOK, San Diego County Sheriffs Department Deputy, individually; JESSE ALLENSWORTH, San Diego County Sheriffs Department Deputy, individually; JAMES BRENEMAN, San Diego County Sheriffs Department Deputy, individually; MICHAEL PROCTOR, San Diego County Sheriffs Department Deputy, individually; SAN DIEGO COUNTY SHERIFF'S DEPARTMENT; WILLIAM LANSDOWNE, individually and in his official capacity as San Diego Police Chief; SAN DIEGO POLICE DEPARTMENT; BONNIE DUMANIS, Individually and in
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. her official capacity as San Diego County District Attorney; SAN DIEGO COUNTY DISTRICT ATTORNEY'S OFFICE, individually; JOHN DOE 1-10; CITY OF SAN DIEGO; COUNTY OF SAN DIEGO,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding
Argued and Submitted February 5, 2018 Resubmitted July 24, 2019 Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,** District Judge.
James Playford and American News & Information Services, Inc. (American
News) appeal an adverse judgment on their claims arising out of Playford’s
interactions with San Diego County officials while working as a freelance
photojournalist. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
1. The district court correctly dismissed Playford’s First Amendment
retaliatory arrest, search, and seizure claims against the arresting officers, though it
did so based on qualified immunity. The Supreme Court recently held that “[t]he
plaintiff pressing a retaliatory arrest claim must plead and prove the absence of
** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.
2 probable cause for the arrest.” Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019).
Playford concedes that the officers had probable cause for his first three arrests,
and the allegations in the complaint about his fourth arrest on May 25, 2012, for
violation of California Penal Code § 148(a)(1), establish the existence of probable
cause for that arrest. Because Playford has not demonstrated that an exception to
the no-probable-cause requirement applies, see Nieves, 139 S. Ct. at 1727; Lozman
v. City of Rivera Beach, 138 S. Ct. 1945, 1951, 1954–55 (2018), his claims fail as a
matter of law. Because we can affirm on any basis fairly presented in the record,
see Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017), we affirm the
dismissal of these claims.
2. The district court correctly dismissed Playford’s Fourth Amendment false
arrest claim on qualified immunity grounds. See White v. Pauly, 137 S. Ct. 548,
551 (2017) (per curiam). The arresting officers are entitled to qualified immunity
because it was “reasonably arguable that there was probable cause” to arrest
Playford for failing to abide by their order to leave the accident scene on May 25,
2012. Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011) (per
curiam). The arresting officers reasonably believed that they could order Playford
to leave the accident scene because they had been informed he was not a member
of the media and he lacked government-issued media credentials. See Cal. Penal
3 Code § 409.5(a); L.A. Free Press, Inc. v. City of Los Angeles, 88 Cal. Rptr. 605,
610–11 (Ct. App. 1970).
3. The district court correctly dismissed Playford’s Fourth Amendment
wrongful search and seizure claim against the arresting officers on the basis of
qualified immunity. See White, 137 S. Ct. at 551. At the time when the officers
seized Playford’s camera incident to his arrests on March 9, 2010, December 1,
2011, and May 25, 2012, Supreme Court authority did not clearly establish that it
was unlawful for police officers to seize and search a digital camera incident to an
arrest. See United States v. Chadwick, 433 U.S. 1, 14–15 (1977), abrogated on
other grounds by California v. Acevedo, 500 U.S. 565 (1991).
4. The district court correctly dismissed Playford’s federal Privacy Protection
Act (PPA) claim. The PPA prohibits law enforcement from seizing “any work
product materials possessed by a person reasonably believed to have a purpose to
disseminate to the public a newspaper, book, broadcast, or other similar form of
public communication.” 42 U.S.C. § 2000aa(a). However, the statute’s “suspect
exception” bars a PPA claim if “there is probable cause to believe that the person
possessing such materials has committed or is committing the criminal offense to
which the materials relate.” Id. § 2000aa(a)(1). Because there was probable cause
to arrest Playford on March 9, 2010, December 1, 2011, and May 25, 2012, and
4 Playford’s camera documented the incidents leading to his arrests, the suspect
exception bars Playford’s PPA claim.
5. The district court correctly concluded that Playford failed to raise a disputed
issue of material fact as to whether Public Information Officer Jan Caldwell’s
conduct “would chill a person of ordinary firmness” from exercising his First
Amendment rights or whether there was a causal connection between Caldwell’s
conduct and any adverse action. See Blair v. Bethel Sch. Dist., 608 F.3d 540, 543
(9th Cir. 2010). Caldwell shared an accurate message, that Playford was not a
member of the government-credentialed news media, with the lobby deputies at the
Sheriff’s Administrative Center, and there was no evidence that this message,
accompanying Playford’s photo, was circulated to the arresting officers in the field.
See Mulligan v. Nichols, 835 F.3d 983, 989–90 (9th Cir. 2016) (discussing the
“high bar” for “analyzing whether speech by government officials is sufficiently
adverse to give rise to a First Amendment retaliation claim”). Moreover, the
presence of probable cause to support Playford’s arrests forecloses this claim to the
extent his arrests are the relevant “adverse action.” See Nieves, 139 S. Ct. at 1724–
25.
6. The district court correctly dismissed Playford’s First Amendment
retaliation claim against District Attorney Bonnie Dumanis. Although the district
court incorrectly concluded that Dumanis was entitled to absolute immunity for her
5 decision to exclude Playford from a news conference on January 4, 2012, she is
entitled to qualified immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 268,
277–78 (1993); Kwan, 854 F.3d at 1093. At the time of the news conference,
California law allowed government officials to treat news media with government-
issued credentials differently from news media without such credentials. See L.A.
Free Press, 88 Cal. Rptr. at 610–11.
7. The district court correctly granted summary judgment in favor of the
County of San Diego and County Sherriff William Gore on Playford’s claim under
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and correctly dismissed the
claim as to Caldwell. Playford did not raise a genuine issue of material fact as to
whether the County was deliberately indifferent to an obvious risk of a
constitutional violation. See Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S.
397, 410–11 (1997); City of Canton v. Harris, 489 U.S. 378, 388–89 (1989). Nor
did Playford establish that any of the individual officials committed constitutional
violations that could support his Monell claim. See Gillette v. Delmore, 979 F.2d
1342, 1346 (9th Cir. 1992) (per curiam); City of Los Angeles v. Heller, 475 U.S.
796, 799 (1986) (per curiam).
8. The district court correctly dismissed all claims asserted by American News
for failure to state a claim. American News cannot vicariously assert claims based
on Playford’s Fourth Amendment rights. See Alderman v. United States, 394 U.S.
6 165, 173–74 (1969); Lyall v. City of Los Angeles, 807 F.3d 1178, 1186 (9th Cir.
2015). Because the sole allegations concerning American News are that the
company owned Playford’s cameras that were seized during his arrests, there is no
factual basis for American News to assert a Fourth Amendment claim on its own
behalf.
AFFIRMED.