Picray v. Sealock

138 F.3d 767, 98 Cal. Daily Op. Serv. 1664, 98 Daily Journal DAR 2339, 1998 U.S. App. LEXIS 4039, 1998 WL 97375
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 9, 1998
DocketNo. 96-36024
StatusPublished
Cited by43 cases

This text of 138 F.3d 767 (Picray v. Sealock) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Picray v. Sealock, 138 F.3d 767, 98 Cal. Daily Op. Serv. 1664, 98 Daily Journal DAR 2339, 1998 U.S. App. LEXIS 4039, 1998 WL 97375 (9th Cir. 1998).

Opinion

CANBY, Circuit Judge:

David Picray appeals the dismissal of his several 42 U.S.C. § 1983 claims arising from his arrest for trespass at an Oregon polling station. We affirm, finding that the claims all falter on either the relevant officials’ qualified immunity, the absence of an offending local policy or custom, or a lack of basis in federal law.

BACKGROUND

Oregon election law provides that “[n]o person, within a polling place, shaE wear a poHtical badge, button, or other insignia.” O.R.S. § 260.695(4). The Secretary of State’s Office interprets this section to prohibit buttons, badges, T-shirts, hats or other paraphernaHa which could reasonably be understood to support or oppose a candidate or measure on the baEot.

On election day 1992, David Picray wore two buttons to the polls in North Albany, Benton County, that attacked a citizen’s group backing a voter initiative then on the baEot. Several signs at the polling station indicated that campaign buttons could not be displayed on the premises. Benton County election volunteer Barbara Pyburn asked Pi-cray to remove his buttons. He refused. Pyburn contacted her superior, Benton County election director Dan Burk, who confirmed that no one was to enter the polling place while wearing a poEtical button. Burk contacted state election director Colleen Sealoek, who advised him to caE local poEce if a voter refused to comply with election laws.

Burk requested assistance from the Benton County Sheriffs Office; City of Albany PoEce Officer Sandy Hammersley was dispatched to the scene. Hammersley directed Picray’s attention to the anti-campaigning signs. He threatened to sue, emphasizing that he “sued aE the time and got a lot of money.” He then began to protest loudly and was asked to keep his voice down so as not to disturb other voters. He eventually left the polling place in order to contact the local media.

When Picray returned, Hammersley had been joined by City of Albany PoEce Corporal Joe Bonitz. Picray approached the poking station. Hammersley and Bonitz told him that he would not be aEowed to enter unless he removed his buttons. Picray attempted to force his way past the officers. He was arrested for criminal trespass and transported to the Benton County jail, where he was held for five hours and then released.1 He was subsequently acquitted of the trespass charge. In a separate action, the Oregon Court of Appeals struck down the anti-campaigning statute under the free speech provision of the Oregon Constitution. Picray v. Secretary of State, 140 Or.App. 592, 916 P.2d 324 (1996), aff'd by an equally divided court, 325 Or. 279, 936 P.2d 974 (1997).

Picray sued Pyburn, Burk, Sealoek, Ham-mersley, Bonitz, Benton County, the City of Albany and state election official Norma Buckno2 (“defendants”) pursuant to 42 U.S.C. § 1983. The district court dismissed all of Picray’s federal claims with prejudice. Picray appeals the dismissal of his actions for false arrest and denial of liberty without due process of law. We address each of these claims in turn.

DISCUSSION

1. The due process claim

Picray contends that Oregon law does not permit an official either to exclude a person from a polling place for wearing poEtical buttons or to arrest an elector for enter[770]*770ing a polling place in disregard of an officer’s orders. He contends that state law therefore creates a Fourteenth Amendment liberty interest in doing so, and that by arresting Picray, defendants deprived him of that interest without due process of law. We review de novo the district court’s grant of summary judgment in favor of defendants. Wilson v. Monarch Life Ins. Co., 971 F.2d 312, 313 (9th Cir.1992).

Violation of state law, of itself, does not establish a deprivation of liberty without due process. See Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir.1981); accord Williams v. Treen, 671 F.2d 892, 900 (5th Cir.1982). Picray relies on the Hewitt v. Helms line of cases, which hold that “a State creates a protected liberty interest by placing substantive limitations on official discretion.” Kentucky v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989). (quoting Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983)); see also Hewitt v. Helms, 459 U.S. 460, 470-71, 103 S.Ct. 864, 870-71, 74 L.Ed.2d 675 (1983). Picray contends that if his arrest was not authorized by Oregon law, it was beyond the defendants’ discretion and an intrusion upon his federal liberty right.

Picray fails to account for the fact that Hewitt was substantially narrowed by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), which shifted the focus of due process liberty claims from a “search for a negative implication from mandatory language” in a prison regulation to a more general search for punishment imposing “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 483, 484, 115 S.Ct. at 2300. We assume for purposes of decision, however, that in other contexts a state statute can create a liberty interest protected by the due process clause. See Carlo v. City of Chino, 105 F.3d 493, 496-500 (9th Cir.1997). Here, however, Picray points to no substantive interest created by state law other than an implied right not to be ¡arrested in particular circumstances. It is apparent that this claim is indistinguishable from a claim of false arrest-arrest without probable cause to believe that Picray was committing an offense for which state law authorized his arrest. The Fourth Amendment already prescribes standards for official conduct in this area. Where an amendment “provides an explicit textual source of constitutional protection against a particular sort of government behavior,” it is that Amendment, not the guarantee of due process, that “must be the guide for analyzing” the complaint. Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994) (plurality opinion) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989)).

Albright speaks directly to this case. It holds that the validity of an arrest must be analyzed under Fourth Amendment standards, not due process standards.

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Bluebook (online)
138 F.3d 767, 98 Cal. Daily Op. Serv. 1664, 98 Daily Journal DAR 2339, 1998 U.S. App. LEXIS 4039, 1998 WL 97375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/picray-v-sealock-ca9-1998.