James Thomas v. Everett Carroll; John Vial; Brian Powers; Gregory Costanzo

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES THOMAS,
Plaintiff - Appellee,
v.
EVERETT CARROLL; JOHN VIAL;
BRIAN POWERS; GREGORY
COSTANZO,
Defendant - Appellants
and
JAMES MILLER,
Defendant
No. 09-35799
D.C. No. 1:08-cv-3111-CL
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Mark D. Clarke, Magistrate Judge, Presiding
Argued and Submitted October 7, 2010
Portland, Oregon
Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.
FILED
DEC 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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James Thomas was involved in a noisy fight at a highway rest area owned
and operated by the Oregon State Department of Transportation (ODOT). ODOT
officials ordered Thomas permanently excluded from the rest area and, when
Thomas returned to the property, authorized his arrest by the Oregon State Police
for second-degree criminal trespass. Thomas sued under 42 U.S.C. § 1983, arguing
that his arrest was illegal and that his Fourth Amendment rights were violated. The
district court denied the motion of the ODOT individual defendants for summary
judgment on the grounds of qualified immunity. We affirm.
Oregon law defines trespass as entry onto property after being lawfully
excluded. See O.R.S. § 164.205(3)(c). Thomas contends that he had not been
lawfully excluded from the rest area and thus that there was no probable cause for
his arrest. The constitutional proposition that an arrest may not be made without
probable cause of a violation is clearly established. There is a disputed issue
whether the ODOT defendants reasonably believed that they had the authority to
exclude Thomas permanently and had effectively done so. ODOT regulations
governing rest areas do not give the agency authority to exclude someone
permanently from a rest area. OAR 734-030-0010 lists activities prohibited in rest
areas, and OAR 734-030-0015 permits a rest area attendant to order a person

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violating OAR 734-030-0010 to leave the rest area. But OAR 734-030-0015 does
not authorize the agency to ban a person from reentering the property.
The ODOT defendants have asserted that ODOT has a broad, inherent right
as a property owner to exclude persons from the rest area, but they have not
demonstrated that they are entitled to qualified immunity as a matter of law on that
basis. The property in question is owned by the state, appears to be open to the
public, and is intended for public use. ODOT does not necessarily have all the
rights a private land owner might have to bar a particular individual permanently
from entering the property. It remains uncertain, then, whether the ODOT
defendants could have reasonably believed that they had such authority and that
they had effectively exercised it.
AFFIRMED.

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