Callie Maidhof, Zachary Solomon Miller, Joshua Clover, Luzilda Carillo v. Mitchell Celaya

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALLIE MAIDHOF, ZACHARY
SOLOMON MILLER, JOSHUA
CLOVER, LUZILDA CARILLO,
Plaintiffs-Appellees,
v.
MITCHELL CELAYA,
Defendant-Appellant.
No. 13-16800
D.C. No. 3:11-cv-04971-LDB
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding
Argued and Submitted November 18, 2015
San Francisco, California
Before: RAWLINSON, PARKER,† and HURWITZ, Circuit Judges.
FILED
FEB 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
† The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.

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Plaintiffs-Appellees brought this putative class action pursuant to 42 U.S.C.
§ 1983 on behalf of approximately 60 individuals who were arrested on December 11,
2009 on misdemeanor trespass charges while occupying Wheeler Hall, a classroom
building on the University of California, Berkeley campus, to protest budget cuts.
Plaintiffs claim that Defendant-Appellant Mitchell Celaya, the former Chief of the
University of California Police Department (“UCPD”), departed from a plan calling
for field citations and directed that the arrestees be transported to the Santa Rita
County Jail (“Santa Rita”) for booking and citation in retaliation for their protected
First Amendment activities. Celaya appeals from an order of the district court
denying summary judgment on his qualified immunity defense. Because we conclude
that Plaintiffs have failed to present specific, nonconclusory evidence from which a
jury could reasonably infer that Celaya harbored a retaliatory intent, we reverse.
We review the district court’s decision de novo. Davis v. City of Las Vegas,
478 F.3d 1048, 1053 (9th Cir. 2007). To establish a claim for retaliation in violation
of the First Amendment, Plaintiffs must show that Celaya’s conduct “would chill a
person of ordinary firmness from future First Amendment activity” and that his
“desire to chill [their] speech was a but-for cause of [his] allegedly unlawful conduct.”
Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013). “The doctrine of
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qualified immunity protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555
U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“Qualified immunity shields public officials from civil damages for performance of
discretionary functions. It is ‘an immunity from suit rather than a mere defense to
liability; and like an absolute immunity, it is effectively lost if a case is erroneously
permitted to go to trial.’” Mueller v. Auker, 576 F.3d 979, 992 (9th Cir. 2009)
(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Where the evidence of
probable cause is significant and that of retaliatory intent is “very weak,” summary
judgment is particularly appropriate in order to prevent the disruption of government
functions by unfounded claims. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892,
901 (9th Cir. 2008).
We have jurisdiction over this appeal for the limited purpose of resolving
whether Plaintiffs have presented “specific, nonconclusory” evidence of a retaliatory
motive. Jeffers v. Gomez, 267 F.3d 895, 903, 907 (9th Cir. 2001); see also Conner v.
Heiman, 672 F.3d 1126, 1130 n.1 (9th Cir. 2012). We conclude that they have not.
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It is undisputed that Plaintiffs committed misdemeanor trespass. As a result,
Celaya had discretion to issue citations “at the scene or at [an] arresting agency” such
as Santa Rita. Cal. Penal Code § 853.6(g); see also People v. Monroe, 12 Cal. App.
4th 1174, 1193–94 (1993). He testified that he decided to transport the arrestees to
Santa Rita in order to avoid disruptive or possibly violent confrontations with
protesters who were gathering outside of Wheeler Hall. The existence of probable
cause to arrest, while not dispositive, “undoubtedly ‘ha[s] high probative force’” and
undermines a finding that in transporting the arrestees to Santa Rita Celaya was
motivated by a desire to chill their protected activities. Dietrich, 548 F.3d at 901
(quoting Hartman v. Moore, 547 U.S. 250, 265 (2006)).
As support for their contention that Celaya harbored a retaliatory motive,
Plaintiffs rely upon three emails that he authored in the week leading up to the arrests.
In a December 7 email, Celaya explained that the UCPD was willing to accommodate
the protesters and expressed frustration over the fact that they had not negotiated in
good faith and had changed their minds after agreeing to leave the auditorium. He
also described concerns, some of which had been raised by third parties, over damage
to university property, clean-up costs, and disruption to university activities resulting
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from the protests. However, nothing in the email evinces hostility toward the
protesters because they were demonstrating against budget cuts.
Similarly, in a December 9 email, Celaya suggested that the protesters’ decision
to have an all-night concert on December 11 “is not about issues and addressing a
need but seeing how far they can push the envelope & party.” Like the December 7
email, this email suggests that Celaya was cognizant of the protesters’ purported aims
but that they did not appear to him to be interested in engaging in protest activities.
Nothing in the email suggests any hostility towards the protesters because of their
protest of budget cuts.
Finally, in a December 11 email sent to the campus’s Crisis Management Team
after Plaintiffs were arrested, Celaya stated:
As Captain Bennett mentioned we will have a team of officers monitor the
proposed rally at 11:30 am. The good news is that the arrested protesters are
still at Santa Rita getting booked so they won’t be able to participate in the
rally. . . . At the moment there is a rally going on with approx. 40 in
attendance, we will see if they get more support.
Appellees argue that the second sentence reflects Celaya’s satisfaction that protesters
had been transported off campus for booking for demonstrating against the budget
cuts. However, the full context of the email makes clear that he was concerned about
crowd control. The first and last quoted sentences indicate that the UCPD was
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monitoring the size of the rally. The second sentence highlights the “good news” that
the arrestees were still at Santa Rita and therefore would not be able to attend the rally.
Moreover, because Celaya was unaware of the December 11 rally when he decided
to transport the arrestees to Santa Rita, that decision could not have been motivated
by a desire to prevent their participation in the later rally.
The remaining evidence is similarly insufficient to create a genuine issue of fact
as to retaliatory intent. Appellees claim that Celaya delayed processing of the
arrestees for two hours so he would have an excuse to transport them to Santa Rita
once a crowd gathered outside of the building. However, the record establishes that
during this period the UCPD was identifying protesters who had prior arrests,
including Plaintiff Maidhof, and transporting them to Santa Rita pursuant to the
Operational Plan. There is no evidence to suggest how long this process took or that
the UCPD was not acting diligently. Even assuming that the UCPD was slow to
process Plaintiffs, there is no evidence that Celaya was responsible for the delay.
Plaintiffs also contend that the Operational Plan is itself evidence of retaliation
because it singled out persons who had been arrested for engaging in prior protests at
Wheeler Hall for off-campus processing, rather than all those with any prior arrests.
But Celaya simply reviewed and approved this provision, which was drafted by other
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members of the UCPD. Moreover, he testified that he understood this provision was
justified because the UCPD lacked the resources to determine whether prior arrestees
had violated any existing conditions of release at the time of their recent arrests and,
if so, whether additional processing or detention might be necessary. Because there
is no evidence that the Operational Plan reflected Celaya’s state of mind or that he
understood this provision to be motivated by retaliatory animus, the plan does not give
rise to a genuine issue of fact as to whether he acted with a retaliatory intent.
Plaintiffs lastly argue that Celaya failed to comply with the UCPD’s General
Order establishing procedures for arrests. Paragraph 4 of the order provides:
Misdemeanor citation shall be used in lieu of physical arrest and incarceration
unless the subject is ineligible as provided in Section 853.6(j) of the California
Penal Code. Every effort shall be made for field citation and release.
The district court concluded that this provision requires officers to use field citations
for eligible misdemeanor arrestees and prohibits them from citing arrestees at a
booking facility. We disagree. The General Order was promulgated “to implement
Penal Code 853.6” and tracks the statute in most respects. Like section 853.6, the
order mandates misdemeanor citation for eligible arrestees but gives officers
discretion to cite the arrestee in the field or at a booking facility.
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Plaintiffs urge that even if the General Order allows for booking at a facility,
Celaya was required to make “every effort” to conduct field citations and he did not.
The district court did not reach this question because it believed that Celaya was
required to conduct field citations, but we see no reason to remand this issue for
resolution. Our review is de novo, the parties have fully briefed the issue, and we
have already explained why Plaintiffs’ evidence does not create a genuine issue of
fact as to retaliatory intent. Even assuming that a violation of the General Order’s
“every effort” provision could support a claim for retaliation, we conclude, for the
same reasons that underlie our retaliatory intent analysis, that Plaintiffs have not
pointed to evidence from which a reasonable juror could find that, even if Celaya did
not make “every effort” to conduct field citations, his failure was motivated by any
retaliatory intention.
Finally, Plaintiff Maidhof’s claim fails for the independent reason that Celaya
complied with the Operational Plan as to her. Unlike the other named plaintiffs,
Maidhof had a prior arrest and was part of the group that was immediately transferred
to Santa Rita in accordance with the plan. The sole argument of retaliatory intent
with respect to Maidhof is that the plan singles out those with arrests from prior
protests. This argument, as we have explained, has no merit.
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Because Celaya has offered a non-retaliatory justification for his decision to
conduct booking and citation off-site and Plaintiffs’ evidence of retaliatory intent is
weak, we conclude that Plaintiffs have not presented sufficient evidence that would
permit a reasonable jury to conclude that a desire to chill protected speech was a “but-
for” cause of Celaya’s conduct. We therefore reverse the decision of the district court
on the issue of qualified immunity and remand with instructions to dismiss the claim
against Celaya.
REVERSED and REMANDED.
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Maidhof v. Celaya
No. 13-16800
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent. In my view, the existence of a material issue of fact
regarding the intent of Defendant Chief Celaya precludes entry of summary
judgment in favor of the defendant. Motive or intent is a quintessential question of
fact that is particularly unsuited for resolution on summary judgment. See
Mendocino Envt’l Ctr. v. Mendocino Cty., 192 F.3d 1283, 1302 (9th Cir. 1999).
Construed in the light most favorable to the Plaintiffs, as required in the
qualified immunity context, see Skoog v. County of Clackamas, 469 F.3d 1221,
1229 (9th Cir. 2006), the facts preclude entry of summary judgment in favor of
Celaya. As noted by the majority, on December 7, Celaya was willing to
accommodate the protestors. Yet four days later, Celaya initiated mass arrests
against the protestors. This abrupt change in procedure is circumstantial evidence
of retaliation. See Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1117 (9th
Cir. 2011); see also Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1214 (9th
Cir. 2008).
In an e-mail dated the same day as the mass arrests, Celaya expressed the
following sentiment: “The good news is that the arrested protestors are still at
FILED
FEB 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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Santa Rita getting booked so they won’t be able to participate in the rally. . . .”
The majority concludes that, “in context,” the e-mail expresses concern “about
crowd control” rather than retaliation. However, that interpretation fails to
construe the e-mail in the light most favorable to Plaintiffs, as we are required to
do. See Skoog, 469 F.3d at 1229.
Finally, the Police Department’s General Order establishing procedures for
arrest provides in pertinent part: “Every effort shall be made for field citation and
release.” (emphasis added). Construed in the light most favorable to Plaintiffs, a
material issue of fact remains regarding whether the mass busing of protestors was
consistent with “every effort” being made “for field citation and release.”
In sum, on this record and construing the facts in the light most favorable to
the plaintiffs, Celaya was not entitled to qualified immunity as a matter of law. I
would affirm the district court.
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