Alejandra Solis v. RONALD J. OULES, Chief of Police, in his individual capacity

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRA SOLIS,
Plaintiff - Appellee,
v.
RONALD J. OULES, Chief of Police, in
his individual capacity,
Defendant - Appellant,
and
CITY OF BREWSTER, a municipal
corporation; TIMOTHY RIEB, an Officer,
in his individual capacity,
Defendants.
No. 09-35497
D.C. No. 2:08-cv-00021-EFS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted April 8, 2010
Seattle, Washington
FILED
MAY 03 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

** The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit
Court of Appeals, sitting by designation.
2
Before: HAWKINS, LUCERO, ** and N.R. SMITH, Circuit Judges.
Police Chief Ronald Oules (“Oules”) appeals the denial of qualified immunity.
Oules, Officer Timothy Rieb (“Rieb”), and the City of Brewster also appeal denial of
their summary judgment efforts for a determination that Alejandra Solis (“Solis”)
cannot use this 42 U.S.C. § 1983 action to recover attorneys’ fees incurred in her
successful state court defense of criminal charges. We affirm in part, reverse in part,
and remand.
This case arose from the stop of Solis’s vehicle under Oules’s mistaken belief
that Washington law criminalized cutting through private property to avoid a stop
sign.
Adhering to Saucier v. Katz, we follow a two-step analysis for a qualified
immunity inquiry, asking first whether a constitutional right was violated on the facts
alleged, “[t]aken in the light most favorable to the party asserting the injury,” and
second, “whether the right was clearly established.” 533 U.S. 194, 201 (2001).
Though Pearson v. Callahan provides us flexibility in deciding which step of the
analysis to address first, 129 S. Ct. 808, 813 (2009), we need not deviate from the

-- 2 of 5 --

3
typical inquiry because whether a constitutional right was violated here is
straightforward.
Neither of the statutes upon which Oules relies contains any language relating
to “corner cutting” or cutting through private property to allegedly avoid a traffic
control device. See Wash. Rev. Code §§ 46.61.050; 46.61.140. Oules thus violated
Solis’s Fourth Amendment right to be free from unreasonable searches and seizures
when he stopped her vehicle and apparently removed her from it under a law that did
not criminalize her behavior. See Ramirez v. City of Buena Park, 560 F.3d 1012, 1020
(9th Cir. 2009).
Nevertheless, we find that Oules’s mistake would not have been necessarily
clear to a reasonable officer in this circumstance. See Saucier, 533 U.S. at 202. One
of the statutes Oules relied on requires drivers to “obey” a traffic control device.
Wash. Rev. Code § 46.61.050. The uncertainty on the face of the statute and Oules’s
inquiry to the Washington State Patrol provide a sufficient basis for Oules’s
reasonable belief that his conduct was lawful. See Kulas v. Valdez, 159 F.3d 453, 456
(9th Cir. 1998). Oules should have therefore enjoyed qualified immunity for the
wrongful stop.

-- 3 of 5 --

4
We note, however, that our conclusion on immunity for the legality of the stop
says nothing about whether Oules’s may or may not have used excessive force once
he stopped Solis.
Oules, Rieb, and the City of Brewster also appeal the district court’s denial of
summary judgment on their claim that they cannot be liable for Solis’s attorneys’ fees
for her successful defense of the state criminal charges arising out of these events.
Citing our decision in Smiddy v. Varney, they claim we have jurisdiction to hear the
appeal of this issue because it involves an “immunity.” See 803 F.2d 1469 (9th Cir.
1986), modified on denial of rehearing, 811 F.2d 504 (1987). But unlike Smiddy, in
which the plaintiff already had a civil trial concerning his § 1983 action for damages,
here there are only two partial denials of summary judgment. Therefore, we lack
jurisdiction unless the appeal of this issue fits within the collateral order doctrine. See
28 U.S.C. § 1291; Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
We do not have jurisdiction under the collateral order doctrine to review
whether the recovery of fees would be an appropriate component of Solis’s damage
claim. The denial of summary judgment on liability for her state court defense costs
is tentative and is merely a measure of damages that can be reviewed at a later stage:
after a liability determination. See Swint v. Chambers County Comm’n, 514 U.S. 35,
41-42 (1995).

-- 4 of 5 --

5
Finally, we reject Solis’s assertion that she is a “prevailing party” in a § 1983
action, thus meeting the requirements under 42 U.S.C. § 1988 to be eligible for
attorneys’ fees for this appeal.
AFFIRMED in part, REVERSED in part, and REMANDED. Each party
shall bear its own costs on appeal.

-- 5 of 5 --