RICK McLELLAN v. State of Nevada Department of Public Safety;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICK McLELLAN,
Plaintiff-Appellee,
v.
STATE OF NEVADA DEPARTMENT
OF PUBLIC SAFETY; et al.,
Defendant-Appellants.
No. 18-15529
DC No. 3:12-cv-00391-MMD-
WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted May 17, 2019
San Francisco, California
Before: IKUTA and CHRISTEN, Circuit Judges, and Morris**, District Judge.
Defendant-Appellants, individual officers with the State of Nevada’s
Department of Public Safety (DPS), appeal the district court’s order denying their
FILED
MAY 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.

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motion for summary judgment. Because the parties are familiar with the facts, we
do not recite them here. We have jurisdiction under 28 U.S.C. § 1291, and we
review de novo the district court’s decision denying summary judgment on the
basis of qualified immunity. Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931
(9th Cir. 2017). We reverse.
1. Jurisdiction is proper. Pursuant to 28 U.S.C. § 1291, we have jurisdiction
to conduct interlocutory review of an order denying qualified immunity. Id. The
district court’s order denied summary judgment and thus “plainly denied the
[officers’] qualified immunity motion.” Giebel v. Sylvester, 244 F.3d 1182, 1186
n.6 (9th Cir. 2001). We therefore have jurisdiction to decide the appeal.
2. Defendants are entitled to qualified immunity. Our review of the district
court’s order denying qualified immunity is limited to questions of law. Roybal,
871 F.3d at 931. We may affirm only if “(1) the facts alleged, taken in the light
most favorable to the party asserting injury, show that the [officers’] conduct
violated a constitutional right, and (2) the right at issue was clearly established at
the time of the incident such that a reasonable officer would have understood [his]
conduct to be unlawful in that situation.” Isayeva v. Sacramento Sheriff’s Dep’t,
872 F.3d 938, 945 (9th Cir. 2017) (internal quotation marks omitted) (second
bracket in original). We may exercise our discretion when deciding which prong
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of qualified immunity to analyze first. Pearson v. Callahan, 555 U.S. 223, 236
(2009). Because an officer is entitled to qualified immunity if either prong is
negative, the district court erred by only addressing the first prong.
The district court decided that an issue of fact prevented it from determining
whether there had been a constitutional violation, but an officer is entitled to
qualified immunity under the second prong of the qualified immunity test if he
could have “reasonably but mistakenly believed” that his conduct did not violate a
clearly established right. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th
Cir. 2013) (quoting Hunt v. Cty. of Orange, 672 F.3d 606, 615–16 (9th Cir. 2012)).
Even assuming McLellan’s First Amendment rights were violated, defendants
could have reasonably believed that McLellan’s repeated and admittedly false
statements would jeopardize future prosecutions in which he testified, so that
McLellan could no longer perform his job. On these facts, defendants could have
reasonably believed that terminating McLellan’s employment for his repeated false
statements did not violate a clearly established constitutional right. We therefore
conclude that defendants are entitled to qualified immunity.
REVERSED.
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