Donald Shooter v. State of Arizona

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD S HOOTER,
Plaintiff-Appellant,
v.
STATE OF ARIZONA; KIRK ADAMS ,
Husband; J ANAE ADAMS , Wife;
JAVAN MESNARD, Named as
Javan “J.D.” Mesnard, Husband;
HOLLY M ESNARD , Wife,
Defendants-Appellees.
No. 19-16248
D.C. No.
2:19-cv-01671-
DWL
OPINION
Appeal from the United States District Court
for the District of Arizona
Dominic W. Lanza, District Judge, Presiding
Argued and Submitted June 2, 2020
Portland, Oregon
Filed July 22, 2021
Before: Marsha S. Berzon, Daniel P. Collins, and
Lawrence J. VanDyke, Circuit Judges.
Opinion by Judge Collins

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2 SHOOTER V . STATE OF ARIZONA
SUMMARY*
Civil Rights
The panel affirmed the district court’s dismissal, for
failure to state a claim, of an action brought by Donald
Shooter pursuant to 42 U.S.C. § 1983 alleging that the
Speaker of the Arizona House of Representatives, Javan
Mesnard, and the Arizona Governor’s Chief of Staff, Kirk
Adams, wrongfully engineered Shooter’s expulsion as a
representative from the Arizona House.
Shooter was expelled from the Arizona House by a 56-3
vote after a legislative investigation into sexual harassment
allegations concluded that he had created a hostile work
environment. Shooter filed suit against Mesnard, Adams,
and the State of Arizona, alleging that his expulsion was the
product of a conspiracy to suppress his anti-corruption
efforts. Shooter’s complaint alleged federal causes of action
under § 1983 based on due process and equal protection
violations.
Shooter conceded on appeal that the district court
correctly dismissed his § 1983 claim against the State of
Arizona on the grounds that the State is not a person for the
purposes of § 1983. Accordingly, the only question before
the panel was whether the district court properly dismissed
Shooter’s § 1983 claim for monetary relief against Mesnard
and Adams.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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SHOOTER V . STATE OF ARIZONA 3
The panel first held that even assuming that Shooter had
not abandoned his violation of equal protection theory, he
failed to state a claim because the complaint failed to plead
sufficient facts to raise a plausible inference that Mesnard
and Adams acted with a discriminatory intent based on
Shooter’s sex.
Addressing the procedural due process claims based on
a stigma-plus theory, the panel held that even assuming that
Shooter had any cognizable liberty interest, the claim failed
because Mesnard and Adams were entitled to qualified
immunity. The panel stated that in arguing that his due
process rights to notice and a hearing were violated, Shooter
relied on cases that arose in factual contexts that differed
from the internal workings of a state legislature, thereby
underscoring his failure to show clearly established law that
was particularized to the facts of the case. Moreover, the
legislative context in which Shooter’s claims arose presented
distinct federalism concerns that were not addressed, much
less clearly resolved, by the broadly framed due process
principles he invoked. Given the lack of any relevant
caselaw that placed the merits of his claims beyond debate,
Shooter failed to carry his burden to show that the
proceedings that led to his expulsion from the Arizona
House violated clearly established law.

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4 SHOOTER V . STATE OF ARIZONA
COUNSEL
Philip A. Byler (argued), Andrew T. Miltenberg, and Stuart
Bernstein, Nesenoff & Miltenberg LLP, New York, New
York; Thomas C. Horne, Horne Slaton PLLC, Scottsdale,
Arizona; for Plaintiff-Appellant.
Betsy J. Lamm (argued), Ronald Jay Cohen, and Daniel P.
Quigley, Cohen Dowd Quigley P.C., Phoenix, Arizona, for
Defendants-Appellees Kirk and Janae Adams.
Stephen W. Tully (argued) and Bradley L. Dunn, Hinshaw
& Culbertson LLP, Phoenix, Arizona, for Defendants-
Appellees Javan “J.D.” and Holly Mesnard.
Jeremy Horn (argued), Assistant Attorney General; Michael
Tryon, Senior Litigation Counsel; Mark Brnovich, Attorney
General; Office of the Attorney General, Phoenix, Arizona;
Defendant-Appellee State of Arizona.
OPINION
COLLINS, Circuit Judge:
In early 2018, Appellant Donald Shooter was expelled
from the Arizona House of Representatives by a 56–3 vote
after a legislative investigation into sexual harassment
allegations concluded that he had created a hostile work
environment. About a year later, Shooter filed this suit in
Arizona state court, alleging that the Speaker of the Arizona
House and the Governor’s Chief of Staff had wrongly
engineered his expulsion in violation of his rights under
federal and state law. After the action was removed to
federal court, the district court dismissed Shooter’s sole

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SHOOTER V . STATE OF ARIZONA 5
federal claim and remanded the state-law claims back to
state court. We agree that Shooter’s federal cause of action
under 42 U.S.C. § 1983 was properly dismissed for failure
to state a claim upon which relief may be granted, see Fed.
R. Civ. P. 12(b)(6), and we therefore affirm the district
court’s judgment.
I
A
For purposes of reviewing the district court’s dismissal
for failure to state a claim, we “accept[] all factual
allegations in the complaint as true and constru[e] them in
the light most favorable to the nonmoving party.” Fields v.
Twitter, Inc., 881 F.3d 739, 743 (9th Cir. 2018) (citations
and internal quotation marks omitted). “We may also
consider ‘materials incorporated into the complaint by
reference’ and any ‘matters of which we may take judicial
notice.’” Wochos v. Tesla, Inc., 985 F.3d 1180, 1185 (9th
Cir. 2021) (citation omitted). Applying these rules, we take
the following facts as true.
Donald Shooter served in the Arizona Senate from
January 2011 until January 2017 and thereafter in the
Arizona House of Representatives until his expulsion in
February 2018. Shooter alleges that while he was Chairman
of the Senate Appropriations Committee, he discovered
“questionable practices” relating to the State’s use of “no-
bid” contracts in making technology purchases—i.e.,
contracts “where the State does not engage in a competitive
bidding process, but rather chooses a vendor” who is then
“able to dictate many of the contract terms including price
and service level agreements.” In response, Shooter
introduced legislation in the Arizona Senate to address such

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6 SHOOTER V . STATE OF ARIZONA
practices. Shooter’s proposed legislation passed both the
Arizona House and Senate, but the Governor vetoed it.
After beginning his term in the Arizona House during the
next legislative session in 2017, Shooter reintroduced his
proposed legislation and continued to work for its passage.
Shooter claims that, during this time, he learned that a
private investigator was “following his every move.” He
also alleges that, every time he raised objections about no-
bid contracts to the Governor’s Chief of Staff, Kirk Adams,
a few days later “a local television reporter” named Dennis
Welch “would show up at the Legislature with a camera man
and aggressively follow and film” Shooter and “then run a
story derisive” of him. Shooter began to suspect that the
reporter’s actions resulted from collaboration with Adams.
In early November 2017, while serving as Chairman of
the House Appropriations Committee, Shooter informed
Adams that he intended to use his subpoena power to launch
an investigation into the State’s use of no-bid contracts. Five
days later, Welch conducted and publicized an interview
with another member of the Arizona House, Representative
Michelle Ugenti-Rita, in which the latter accused Shooter of
sexual harassment. Shooter claims that Ugenti-Rita’s
comments in the interview “misconstrued” her “past
friendship” with him. Shooter alleges that, at the time of the
interview, Ugenti-Rita was engaged to a lobbyist who had
previously worked for Adams in the Governor’s office, and
he asserts that Ugenti-Rita collaborated with Welch in
conducting and promoting the interview.
After the interview, Speaker of the House Javan (“J.D.”)
Mesnard began pressuring Shooter to resign. Rather than
resign, Shooter called for a “complete investigation” into the
sexual harassment claims against him as well as into
“allegations that had surfaced concerning malfeasance and

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SHOOTER V . STATE OF ARIZONA 7
sexual misconduct by Representative Ugenti-Rita.” Shooter
expected that the two investigations would be assigned to the
Arizona House’s Ethics Committee, but Speaker Mesnard
instead appointed “a hand-selected committee of his staff” to
oversee the matter. On November 15, 2017, those staff
members hired the outside law firm of Sherman & Howard
to conduct the investigations of both Shooter and Ugenti-
Rita. Mesnard suspended Shooter from his position as
Chairman of the Appropriations Committee pending the
investigation, but he did not suspend Ugenti-Rita from her
committee chairmanship. Shooter alleges that although the
two representatives were each partly reimbursed for their
attorneys’ fees during the investigation, Ugenti-Rita’s
attorney was paid 25 percent more than Shooter’s.
Shooter also asserts that, in November 2017, Speaker
Mesnard unilaterally “created a substantially more
restrictive” sexual harassment policy that he then provided
to Sherman & Howard to apply retroactively and selectively
in assessing the misconduct allegations against Shooter.
After interviewing more than 40 people, Sherman &
Howard prepared a detailed 75-page report in late January
2018. Speaker Mesnard released the report to the public
shortly thereafter. The report concluded that Shooter
“created a hostile working environment” by engaging “in a
pattern of unwelcome and hostile conduct toward other
Members of the Legislature and those who have business at
the Capitol.” Specifically, the report found credible
evidence that Shooter had “made unwelcome sexualized
comments to and about Ms. Ugenti-Rita, including about her
breasts”; that he “grabbed and shook his crotch” in front of
a female government affairs officer from the Arizona
Supreme Court; that he had physically embraced a female
newspaper intern “in a prolonged, uncomfortable, and

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8 SHOOTER V . STATE OF ARIZONA
inappropriate manner”; that he made “sexualized
comments” about the appearance of a female lobbyist; and
that he made a sexual joke to a newspaper publisher and
lawyer. The report also summarized the allegations against
Ugenti-Rita and concluded that there was no “credible
evidence” that she had violated the harassment policy.
Shooter claims that he was “assured both orally and in
writing during the investigation and on the day the report
was made available to the public that he was entitled to five
days to provide a written response to the investigative
report.” However, four days later—assertedly before
Shooter was able to issue a written reply to the report—the
House voted 56–3 to expel him.
B
On January 29, 2019, Shooter filed suit in state court
against Mesnard, Adams, and the State of Arizona, alleging
that his expulsion was the product of a conspiracy among
Mesnard and Adams to suppress his anti-corruption efforts.
Shooter’s complaint asserted a cause of action under
42 U.S.C. § 1983 based on alleged due process and equal
protection violations, as well as three state-law causes of
action: (1) defamation, (2) false light invasion of privacy,
and (3) wrongful termination. The complaint sought only
damages and declaratory relief.1
1 As the district court noted, Shooter’s complaint also named the
spouses of Adams and Mesnard as defendants “for the sole purpose of
preserving claims against their respective marital communities.”
Whether Arizona law would render the spouses liable for satisfaction of
any judgment Shooter might obtain against Mesnard and Adams under
the § 1983 claim has nothing to do with whether Shooter can state a
direct claim under § 1983 against the spouses themselves in this context.

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SHOOTER V . STATE OF ARIZONA 9
In his complaint, Shooter argued that his expulsion
deprived him of “a protected liberty interest” and “property
right” without due process of law. According to Shooter, his
investigation was “the first time in the Arizona Legislature’s
history” that a “special investigation team” consisting only
of the Speaker’s staff was used, rather than the Arizona
House’s “Ethics (or Special) Committee[,] to evaluate
conduct complaints.” Shooter claims that the investigation
and subsequent expulsion proceedings deprived him of “the
opportunity to meaningfully defend himself in a hearing
before his peers,” and that he should have been afforded “the
protections of the traditional Ethics Committee” and given
“the complete investigative file including the investigators’
notes describing the testimony of material witnesses.”
Shooter alleges that Mesnard violated his due process rights
by failing to provide him with these procedural protections
and by unilaterally adopting a November 2017 policy that
improperly sought to impose a retroactive “zero-tolerance”
sexual harassment standard “solely” against Shooter.
On March 11, 2019, Adams and Mesnard removed the
action to federal court, with the State’s consent. Shortly
thereafter, Adams moved to dismiss the complaint for failure
to state a claim on which relief may be granted. See Fed. R.
Civ. P. 12(b)(6). With respect to Shooter’s § 1983 claim,
Adams argued, inter alia, that the claim raised a
nonjusticiable political question and was barred by absolute
and qualified immunity. Mesnard filed a separate motion to
dismiss in which he argued, inter alia, that Shooter’s § 1983
cause of action was barred by absolute immunity. Mesnard’s
Shooter cites no authority supporting the latter proposition, and we are
aware of none. In evaluating the § 1983 claim, we therefore disregard
Shooter’s purported naming of the spouses as defendants.

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10 SHOOTER V . STATE OF ARIZONA
motion also stated that he “join[ed] in the arguments” of
Adams’s motion. The State joined both motions to dismiss.
On June 7, 2019, the district court dismissed Shooter’s
§ 1983 claim with prejudice and remanded the remaining
state-law claims. The court dismissed Shooter’s § 1983
claim against the State of Arizona because, under established
precedent, the State is not a “person” within the meaning of
that section. The court dismissed Shooter’s due process §
1983 claim against Mesnard and Adams on the ground that
they were entitled to qualified immunity. According to the
district court, Shooter had “utterly fail[ed]” to carry his
burden of demonstrating that the rights allegedly violated by
Mesnard and Adams were “clearly established.” The court
dismissed Shooter’s equal protection § 1983 claim against
these same two defendants on the grounds that it had been
abandoned and lacked merit. The district court accordingly
granted the motions to dismiss without leave to amend.
Shooter timely appealed, and we have jurisdiction under
28 U.S.C. § 1291.
II
Shooter concedes on appeal that the district court
correctly dismissed his § 1983 claim against the State of
Arizona on the grounds that the State is not a “person” for
the purposes of § 1983. See Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 64 (1989). Accordingly, the only
question before us is whether the district court properly
dismissed Shooter’s § 1983 claim for monetary relief against
Mesnard and Adams.2 That claim was based on the
2 Shooter’s complaint did not seek injunctive relief, and he has not
contended on appeal that his request for declaratory relief provides any

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SHOOTER V . STATE OF ARIZONA 11
contention that, acting under color of state law, Mesnard and
Adams had “deprived Shooter of his rights to due process
and equal protection.” Reviewing de novo, see Keates v.
Koile, 883 F.3d 1228, 1234 (9th Cir. 2018), we separately
consider Shooter’s equal protection and due process
theories, and we conclude that the district court properly
dismissed Shooter’s § 1983 claim under either theory.
A
The district court addressed Shooter’s equal protection
theory only in a footnote, concluding that it was both
“abandoned” and meritless. The court’s abandonment
holding is doubtful, because Shooter’s opposition to
Adams’s motion to dismiss expressly, albeit briefly,
defended the viability of that theory. But even assuming that
the theory was not abandoned, we agree with the district
court that Shooter failed to state a claim under § 1983 based
on an equal protection theory.
“‘To state a claim under 42 U.S.C. § 1983 for a violation
of the Equal Protection Clause of the Fourteenth
Amendment[,] a plaintiff must show that the defendants
acted with an intent or purpose to discriminate against the
plaintiff based upon membership in a protected class.’”
Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013)
(quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th
Cir. 1998)). On appeal, the only protected class that Shooter
invokes is sex, and he argues that his complaint alleged
basis for avoiding the district court’s conclusions. Any such contention
is therefore forfeited. See Brown v. Rawson-Neal Psychiatric Hosp.,
840 F.3d 1146, 1148 (9th Cir. 2016).

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12 SHOOTER V . STATE OF ARIZONA
sufficient facts to state a claim for sex discrimination. We
disagree.
Although the complaint adequately pleads that Ugenti-
Rita was treated differently from Shooter in a variety of
respects, it fails to plead sufficient facts to raise a plausible
inference that Mesnard and Adams acted with a
“discriminatory intent” based on Shooter’s sex. Thornton v.
City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005); see
also Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009). On the
contrary, the complaint affirmatively alleges that the
differential treatment was due to Mesnard’s and Adams’s
asserted desire “to end Representative Shooter’s attempts to
uncover evidence of corruption related to high priced no-bid
contracts and other non-competitive procurement
processes.” Because the complaint’s allegations do not raise
a plausible inference of sex discrimination, Shooter’s equal
protection claim based on such a theory was properly
dismissed.
B
Shooter contends that he was deprived of a “protected
liberty interest” without due process of law in that he “lost
his seat” in the Arizona House “and was defamed at the same
time.” He thus relies on what we have called a “stigma-plus”
theory, under which procedural due process protections
extend to “reputational harm only when a plaintiff suffers
stigma from governmental action plus alteration or
extinguishment of a right or status previously recognized by
state law.” Endy v. County of Los Angeles, 975 F.3d 757,
764 (9th Cir. 2020) (citations and internal quotation marks

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SHOOTER V . STATE OF ARIZONA 13
omitted).3 Mesnard and Adams deny that Shooter has any
such cognizable liberty interest here, but we need not resolve
that dispute. Even assuming arguendo that Shooter has such
a liberty interest, we conclude that Shooter’s due process
claim fails because Mesnard and Adams are entitled to
qualified immunity.
“Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the
time of the challenged conduct.” Ashcroft v. al-Kidd,
563 U.S. 731, 735 (2011) (citation omitted). A government
official “violates clearly established law when, at the time of
the challenged conduct, the contours of a right are
sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Id. at
741 (simplified). Although there need not be a case directly
on point, “existing precedent must have placed the statutory
or constitutional question beyond debate.” Id. “The plaintiff
bears the burden of proof that the right allegedly violated
was clearly established at the time of the alleged
misconduct.” Romero v. Kitsap County, 931 F.2d 624, 627
(9th Cir. 1991). We have discretion to address the “‘clearly
established’ prong” of the qualified immunity test first; if we
conclude that the relevant law was not clearly established,
we need not address the other prong concerning the
underlying merits of the constitutional claim. See Pearson
v. Callahan, 555 U.S. 223, 236 (2009); James v. Rowlands,
606 F.3d 646, 651 (9th Cir. 2010).
3 Although Shooter’s complaint alternatively relied on the theory
that he had a “property right” in his seat, he abandoned this theory in his
opening brief on appeal.

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14 SHOOTER V . STATE OF ARIZONA
Here, Shooter asserts two distinct due process theories.
We conclude that both are barred by qualified immunity.
1
Shooter first asserts that his procedural due process
rights were violated during the proceedings leading up to his
expulsion from the Arizona House of Representatives.
Specifically, Shooter asserts that he had the right to access
to the evidence against him, a pre-expulsion hearing before
a committee of his peers at which he would have the
opportunity to cross-examine his accusers, and the
additional protections of Ethics Committee procedures. We
find the “clearly established” prong dispositive as to this
particular claim, and we therefore do not address whether,
under the facts as pleaded, Mesnard and Adams actually
violated Shooter’s constitutional rights.
a
In contending that he had a clearly established right to
certain additional procedural protections, Shooter relies
primarily on caselaw enunciating generalized due process
principles, such as the right to “notice” and an “‘opportunity
to be heard’” in connection with the deprivation of a liberty
or property interest, Goss v. Lopez, 419 U.S. 565, 579 (1975)
(citation omitted); the need for “some form of hearing”
before “an individual is finally deprived of a property
interest,” Mathews v. Eldridge, 424 U.S. 319, 333 (1976);
and the right “to an impartial and disinterested tribunal in
both civil and criminal cases,” Marshall v. Jerrico, Inc.,
446 U.S. 238, 242 (1980). See generally Mathews, 424 U.S.
at 333 (“The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’” (citation omitted)); Greene v.
McElroy, 360 U.S. 474, 493 (1959) (emphasizing “the

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SHOOTER V . STATE OF ARIZONA 15
traditional procedural safeguards of confrontation and cross-
examination”). But in light of two considerations, we find
this caselaw inadequate to establish that Shooter had a
“clearly established” right to the particular procedural
protections he asserts.
First, in addressing qualified immunity, the Supreme
Court has “repeatedly told courts—and the Ninth Circuit in
particular—not to define clearly established law at a high
level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (citations and internal quotation marks omitted); see
also City of Escondido v. Emmons, 139 S. Ct. 500, 503
(2019); City & County of San Francisco v. Sheehan,
575 U.S. 600, 613 (2015); al-Kidd, 563 U.S. at 742. “As
th[e] Court explained decades ago, the clearly established
law must be ‘particularized’ to the facts of the case,” because
“[o]therwise, plaintiffs would be able to convert the rule of
qualified immunity into a rule of virtually unqualified
liability simply by alleging violation of extremely abstract
rights.” White v. Pauly, 137 S. Ct. 548, 552 (2017)
(simplified). Shooter’s arguments contravene this teaching
by relying entirely on overarching principles that define his
due process rights at a very “high level of generality.”
Kisela, 138 S. Ct. at 1152. In arguing that his due process
rights to notice and a hearing were violated, Shooter relies
on cases that arose in factual contexts that differ from the
internal workings of a state legislature, thereby underscoring
his failure to show “clearly established law” that is
“‘particularized’ to the facts of the case.” White, 137 S. Ct.
at 552.
Second, and relatedly, the legislative context in which
Shooter’s claims arise presents distinct federalism concerns
that are not addressed, much less clearly resolved, by the
broadly framed due process principles he invokes. Shooter

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16 SHOOTER V . STATE OF ARIZONA
asserts, in effect, that the Fourteenth Amendment’s Due
Process Clause constrains the ability of a state legislature to
exercise its authority, under the state constitution, to
determine the procedures for the expulsion of one of its
members. See Ariz. Const. art. IV, Pt. 2 § 11 (“Each house
may punish its members for disorderly behavior, and may,
with the concurrence of two-thirds of its members, expel any
member.”); id. § 8 (“Each house, when assembled, shall
choose its own officers, judge of the election and
qualification of its own members, and determine its own
rules of procedure.”). Such a claim presents unique
federalism concerns given that “the authority of the people
of the States to determine the qualifications of their most
important government officials” “lies at the heart of
representative government.” Gregory v. Ashcroft, 501 U.S.
452, 463 (1991) (simplified). The Supreme Court has
recognized that this authority is “not without limit,” as
“[o]ther constitutional provisions, most notably the
Fourteenth Amendment, proscribe certain qualifications.”
Id. But the Court has also expressly “recognized that the
States’ power to define the qualifications of their
officeholders has force even as against the proscriptions of
the Fourteenth Amendment.” Id. at 468. Because
application of due process principles in the context of the
internal operations of a state legislature raises distinctive
concerns, the more general due process caselaw that Shooter
invokes cannot be understood as having “clearly
established” that his rights were violated in connection with
his expulsion. al-Kidd, 563 U.S. at 741.
b
We turn, then, to caselaw specifically addressing the
application of due process principles in the context of a
legislative expulsion. The parties have not pointed us to any

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SHOOTER V . STATE OF ARIZONA 17
such case in this court or in the Supreme Court, and we have
not located any such precedent.4 Given this absence of
“binding precedent,” we “may look to decisions from the
other circuits” to determine whether they reflect a
“consensus of courts” that can be said to clearly establish the
relevant law. Martinez v. City of Clovis, 943 F.3d 1260,
1276 (9th Cir. 2019) (citations and internal quotation marks
omitted); see also al-Kidd, 563 U.S. at 742 (“absent
controlling authority,” “what is necessary” to show clearly
established law is “a robust ‘consensus of cases of
persuasive authority’” (citation omitted)). The relevant out-
of-circuit precedent, however, falls far short of clearly
establishing that the manner of Shooter’s expulsion violated
due process.
The parties have identified only one circuit decision that
has squarely addressed the merits of a federal procedural due
process challenge to a legislative expulsion, and that
decision rejected the claim. In Monserrate v. New York State
Senate, 599 F.3d 148 (2d Cir. 2010), the New York Senate
convened a select committee to investigate one of its
members, Senator Monserrate, after he was convicted of
misdemeanor reckless assault. Id. at 152. The committee
met on six occasions over a two-month period, but
Monserrate “declined the invitation to present arguments
and evidence in person, through counsel, or in writing.” Id.
at 153. The committee ultimately issued a report
recommending either censure or expulsion of Monserrate.
4 Shooter cites Powell v. McCormack, 395 U.S. 486 (1969), but that
case addressed a refusal to seat a member of the House of
Representatives, and the decision says nothing about the adequacy of the
procedures applicable to an expulsion. Indeed, the Powell Court
expressly rejected the argument that the refusal to seat Powell could be
characterized as an expulsion or that it “should be tested by whatever
standards may govern an expulsion.” Id. at 512.

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18 SHOOTER V . STATE OF ARIZONA
Id. Approximately four weeks later, the Senate voted
overwhelmingly to expel him. Id. Monserrate and six voters
from his district sought to enjoin the special election to
replace him, arguing, inter alia, that his due process rights
had been violated during the proceedings leading to his
expulsion, but the district court denied a preliminary
injunction. Id. at 152, 158. The Second Circuit affirmed,
holding that the district court had properly concluded that
Monserrate was unlikely to succeed on the merits. Id. at 160.
Specifically, the court held that, because Monserrate had
been notified of “the parameters of the Select Committee’s
investigation” and was aware that “expulsion was a possible
recommendation,” he had received sufficient notice for due
process purposes. 599 F.3d at 158–59. Moreover, because
Monserrate had been afforded an “‘opportunity to present
reasons, either in person or in writing, why [the] proposed
action should not be taken,’” he “received a sufficient
opportunity to be heard.” Id. (citation omitted). Monserrate
complained that he had not been given access to all of the
materials on which the committee relied and that “he was not
able to cross-examine the two witnesses that Select
Committee staff attorneys interviewed,” but the court
rejected the notion that these circumstances amounted to a
due process violation: “Even if the process Monserrate
received did not include these features, he nevertheless
received a sufficient opportunity to clear his name—and that
is all the Constitution requires.” Id. at 159–60.
To the extent that it provides any guidance here,
Monserrate suggests that Shooter’s due process claim may
lack merit. For each specific allegation addressed in the
report prepared by outside counsel in Shooter’s case, the
report summarizes the evidence on which its conclusions are
based, as well as counsel’s description of Shooter’s response

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SHOOTER V . STATE OF ARIZONA 19
to each of those allegations.5 Shooter’s complaint disputes
many of the conclusions of the report, objects to the lack of
access to all of the investigative files on which the report was
based, and protests that the House voted to expel him four
days after the release of the report, assertedly before he had
an opportunity to submit a written response. But the
complaint notably does not deny that Shooter was given an
opportunity to present his side of the matter to the outside
counsel conducting the investigation. Moreover, the
complaint specifically acknowledges that the report
absolved Shooter of more than half of the claims of sexual
harassment made against him. Shooter’s opportunity to
address with investigators each of the specific allegations
against him arguably provided him with a “sufficient
opportunity to clear his name,” and Shooter’s own
allegations confirm that he knew the “parameters” of the
investigation concerning him. Monserrate, 599 F.3d at 159–
60. We nonetheless need not and do not decide whether
Shooter’s due process claim has merit. For purposes of
qualified immunity, it suffices to note that Monserrate
certainly does not establish—much less place “beyond
debate”—the view that Shooter should prevail on his due
process claim. al-Kidd, 563 U.S. at 741.
We have identified only one other published federal
court decision in which a three-judge panel addressed the
merits of a direct challenge, on federal due process grounds,
to a legislative expulsion. In McCarley v. Sanders,
5 The report was extensively referenced in Shooter’s complaint and
was submitted to the district court, without objection from Shooter, in
support of Adams’s motion to dismiss. We therefore may properly
consider the statements made in the report, although we do not assume
their truth. See United States v. Corinthian Colleges, 655 F.3d 984, 998–
99 (9th Cir. 2011).

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20 SHOOTER V . STATE OF ARIZONA
309 F. Supp. 8 (M.D. Ala. 1970), a three-judge district court
held that the Alabama Senate violated the procedural due
process rights of Senator McCarley when it expelled him,
and the court ordered his reinstatement. Id. at 11–12. Even
assuming that this decision is entitled to any significant
weight in the clearly-established-law inquiry, but cf. San
Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1315
n.24 (9th Cir. 1981) (“An unappealed decision of a statutory
three-judge court has the same precedential weight for other
courts of the district or circuit as any district court
decision.”), it is of no assistance to Shooter. On the contrary,
because the extreme facts of McCarley bear no resemblance
to this case, that decision underscores the absence of any
clearly established law governing Shooter’s claim.
In McCarley, an Alabama newspaper reported that
McCarley was implicated in an alleged bribery scandal, and
later that same day the Alabama Senate established an
investigating committee. 309 F. Supp. at 9–10. The very
next day, the committee began holding hearings, which were
closed to the public. Id. at 10. McCarley was allowed to
testify, but neither he nor his attorney were present at the
ensuing hearings at which 18 other witnesses testified. Id.
No transcript of these hearings was prepared before the
Senate expulsion vote, which occurred only eight days after
the newspaper article was published. Id. at 9, 11. The full
Senate itself took no evidence and acted based only on a brief
five-page report released by the committee shortly after
midnight on the day McCarley was expelled. Id. at 10–12.
At 9:30 PM that same day, the Senate’s Rules Committee
reported a resolution recommending McCarley’s expulsion,
id. at 10–11, and “[a]pproximately twenty minutes after the
introduction of the resolution it was passed by a vote of 32
in favor of expulsion and one against,” id. at 11. Noting the
lack of any evidentiary record before the Senate and the

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SHOOTER V . STATE OF ARIZONA 21
denial of any meaningful “opportunity” for McCarley “to
defend himself,” the court concluded that the expulsion
proceedings failed to “accord[] even the barest rudiments of
due process.” Id. at 11–12.
The facts of Shooter’s case are materially different.
Here, an outside law firm was retained to conduct an
investigation of Shooter and, more than 10 weeks later, it
submitted a detailed 75-page report that, for each specific
allegation, summarized the relevant evidence and a
purported response from Shooter. See supra at 7–8.
Regardless of whether Shooter is correct that the procedures
afforded to him were deficient, they substantially exceeded
the hasty, secretive, and summary expulsion proceedings in
McCarley. Because the latter decision is so “readily
distinguishable,” it does not place the merits of Shooter’s
claim “beyond debate.” Stanton v. Sims, 571 U.S. 3, 10–11
(2013) (citation omitted).
Shooter cites only one other case that squarely addressed
the merits of a federal due process challenge to a state
legislative expulsion, namely, the Pennsylvania Supreme
Court’s decision in Sweeney v. Tucker, 375 A.2d 698 (Pa.
1977). But like Monserrate, Sweeney rejected the
legislator’s claim. In Sweeney, a member of the
Pennsylvania House of Representatives was summarily
expelled after his conviction on federal mail fraud charges.
Id. at 700–01. Nine days before his expulsion,
Representative Sweeney was notified “by telegram” that the
House would meet a week later “to discuss his future status
as a House member” and he was invited “to attend alone or
with counsel.” Id. (simplified). After the House Ethics
Committee concluded it had no jurisdiction over Sweeney’s
case, id. at 701 & n.9, the House proceeded to a vote on a
resolution to expel Sweeney, which was adopted by a 176–1

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22 SHOOTER V . STATE OF ARIZONA
vote, id. at 701–02. Citing “the circumscribed nature of a
legislator’s private interest in his elected office and the
overriding need for the Legislature to protect its integrity
through the exercise of the expulsion power,” the court
observed that “it may be that the requirement of a two-thirds
vote to expel by itself satisfies procedural due process.” Id.
at 713 (emphasis added). The court nonetheless did not need
to resolve that issue, because it concluded that, in light of the
“competing interests at stake in legislative expulsion,”
Sweeney received “adequate notice of the impending House
action.” Id. Sweeney provides little guidance one way or the
other in Shooter’s case, because Sweeney involved an
expulsion that was based on a criminal conviction after a jury
trial in which Sweeney presumptively received the full
panoply of due process protections. Id. at 700. To the extent
that Sweeney has any arguable relevance here, its holding
that the “competing interests at stake in legislative
expulsion” must be considered in assessing the adequacy of
the procedures, id. at 713, cuts against Shooter’s claim.
Given the lack of any relevant caselaw that places the
merits of his claims beyond debate, Shooter has failed to
carry his burden to show that the proceedings that led to his
expulsion from the Arizona House violated clearly
established law.
2
Shooter also asserts a right under the Due Process Clause
“not to be subjected to a retroactively applied” “zero-
tolerance” sexual harassment policy. In addressing whether
this particular claim was properly dismissed, we rely only on
the first prong of the qualified immunity inquiry, viz.,
whether the defendants “violated a statutory or constitutional
right.” al-Kidd, 563 U.S. at 735. Even assuming arguendo
that the Due Process Clause may place some limit on a

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SHOOTER V . STATE OF ARIZONA 23
Legislature’s ability to retroactively change the substantive
standards that govern its members’ conduct, the allegations
of Shooter’s complaint fail to raise a plausible inference that
there was any materially retroactive tightening of the
applicable standards here. See Iqbal, 556 U.S. at 678–80.
To state a claim that he was subjected to a retroactive
change in the Legislature’s sexual harassment policy,
Shooter would have to plead sufficient facts to raise a
plausible inference that, at the time he acted, the Arizona
Legislature’s policy allowed the sort of conduct of which he
was accused. Shooter has utterly failed to do so. As noted
earlier, the allegations against Shooter included the
following: that he “grabbed and shook his crotch” in front of
a female government affairs officer from the Arizona
Supreme Court; that he made “sexualized comments” about
a female lobbyist’s appearance; and that he hugged a female
newspaper intern “in a prolonged, uncomfortable, and
inappropriate manner.” See supra at 7–8. The notion that
the Arizona Legislature previously permitted this type of
conduct is simply implausible, and nothing in Shooter’s
complaint supports such an inference. Because Shooter has
not pleaded enough facts to raise a threshold question of
retroactivity, we need not address whether an actual
retroactive tightening of standards would be permissible in
this context.6
6 Because we affirm the district court’s dismissal of Shooter’s due
process claim on qualified immunity grounds, we need not address
Mesnard’s and Adams’s other arguments, including their contentions
that they are entitled to legislative immunity.

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24 SHOOTER V . STATE OF ARIZONA
III
In light of the foregoing, Shooter has failed to
demonstrate a clearly established right to any due process
protections beyond those already afforded to him by the
Arizona House of Representatives. The district court
therefore correctly held that Mesnard and Adams were
entitled to qualified immunity. And because Shooter has
failed to show that he could plead any additional facts that
would warrant a different conclusion, the district court did
not abuse its discretion in failing sua sponte to grant him
leave to amend. See Chinatown Neighborhood Ass’n v.
Harris, 794 F.3d 1136, 1144 (9th Cir. 2015). We therefore
affirm the judgment of the district court dismissing Shooter’s
§ 1983 claim with prejudice.
AFFIRMED.

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