- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Law
- Date Filed: 08-22-2011
- Case #: 10-15637
- Judge(s)/Court Below: District Judge Gertner, sitting by designation, for the Court; Circuit Judges Gould and M. Smith, Jr.
- Full Text Opinion
Hershel Rosenbaum received free promotional tickets to the Nevada State Fair and sold them at a discounted price. Rosenbaum was with his two children as he sold the tickets while the children’s mother waited in the car. After receiving a complaint from fair workers, Washoe County Sheriffs came and arrested Rosenbaum for abuse, neglect, and endangerment of a child, and obtaining money under false pretense. Rosenbaum’s children were escorted to their mother and told that their father was wrong and had to go to jail for what he had done. Rosenbaum spent eight hours in jail and was released after it was found that he had not violated any statute. All charges against him were dropped. Rosenbaum brought a §1983 suit against the Sheriff’s office for unlawful arrest and a violation of his due process right to family integrity. The district court granted summary judgment to the Sheriff’s office on both claims, holding that while the sheriff did not have probable cause to arrest Rosenbaum, they did have qualified immunity because the defendants offered a criminal statute which could justify the arrest. This statute was not known to the defendants at the time of the arrest. Under Davenport, the crime for which there was probable cause need not be stated at the time of the arrest. However, the Court holds that the crime which does provide probable cause must be clearly established so that a reasonable officer would know that the conduct was unlawful. Here, nobody knew of the law until some time after Rosenbaum’s arrest and release and there is no record of the statute ever being enforced in the state. The district court also held, and the Circuit Court agrees, that the sheriffs words to the children may have been offensive but do not rise to the level of a due process violation. AFFIRMED IN PART (due process violation), REVERSED IN PART (unlawful arrest).