Appeal from the United States District Court for the District of Nevada Edward C. Reed, Senior District Judge, Presiding D.C. No. 3:08-cv-00418-ECR-RAM
The opinion of the court was delivered by: Gertner, District Judge:
Argued and Submitted May 11, 2011-San Francisco, California
Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit Judges, and Nancy Gertner, District Judge.*fn1
Hershel Oscar Rosenbaum ("Rosenbaum") and his children appeal the district court's order granting the defendants' motion for summary judgment on the grounds of qualified immunity.
Rosenbaum was arrested as he stood outside a fair selling promotional tickets that he had received for free from a radio station. He was wearing a t-shirt with the logo of the station; his children, ages eight and four, were standing beside him. He was arrested for abuse, neglect or endangerment of a child, and obtaining money under false pretenses. Officers walked his children across the street to the car where their mother was waiting. On the way, they told the children that what their father did "was wrong," that "you know what your father did was wrong," and that he was going to jail for what he had done. Rosenbaum spent eight hours in jail and was released on bail. He had in fact not violated any statute. There is no scalping law in Nevada; no other charge applied to his conduct. The charges against him were ultimately dropped.
Rosenbaum and his children brought a § 1983 suit against Washoe County, County Sheriff Dennis Balaam, County Deputy Sheriff Lieutenant James Forbus ("Forbus "), and Under-sheriff Michael Haley, for damages resulting from the unlawful arrest. They claimed a violation of two constitutional rights: (1) the right to be free from unlawful arrest under the Fourth and Fourteenth Amendment, and (2) the substantive and procedural due process right to family integrity under the Fourteenth Amendment. They also brought state claims for libel, assault, battery, negligent and intentional infliction of emotional distress, false arrest, and false imprisonment.
The County defendants moved for summary judgment on the grounds of qualified immunity, and the district court granted the motion. The district court held that while the arresting officer, Forbus, did not have probable cause to arrest Rosenbaum, he was entitled to qualified immunity because a criminal statute, "collecting for benefit without authority," Nev. Rev. Stat. § 205.415, which was offered by the defendants to justify the arrest, was ambiguous.
Significantly, the statute on which the district court relied in finding qualified immunity was unknown to Forbus at the time of the arrest. It has no published authority or legislative history. While there is a factual dispute about when the County defendants found this statute, it is clear that it was found at some point after the arrest and even after Rosenbaum was released. The Rosenbaums allege that it was the district attorney who found it after this section 1983 case was brought, almost two years after the arrest. The County defendants claim that it was Officer Forbus who found the statute. A Westlaw search of Nevada law found not a single reference to this statute other than in this case.
The district court further held that while the officer's comments to the children were offensive, they did not rise to the level of a constitutional violation.
For the reasons that follow, we reverse the district court's ruling on qualified immunity for the unlawful arrest and affirm the district court's ruling on the right to integrity of the family.
Rosenbaum received free promotional tickets for the Nevada State Fair from the Reno radio station KOZZ. On August 26, 2006, Rosenbaum stood across the street from the entrance to the fair with his children and sold the tickets for the discounted price of $5 per ticket. He was wearing a t-shirt with the KOZZ logo at the time.
Deputy Sheriff Forbus responded to a complaint by fair personnel that an individual was attempting to sell free promotional tickets. He spoke with KOZZ, the radio station that distributed the free tickets and sponsored the event, and was told that no one had been authorized to sell tickets for a profit. He then spoke with three witnesses who had bought tickets from Rosenbaum. He called for back up and approached Rosenbaum. Rosenbaum first denied and then admitted to selling the tickets. Forbus placed him under arrest.
Rosenbaum's two children were escorted to their mother, who was in a parked vehicle a short distance away. Forbus- and perhaps other officers-told them that what their father had done "was wrong," that "you know what your father did was wrong," and that their father was going to jail for what he had done.
Rosenbaum was booked on felony charges for abuse, neglect, or endangerment of a child and for obtaining money by false pretenses, as well as on a misdemeanor charge for obtaining money under false pretenses. He was released on bail the following day. The Washoe County District Attorney's Office would later charge Rosenbaum only with one felony count of obtaining money by false pretenses and then drop the charge.
This lawsuit was filed on August 1, 2008. The Rosen-baums' complaint asserts nine causes of action: (1) False Arrest, Unlawful Detention, False Imprisonment and Malicious Prosecution Pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; (2) Violation of Substantive and Procedural Due Process Right to Familial Integrity, and of Liberty Interest to Rear Children Without Unreasonable Government Interference; (3) Libel (based on a August 26, 2006, press release requesting information about Rosenbaum and the sale of the tickets); (4) Libel (based on a August 31, 2006 press release); (5) Assault; (5) Battery; (6) Intentional Infliction of Emotional Distress; (7) ...