In Miller v. City of Scottsdale, published December 8, 2023, a split panel of the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant officer and defendant city. On March 19, 2020, in light of the COVID-19 emergency, Arizona issued an executive order requiring restaurants to close access to on-site dining, but allowing pick-up, delivery, and drive-through. On March 23, a second executive order provided that restaurants that serve food for consumption off-premises were “essential functions” to remain open during the pandemic. On March 30, 2020, the state issued another executive order setting forth a physical distancing requirement, and included a requirement that a person be notified and given an opportunity to comply before any enforcement action to enforce that order. On June 29, 2020, another executive order specified that enforcement actions could be taken against businesses. City police visited the plaintiff’s restaurant on two occasions on March 27 and 28, 2020 in response to complaints that the restaurant was allowing on-site dining. On April 10, 2020, responding to a tip reporting that people were dining on-site at the restaurant, an officer went to the restaurant and saw about ten people inside, four of whom left without to-go bags. The officer also saw people eating and drinking inside. The next day, the defendant officer and other officers visited the restaurant to serve the plaintiff with a citation for violating emergency executive orders. The plaintiff shouted obscenities at the officers. The defendant officer then arrested the plaintiff for violation of a COVID-19 executive order and disorderly conduct. The charges were later dismissed. The plaintiff sued the officer and city, alleging retaliatory arrest in violation of the 1st Amendment; false arrest in violation of the 4th Amendment; and Monell liability. The district court granted summary judgment on the ground that the officer had probable cause for the arrest.
The panel majority agreed. Both retaliatory and false arrest claims require showing the absence of probable cause. Even taking as true the plaintiff’s claims that some of the people in the restaurant on April 10 were employees, no reasonable jury could conclude the officer lacked probable cause to arrest the plaintiff under the state statute making violation of an executive order a crime. The plaintiff contended he was not given notice and an opportunity to comply as required by the March 30 executive order, and that the officer visits and warnings did not qualify because they occurred before March 30. The court addressed the claim as a purported failure to provide notice under the 14th Amendment due process clause. The notice requirement created an interest in freedom from citation or arrest without warning. The plaintiff contended that to comply with due process, the officers should have issued notice of violation of the new executive order despite the warnings on the prior orders. The majority concluded additional warning was not necessary before the plaintiff was arrested for the exact same behavior for which he received previous warnings, since all three instances involved enforcement of the generic enforcement provision for executive orders enacted during an emergency. Supporting that conclusion is the government’s interest in deference to local officials during emergencies such as the COVID-19 pandemic.
A dissenting judge opined that the officers did not have probable cause given the multiple executive orders issued in a short time and confusion over which ones applied. The judge would vacate the summary judgment and remand for a determination of whether the officer was entitled to qualified immunity.
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