Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

This is an appeal from a ruling of the district court granting summary judgment to appellees Jette and Nelson, two Oregon police officers. Appellants brought suit against the officers under 42 U.S.C. § 1983 alleging that the officers, without probable cause, cited them for illegal gill net fishing in violation of rights guaranteed under the Fourth, Sixth, and Fourteenth Amendments of the United States Constitution. The district court dismissed the case, ruling that the officers' conduct was objectively reasonable in light of clearly established law and, thus, that they were entitled to qualified immunity. We agree.

The district court may establish entitlement to qualified immunity as a matter of law on a motion for summary judgment. See Thorsted v. Kelly, 858 F.2d 571, 575 (9th Cir. 1988). We review the district court's order of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).

Jette and Nelson are entitled to qualified immunity from suit arising out of the performance of their official duties unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be "clearly established" for purposes of this test, " [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Our inquiry is whether a reasonable police officer, in light of the relevant law and the information Jette and Nelson possessed, could have believed that there was probable cause to arrest the appellants. The subjective belief of the officers is irrelevant. Id. at 641. Thus, in order to affirm the decision of the district court we do not have to find that there was probable cause for the officers' action, only that a reasonable officer could have found probable cause.

In reviewing this motion for summary judgment, we must view the facts in the light most favorable to appellants. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). Thus, we assume that the marks found on the fish in the appellants' possession could have been caused by a legal hoop set net and that the officers should have been aware of this fact. Even so, appellants concede that such marks regularly appear on fish caught with an illegal gill net. Moreover, a fish caught by appellant Jackson, Jr., in the officers' presence by a hoop set net, did not have similar markings. Though these facts do not definitively indicate appellants' guilt, they suggest a reasonable possibility of criminal activity. In addition, though the law of probable cause in general is clear, there is little case law providing guidance for determining what constitutes probable cause under the circumstances of this case. Consequently, we conclude that it is not "clearly established" that the officers did not have probable cause to believe the fish were caught with an illegal gill net. They are thus entitled to qualified immunity from suit in this case. See Harlow, 457 U.S. at 818.

Appellant Corbett Thompson also argues that there is no basis for charging him with possession of illegally caught fish unless the State can show that he had custody and control over the fish and knowledge that they were illegally caught or that he knew illegally caught fish were in the car and had the right to exercise control over them. This argument addresses the wrong issue. In this case, we are considering whether the officers had probable cause to arrest Thompson and whether they acted reasonably in doing so, not whether there was sufficient evidence available to convict him. See Henry v. U.S., 361 U.S. 98, 102 (1959). The officers stopped Thompson, along with appellants Carrie Teo and Sharon Kuneki, in a vehicle with fish they reasonably suspected were caught illegally. There was no basis for distinguishing Thompson's involvement in catching the fish from that of the others in the vehicle. This is adequate evidence of Thompson's participation in a crime to furnish a reasonable officer with probable cause to arrest him. The officers are entitled to qualified immunity with respect to their arrest of Thompson.

AFFIRMED.