John Patton Reihley, Plaintiff-appellant, v. Robin Slocum; Darryl Wright; Peter Ronstadt; Clarencedupnik; Tucson Police Department; Drugenforcement Agency; City of Tucson;pima County; and Pima Countysheriff Department, Defendants,andphil Gray; Tom Mcnally; John Dickinson, Defendants-appellees, 76 F.3d 388 (9th Cir. 1996)

MEMORANDUM^** 

John Patton Reihley, an Arizona state prisoner, appeals pro se the district court's grant of summary judgment for defendants in his 42 U.S.C. § 1983 action seeking damages for an improper arrest. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.

We review the district court's conclusion regarding defendants' entitlement to qualified immunity de novo. Fry v. Melaragno, 939 F.2d 832, 835 (9th Cir. 1991).

Reihley contends that the district court erred by concluding that defendants were entitled to qualified immunity. This contention lacks merit with respect to defendants Gray and McNally. This contention has merit with respect to defendant Dickinson.¹ 

"A law enforcement officer is entitled to qualified immunity in a § 1983 action if the district court determines that, in light of clearly established principles governing the conduct in question at the time of the challenged conduct, the officer could reasonably have believed that the conduct was lawful." Mendoza v. Block, 27 F.3d 1357, 1360 (9th Cir. 1994); see also Harlow v. Fitzgerald, 457 U.S. 800, 815-16 (1982). " 'The contours of the right must be sufficiently clear that [at the time the allegedly unlawful action is taken] a reasonable official would understand that what he is doing violates that right...." Mendoza, 27 F.3d at 1361 (citations omitted; brackets in original). " [W]hen 'the defendants' conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts' that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established." Id. at 1361 (citation omitted).

Here, defendant Dickinson, a deputy attorney for Pima County, advised defendants Gray and McNally that they could arrest Reihley based on telephone conversations Dickinson had had with defendant Slocum. Slocum had stated that she was the surety on Reihley's bail bond and that she feared Reihley was preparing to flee the jurisdiction prior to trial on a drug charge. Defendant Dickinson was acting in accordance with his understanding of Ariz.Rev.Stat.Ann. § 13-3885 (1995). Defendants Gray and McNally relied upon Dickinson's advice and executed the arrest.² 

When police officers rely upon a state attorney's advice in executing an arrest, they are immune from suit for conduct within the scope of the attorney's advice. See Ortiz v. Van Auken, 887 F.2d 1366, 1369 (9th Cir. 1989); Arnsberg v. United States, 757 F.2d 971, 981-82 (9th Cir. 1984); cert. denied, 475 U.S. 1010 (1986). Accordingly, the district court did not err by concluding that defendants Gray and McNally were entitled to qualified immunity. See Arnsberg, 757 F.2d at 981-82.

Defendant Dickinson, however, did not act reasonably in light of clearly-established law when instructing defendants Gray and McNally that they could arrest Reihley. The statute upon which Dickinson relied in authorizing Reihley's arrest states that "a surety on the bail bond of defendant ... may empower any adult person of suitable discretion [to arrest defendant] ... by written authority endorsed on a certified copy of the undertaking." Ariz.Rev.Stat.Ann. § 13-3885 (1995) (clauses reversed for clarity). Although the Arizona Court of Appeals stated that there were no cases interpreting this statute when they concluded that defendants had no authority to arrest, or subsequently search, Reihley, State v. Reihley, No. 2 CA-CR 90-0362, 1991 WL 29290, at * 2 (Ariz.Ct.App.) (March 5, 1991) (unpublished memorandum decision), review denied (October 8, 1991), the plain language of the statute provides sufficient guidance to a reasonable attorney that a telephone conversation with an unidentified person who claims to be a surety is insufficient to authorize an arrest under section 13-3885.

Accordingly, the district court erred by concluding that defendant Dickinson is entitled to qualified immunity. See Mendoza, 27 F.3d at 1361.

Each party shall bear its own costs.

AFFIRMED in part and REVERSED and REMANDED in part.