MILLER V. CITY OF SCOTTSDALE, No. 22-16004 (9th Cir. 2023)
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In this case, Randon L. Miller, the owner of Sushi Brokers, LLC, a sushi restaurant in Scottsdale, Arizona, was cited and arrested by Scottsdale Police Officer Christian Bailey for violating a COVID-19 emergency executive order prohibiting on-site dining issued by the Arizona Governor. The charges were later dismissed. Miller subsequently brought a lawsuit against Officer Bailey and the City of Scottsdale, alleging constitutional violations including retaliatory arrest in violation of the First Amendment, and false arrest in violation of the Fourth Amendment.
The United States Court of Appeals for the Ninth Circuit upheld the district court’s summary judgment in favor of Officer Bailey and the City of Scottsdale. The court held that Officer Bailey had probable cause to arrest Miller under Arizona Revised Statutes § 26-317 for violating the emergency order, given that officers had observed on-site dining at the restaurant and there were prior calls reporting violations. The court also rejected Miller’s argument that the warnings he received prior to the enactment of an executive order requiring notice and an opportunity to comply before any enforcement action did not qualify. The court found that Miller had sufficient notice and opportunity to comply given the challenges presented by the COVID-19 pandemic.
Court Description: COVID-19 Executive Order Enforcement. The panel affirmed the district court’s summary judgment in favor of Scottsdale Police Officer Christian Bailey and the City of Scottsdale in a 42 U.S.C. § 1983 action alleging constitutional violations arising from plaintiff’s arrest and citation for violating a COVID-19 emergency executive order, which prohibited restaurants from offering on-site dining.
Arizona Governor Ducey issued four COVID-19 executive orders between March 19, 2020, and June 29, 2020, that among other things prohibited on-site dining (EO- 2020-09), included restaurants on a list of essential functions that could remain open during the pandemic (EO 2020-12), and required that notice and an opportunity to comply be given prior to any enforcement action (EO 2020- 18). Plaintiff is the owner of Sushi Brokers, LLC, which operates a sushi restaurant in Scottsdale, Arizona. On April 11, 2020, officers cited and arrested plaintiff for violating Arizona Revised Statute (“A.R.S.”) § 26-317, which makes it a misdemeanor to violate emergency executive orders. The charges were later dismissed. Plaintiff brought suit alleging, among other things, retaliatory arrest, in violation of the First Amendment, and false arrest, in violation of the Fourth Amendment. The panel first noted that both retaliatory and false arrest claims require showing the absence of probable cause. Here, given that officers had observed on-site dining at the restaurant and there were prior calls reporting violations, Officer Bailey had probable cause to arrest plaintiff under A.R.S. § 26-317 for violating an emergency order.
The panel next rejected plaintiff’s argument that that the warnings he received on March 27 and 28, 2020, did not qualify under EO 2020-18’s notice requirement because they occurred prior to EO 2020-18’s enactment. Holding that there was no constitutional violation, the panel noted that plaintiff was arrested for the exact same behavior for which he had received previous warnings. He had sufficient notice and opportunity to comply given the challenges presented by the COVID-19 pandemic.
Concurring, Judge Hurwitz agreed that a reasonable officer with the knowledge that Officer Bailey possessed would believe that plaintiff had violated EO 2020-09 and therefore there was probable cause for the arrest. It did not matter that plaintiff owned the restaurant through a limited liability corporation if he was serving in-person diners. Moreover, even accepting plaintiff’s argument that EO 2020-18 superseded all previous orders and required prior notice before any A.R.S. § 26-317 arrest or citation, the result would not change. EO 2020-18 did not invalidate the two prior warnings plaintiff received prior to his arrest that he was violating the ban on in-person dining.
Dissenting, Judge Bumatay would remand to the district court to determine in the first instance what law governed at the time of plaintiff’s arrest. If EO 2020-09 and EO 2020- 12 governed, then plaintiff did not violate the law because those orders applied only to “restaurants” or “businesses”— not persons. Nevertheless, Officer Bailey’s legal mistake about whether those orders applied to individuals was reasonable. If EO 2020-18 was the governing law, then it didn’t apply to plaintiff because he wasn’t afforded the required notice. The March 27 and 28 warnings were insufficient because they were made before EO 2020-18 went into effect. If Officer Bailey was required to rely on 2020-18, his mistake in believing plaintiff could be arrested was not reasonable.
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