Metropolitan News-Enterprise


Tuesday, August 23, 2011


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Ninth Circuit Revives Civil Rights Suit by Nevada Man Arrested for Scalping Tickets to State Fair


By SHERRI M. OKAMOTO, Staff Writer


A father who was arrested in front of his two young children for selling state fair tickets he had received for free from a radio station—which did not violate any state law—is getting a second chance to prove his constitutional claims against the officer who took him into custody based on the post hoc justification of an obscure statute.

The Ninth U.S. Circuit Court of Appeals ruled yesterday that qualified immunity does not arise where “some enterprising official after the fact searched the bowels of a library to find a little known or entirely unknown old statute that may apply to the facts” in order to defeat an action for unlawful arrest.

This issue arose after Washoe County sheriff’s deputies arrested Hershel Rosenbaum in August 2006.

Rosenbaum had received free promotional tickets for the Nevada State Fair from the Reno radio station KOZZ and came to the attention of authorities after fair personnel complained.

Sheriff’s deputies said they ascertained from the radio station that no one had been authorized to sell such tickets for a profit and encountered Rosenbaum across the street from the entrance to the fair with his children—then ages eight and four—selling tickets for the discounted price of $5 per ticket.

Rosenbaum was arrested and 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.

After his arrest, Rosenbaum’s two children were escorted by officers to their mother, who was in a parked vehicle a short distance away, and allegedly told that what their father had done “was wrong,” and that their father was going to jail.

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.

About two years later, Rosenbaum sued the county and various individuals in the sheriff’s department for violation of his right to be free from unlawful arrest under the Fourth and Fourteenth Amendments and his substantive and procedural due process right to family integrity under the Fourteenth Amendment. He also asserted claims for libel, assault, battery, negligent and intentional infliction of emotional distress, false arrest, and false imprisonment.

The defendants moved for summary judgment, and U.S. District Judge Edward C. Reed of the District of Nevada granted the motion, finding the defendants were entitled to qualified immunity because a criminal statute prohibiting the “collecting for benefit without authority,” offered by the defendants to justify the arrest, was ambiguous.

U.S. District Judge Nancy Gertner of the District of Massachusetts, who sat by designation on the Ninth Circuit panel, noted that it was undisputed that this statute was “found at some point after the arrest and even after Rosenbaum was released.”

She added that the law also “has no published authority or legislative history,” and that her “Westlaw search of Nevada law found not a single reference to this statute other than in this case.”

Gertner explained that probable cause for an arrest can be determined in a post hoc analysis, pursuant to the Supreme Court’s 2004 ruling in Devenpeck v. Alford, 543 U.S. 146, but reasoned an arrest without a warrant could not be justified after the fact by a statute “that is so remote and obscure as to not be within any reasonable officer’s arsenal of criminal offenses.”

The jurist posited that “no reasonable officer, no matter how experienced, would have known of [Nev. Rev. Stat.] § 205.415,” absent any evidence that anyone had ever been charged with this crime.

“It cannot be that probable cause for a warrantless arrest exists so long as the facts may arguably give rise to probable cause under any criminal statute on the books—even if the crime is buried deep in a dust-covered tomb and never charged or prosecuted,” Gertner said.

 “If it were so,” she suggested, “officers could arrest without a warrant under virtually any set of facts and later search the legal archives for a statute that might arguably justify it,” which “would be inconsistent with the Fourth Amendment’s fundamental requirement that searches be cabined by the requirement of reasonableness.”

Gertner went on to conclude the facts known to the arresting officers at the time of Rosenbaum’s arrest did not give rise to probable cause for any offense, even the offense of “collecting for benefit without authority.”

As for the government’s first argument, that there was probable cause for “obtaining money by false pretenses” in violation of Nev. Rev. Stat. § 205.380— now codified at Nev. Stat. § 205.380—Gertner said she was not persuaded since there was no evidence to suggest that Rosenbaum intended to defraud his customers or that he was misrepresenting himself.

“He was openly selling promotional tickets, that he had received for free, for a price of $5,” Gertner said, and his customers “received exactly what they paid for.”

The government’s alternate basis for probable cause, “collecting for benefit without authority” in violation of Nev. Stat. § 205.415—now codified at Nev. Stat. § 205.415—also was insufficient, Gertner reasoned, since “the purpose of the offense is to protect charities from fraud,” and “a common-sense reading suggests that the provision makes it a crime to sell tickets to a charity event,” which the fair was not.

“[C]onsidering the facts in the light most favorable to Rosenbaum, all reasonably competent officers would have agreed that he was not committing a crime,” Gertner said.

Joined by Judges Ronald M. Gould and Milan D. Smith Jr., Gertner additionally concluded Rosenbaum’s due process rights had not been violated.

She conceded that the officers’ “words to the children were inappropriate and even offensive” and “likely exacerbated an already traumatic experience for this four year old and eight year old,” but that such conduct does not “shock the conscience.”

Gertner cautioned she did not intend to “imply that verbal abuse—and even verbal abuse to children in the midst of an arrest—would never rise to the level of a constitutional violation,” but only that such conduct did not occur in this case.

The case was Rosenbaum v. Washoe County, 10-15637.


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