Anthony Reed v. Doug Lieurance, et al

Filing

FILED OPINION (ALEX KOZINSKI, WILLIAM A. FLETCHER and JOHN R. TUNHEIM) Costs shall be taxed against Defendants-Appellees. The case shall be reassigned to a different district judge on remand. See Velazquez, 793 F.3d at 1030. DISMISSED in part, REVERSED in part, and REMANDED. Judge: JRT Authoring. FILED AND ENTERED JUDGMENT. [10518028] [15-35018, 15-35179]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANTHONY PATRICK REED,
Plaintiff-Appellant/
Cross-Appellee,

Nos. 15-35018
15-35179
D.C. No.
2:13-cv-00017-SEH

v.
DOUG LIEURANCE, in his
individual capacity; BRIAN
GOOTKIN, in his individual
capacity; GALLATIN COUNTY
SHERIFF’S OFFICE, a department
of Gallatin County; and
GALLATIN COUNTY,
Defendants-Appellees/
Cross-Appellants.

OPINION

Appeals from the United States District Court
for the District of Montana
Sam E. Haddon, Senior District Judge, Presiding
Argued and Submitted April 5, 2017
Seattle, Washington
Filed July 24, 2017

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REED V. LIEURANCE
Before: Alex Kozinski and William A. Fletcher, Circuit
Judges, and John R. Tunheim,* Chief District Judge.
Opinion by Judge Tunheim

SUMMARY**

Civil Rights
The panel reversed the district court’s summary judgment,
the district court’s Fed. R. Civ. P. 12(b)(6) dismissals, and its
judgment as a matter of law, and dismissed for lack of
jurisdiction an appeal from the district court’s order denying
defendants’ motion for attorney fees, in an action brought
pursuant to 42 U.S.C. § 1983 and state law.
Plaintiff Anthony Reed alleged that his constitutional
rights were violated when he was arrested and cited while
volunteering to observe an interagency government
operation to herd buffalo into Yellowstone National Park.
Construing the facts in Reed’s favor, the panel could not
conclude that as a matter of law, a reasonably prudent officer
in defendant Deputy Lieurance’s situation would have had
probable cause to believe that Reed obstructed the herding
operation. The panel determined that the district court

*

The Honorable John R. Tunheim, Chief United States District Court
Judge for the District of Minnesota, sitting by designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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improperly invaded the province of the jury when it resolved
factual disputes material to the question of probable cause.
Thus, defendants were not entitled to summary judgment on
Reed’s unlawful seizure claim.
The panel reversed the district court’s sua sponte
dismissal, pursuant to Fed. R. Civ. P. 12(b)(6), of Reed’s
failure-to-train claim on the grounds that the district court did
not first provide Reed with notice and an opportunity to
respond before dismissing the claim. The panel further held
that the district court abused its discretion by excluding the
testimony of Reed’s police practices expert as it related to the
failure-to-train claim.
The panel held that the district court committed reversible
error in granting judgment as a matter of law on Reed’s First
Amendment and related state claims without first providing
Reed notice of the grounds for the decision. Addressing the
merits of the First Amendment claim, the panel held that in
ruling that defendants were entitled to judgment as a matter
of law, the district court improperly resolved numerous
factual disputes reserved for the jury.
The panel determined that it lacked jurisdiction to review
the district court’s denial without prejudice of defendants’
motion for attorney fees and therefore dismissed defendants’
cross-appeal from that order. On remand, the panel ordered
that the case be reassigned to a different district judge.

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REED V. LIEURANCE
COUNSEL

Rebecca Kay Smith (argued), Missoula, Montana, for
Plaintiff-Appellant/Cross-Appellee.
Steven Robert Milch (argued), Billings, Montana, for
Defendants-Appellees/Cross-Appellants.

OPINION
TUNHEIM, Chief District Judge:
On May 23, 2012, officers from the Gallatin County
Sheriff’s Office (the “Sheriff’s Office”) were involved in an
interagency governmental operation to herd buffalo into
Yellowstone National Park. Plaintiff-Appellant Anthony
Patrick Reed was attempting to observe the herding operation
as the buffalo were ushered across U.S. Route 191 (“Highway
191”). While Reed was parked at an observation point,
Defendant-Appellee Deputy Doug Lieurance issued a
misdemeanor citation to Reed for obstructing the herding
operation and threatened him with jail time if he did not
move. Reed brought this action under 42 U.S.C. § 1983,
arguing that Deputy Lieurance’s actions violated Reed’s First
and Fourth Amendment rights and related Montana
constitutional rights and that Gallatin County Sheriff Brian
Gootkin, the Sheriff’s Office, and Gallatin County have a
policy or practice of providing constitutionally inadequate
training to Gallatin County police officers.
The district court dismissed some of Reed’s claims at
summary judgment and granted judgment as a matter of law
for Defendants on the remaining claims after Reed presented

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evidence at trial. Reed now appeals these decisions as well
as the district court’s exclusion of Reed’s expert witness and
denial of his motion to amend the complaint. Defendants
cross-appeal the district court’s denial of their motion for
attorney fees. We reverse the dismissal of Reed’s claims and
the exclusion of his expert and dismiss for lack of jurisdiction
Appellees’ cross-appeal from the district court’s attorney fee
order.
I. Factual and Procedural Background1
Reed is a volunteer with the Buffalo Field Campaign
(the “Campaign”), a 501(c)(3) non-profit conservation
organization that sends volunteers to observe and document
the herding (also called “hazing”) of buffalo in and near
Yellowstone National Park. Pursuant to an interagency
agreement, government personnel from a number of state and
federal agencies carry out hazing operations as many as four
or five times per week between December and July. The
Campaign provides video footage and information about the
hazing to news outlets and government agencies.
The hazing is accomplished using a variety of
methods—horseback riders, cars, all-terrain vehicles,
snowmobiles, and sometimes helicopters. On May 11, 2012,
less than two weeks before the events giving rise to this
lawsuit, information collected by Campaign volunteers was
submitted as evidence in a federal environmental lawsuit
challenging the use of helicopters in buffalo hazing. On May
14, 2012, the district court granted a temporary restraining

1

Because the evidence presented at summary judgment and at trial
are similar in all material respects, we draw on both deposition and trial
testimony in this factual summary.

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order in that case prohibiting the use of helicopters during
hazing in the area.
On May 23, 2012, Reed and another Campaign volunteer,
Kasi Craddock-Crocker, were in a vehicle attempting to
observe the herding of buffalo east into Yellowstone National
Park across Highway 191, which runs north and south on the
west side of the Park. Agent Rob Tierney of the Montana
Department of Livestock was in charge of the haze that day,
and two Deputies from the Sheriff’s Office—Deputy
Lieurance and Deputy Mark Hernandez—provided law
enforcement assistance.
As relevant to this appeal, the planned route for the haze
was to travel with the buffalo east on Madison Arm
Road—which runs roughly perpendicular to Highway
191—to the intersection with Highway 191; to herd the
buffalo east over Highway 191; and then to continue eastward
after crossing Highway 191, where the east-west road
changes names to Conservation Lane. Roughly 0.3 miles
north of the Highway 191-Conservation Lane intersection, the
Madison River runs east to west. Both the east-west roads
(Madison Arm Road and Conservation Lane) and the
Madison River are in a relatively low-lying area. Another
0.3 miles north of the Madison River, the elevation noticeably
increases. The divide between the southern low-lying area
and the elevated area to the north is the east-west-running
Madison Rim; at the point where Highway 191 intersects
with Madison Rim, there is a 150-foot drop to the valley
below. While the herders hoped to force the buffalo to cross
Highway 191 south of the Madison River, Defendants
produced evidence showing that the buffalo’s actual path can
be difficult to predict, and in hazes past, the buffalo had
occasionally crossed the highway north of the river.

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In order to prevent collisions between cars and buffalo,
Agent Tierney’s team temporarily blockaded a stretch of
Highway 191. Agent Tierney set up the blockade of the
northbound lane several hundred feet south of Conservation
Lane, while Deputy Lieurance blockaded southbound traffic
0.9 miles north of Conservation Lane, at the intersection of
Highway 191 and Ecology Lane. Ecology Lane crosses
Highway 191 roughly 0.3 miles north of Madison Rim.
Between Ecology Lane and Madison Rim, there is a
significant turn in the highway. The blockade of southbound
traffic was placed at a location relatively far from the planned
haze route so that it would be visible to southbound traffic,
including large trucks traveling at high speeds, in time for
drivers to stop safely before reaching the downward incline
around the bend.
Reed initially parked his vehicle just east of Highway 191
and just north of Conservation Lane in order to get a clear
view of the buffalo as they crossed the highway. Reed had
observed hazes from the same location taking the same route
in the past. While Reed was parked in that spot, Agent
Tierney approached the vehicle and advised Reed he was
parked in the planned herding route and needed to move his
vehicle. Reed’s version of events is that Agent Tierney told
Reed to head either north or south to get out of the way, while
Defendants posit that Agent Tierney specifically told Reed
three times that he needed to move either south of the
northbound traffic blockade or north of the southbound traffic
blockade.
After speaking with Agent Tierney, Reed and CraddockCrocker drove north. Reed’s version of events is that he
drove about 0.6 miles north, exited Highway 191, and parked
on a gravel road running parallel to the highway and

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REED V. LIEURANCE

separated from the highway by a grass median. According to
Reed, the parking spot was up the hill, roughly 0.3 miles
north of the point where Highway 191 crosses the Madison
River. Reed testified that he parked in this location
“[b]ecause it was the farthest away place to be out of the way,
but still be able to see the crossing and get a good count on
the buffalo” and because he and Craddock-Crocker “thought
[they] would be well out of the way.” In contrast, Agent
Tierney testified that Reed parked just seventy-five yards
north of the Madison River.
After Reed drove north and parked, Agent Tierney
radioed Deputy Lieurance, who had not yet blockaded the
southbound lane, to tell him that Reed had not followed
Agent Tierney’s instructions to go north of the southbound
blockade. Deputy Lieurance then called for a temporary halt
to the haze and drove to Reed’s location. After a brief verbal
exchange, in which Deputy Lieurance asked Reed why he
parked where he parked “when [he had] been instructed to go
to a different place,” and Reed protested that he was “not
interfering with the haze” and “not breaking any law,”
Deputy Lieurance cited Reed for obstructing a peace officer
or other public servant—a misdemeanor—pursuant to Mont.
Code Ann. § 45-7-302. While issuing the citation, Deputy
Lieurance said: “You’ve been instructed by law enforcement
to do something. You didn’t do it.” The citation includes the
following hand-written description: “was told by a law
enforcement officer to be in a specific place during a
governmental operation 3 times and still did not comply.” At
the time he issued the citation, no buffalo, horses, or riders
were in Deputy Lieurance’s sight and he knew neither the
planned haze route for the day nor the specific location of the
herd at that time.

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After Deputy Lieurance issued the citation, Reed and
Craddock-Crocker told Deputy Lieurance that it was “illegal”
to tell them they had to go to a specific place if they were not
actually obstructing anything. Deputy Lieurance told Reed
that he would be arrested if he did not move outside of the
blockaded area. Deputy Lieurance testified that he felt a
sense of urgency because while he had called the horseback
riders herding the buffalo to direct them to stop the haze, that
did not mean the buffalo had stopped moving east; thus
Deputy Lieurance needed to leave the scene and head north
to blockade southbound traffic before the buffalo reached the
highway.
Reed then drove north to the highway’s
intersection with Ecology Lane, after which the highway was
eventually blockaded and the buffalo crossed safely. From
their location at the southbound blockade, Reed and
Craddock-Crocker had no view of the buffalo crossing
Highway 191. The parties disagree about exactly where the
buffalo crossed the highway; the haze appears to have
roughly followed the planned route, with Defendants positing
that some buffalo may have crossed as far north as the
Madison River. There is no evidence that any buffalo were
north of the Madison River, let alone that any buffalo
wandered up Madison Rim.
Video footage of the buffalo inside Yellowstone National
Park shows that, later on the same day, members of the public
were permitted to observe the same herding operation from
roughly fifty yards away.
On July 10, 2012, the state prosecutor moved to
voluntarily dismiss the obstruction charge against Reed after
Reed’s attorney provided a video and witness declarations
documenting the citation. The state court dismissed the
charges the following day.

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Reed filed this lawsuit in the U.S. District Court for the
District of Montana on March 18, 2013, asserting that Deputy
Lieurance’s conduct violated Reed’s First and Fourth
Amendment rights and related Montana constitutional rights,
and that Gallatin County, the Sheriff’s Office, and Sheriff
Gootkin failed to train officers regarding Montana’s
obstruction statute and the First and Fourth Amendments.
The parties filed cross-motions for summary judgment
and motions in limine. Ruling from the bench on July 23,
2014, the district court granted Defendants’ motion for
summary judgment on Reed’s unreasonable seizure and
failure-to-train claims, denied summary judgment on the First
Amendment claims, and excluded Reed’s police practices
expert witness, Timothy Longo. On August 20, 2014, Reed
moved to amend the complaint; the district court denied the
motion on October 6, 2014.
The district court held a jury trial on Reed’s First
Amendment claims in January 2015. After Reed presented
his case, Defendants moved for judgment as a matter of law
under Fed. R. Civ. P. 50, which the district court granted as
to all remaining claims.
On January 20, 2015, Defendants filed a motion for an
award of attorney fees. The district court subsequently
denied the motion “without prejudice to renewal, if
appropriate, following final disposition of all matters on
appeal.”
Reed now appeals the district court’s summary judgment
order, the denial of his motion to amend the complaint, the
exclusion of his expert, and the grant of judgment as a matter

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of law for Defendants. Defendants cross-appeal the district
court’s denial of their motion for attorney fees.
II. Standards of Review
We review de novo the district court’s orders granting
summary judgment and judgment as a matter of law. Edgerly
v. City & Cty. of S.F., 599 F.3d 946, 953, 960 (9th Cir. 2010).
We review for abuse of discretion the district court’s denial
of Defendants’ motion for attorney fees, Kohler v. Flava
Enters., Inc., 779 F.3d 1016, 1018 (9th Cir. 2015), denial of
Reed’s motion to amend the complaint, Ward v. Circus
Circus Casinos, Inc., 473 F.3d 994, 1000 (9th Cir. 2007),
and exclusion of Reed’s expert, Estate of Barabin v.
AstenJohnson, Inc., 740 F.3d 457, 460 (9th Cir. 2014) (en
banc).
Summary judgment is appropriate if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
deciding court must view the evidence, including all
reasonable inferences, in favor of the non-moving party.
Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015). “An
issue of material fact is genuine if there is sufficient evidence
for a reasonable jury to return a verdict for the non-moving
party.” Id. (quoting Thomas v. Ponder, 611 F.3d 1144, 1150
(9th Cir. 2010)). The standard for judgment as a matter of
law under Rule 50(a) “mirrors” the summary judgment
standard. Reeves v. Sanderson Plumbing Prods., 530 U.S.
133, 150 (2000) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250–51 (1986)). Thus, we view the trial
evidence in the light most favorable to the non-moving party,
and “[i]f conflicting inferences may be drawn from the facts

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[presented at trial], the case must go to the jury,” LaLonde v.
County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000).
III. Discussion
A. Unreasonable Seizure
First, Reed challenges the district court’s grant of
summary judgment for Defendants on his claim of
unreasonable seizure in violation of the Fourth Amendment
and its corollary in Art. 2, § 11 of the Montana Constitution.2
“It is well established that ‘an arrest without probable
cause violates the Fourth Amendment and gives rise to a
claim for damages under [42 U.S.C.] § 1983.’” Rosenbaum
v. Washoe County, 663 F.3d 1071, 1076 (9th Cir. 2011)
(quoting Borunda v. Richmond, 885 F.2d 1384, 1391 (9th Cir.
1988)). Probable cause exists “when the facts and
circumstances within [an officer’s] knowledge are sufficient
for a reasonably prudent person to believe that the suspect has
committed a crime.” Id. “The analysis involves both facts
and law. The facts are those that were known to the officer
at the time of the arrest. The law is the criminal statute to
which those facts apply.” Id. Furthermore, if an officer

2

“The Montana Constitution contains one of the strongest state
constitutional protections of privacy in the Nation.” Friedman v. Boucher,
580 F.3d 847, 856 (9th Cir. 2009). See also Hon. James C. Nelson,
Keynote Address: The Right to Privacy, 68 Mont. L. Rev. 257, 259 (2007)
(“This [privacy] right in Montana guarantees far greater protection from
unreasonable searches and seizures than does the Fourth Amendment to
the federal Constitution.”), quoted in Friedman, 580 F.3d at 856. Because
we find there is a genuine issue of material fact as to whether Reed’s
Fourth Amendment rights were violated, we need not also analyze Reed’s
unreasonable seizure claim under the state-law standard.

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makes an arrest without probable cause, he or she may be
entitled to qualified immunity as long as it is reasonably
arguable that there was probable cause for the arrest. Id.
The district court ruled that Deputy Lieurance had
probable cause to arrest and cite Reed for the obstruction.3
“A person commits the offense of obstructing a peace officer
or public servant if the person knowingly obstructs, impairs,
or hinders the enforcement of the criminal law, the
preservation of the peace, or the performance of a
governmental function, including service of process.” Mont.
Code Ann. § 45-7-302(1). In City of Kalispell v. Cameron,
the Montana Supreme Court reversed a conviction for
obstruction when the defendant had merely failed to follow
an officer’s instructions. 46 P.3d 46, 47 (Mont. 2002). The
Kalispell court explained that “an individual obstructing a
peace officer must engage in conduct under circumstances
that make him or her aware that it is highly probable that
such conduct will impede the performance of a peace
officer’s lawful duty.” Id. (emphasis added); see Mont. Code
Ann. § 45-2-101(35) (“A person acts knowingly with respect
to the result of conduct described by a statute defining an
offense when the person is aware that it is highly probable
that the result will be caused by the person’s conduct.”
(emphasis added)).

3

The parties do not dispute that there was a Fourth Amendment
seizure when Deputy Lieurance issued the citation for obstruction and
subsequently forced Reed to go to a different location under threat of
being taken into physical custody. We agree that there was a Fourth
Amendment seizure, see California v. Hodari D., 499 U.S. 621, 626
(1991) (“An arrest requires either physical force . . . or, where that is
absent, submission to the assertion of authority.”), and therefore the
operative question is whether Deputy Lieurance had probable cause to
believe that Reed had committed or was committing obstruction.

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Additionally, while “an officer need not have probable
cause for every element of the offense . . . when specific
intent is a required element of the offense, the arresting
officer must have probable cause for that element in order to
reasonably believe that a crime has occurred.” Blankenhorn
v. City of Orange, 485 F.3d 463, 472 (9th Cir. 2007) (quoting
Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994)).
In Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d
1486, 1498–99 (9th Cir. 1996), we applied Gasho to a
California law regulating motorcycle helmets. The law
allowed for the issuance of a traffic citation to a rider wearing
a non-conforming helmet, but the rider needed “actual
knowledge of the helmet’s non-conformity to be guilty of
violating the helmet law.” Id. at 1499. We defined “specific
intent” for purposes of probable cause analysis as “a special
mental element which is required above and beyond any
mental state required with respect to the actus reus of the
crime.” Id. at 1499 n.7 (quoting Specific Intent, Black’s Law
Dictionary (6th ed. 1990)). Thus, the helmet law required
specific intent—knowledge of a helmet’s non-conformity—
so the citing officer needed probable cause to believe the rider
possessed this knowledge for the citation to comply with the
Fourth Amendment.
Here, we find that the district court improperly invaded
the province of the jury when, at the summary judgment
stage, it resolved factual disputes material to the question of
probable cause. Reviewing the record before the district
court at summary judgment, we find that it is possible a jury
could conclude that Deputy Lieurance had probable cause to
believe Reed’s presence at the observation point would likely
obstruct the haze and also that Reed possessed the requisite
specific intent.

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Alternatively, a reasonable jury could conclude that
Deputy Lieurance knew that Reed presented little to no risk
of obstructing the operation while parked on the gravel road
up the hill over half a mile from the planned route of the haze,
and thus there was at best a low probability that Reed might
“impede the performance of a peace officer’s law duty.”
Kalispell, 46 P.3d at 47. There is evidence in the record
suggesting that Deputy Lieurance had experience with hazes
in the same location and he thus could have known that
buffalo rarely, if ever, climb up Madison Rim. The record
also clearly supports the need to stop traffic from driving on
the highway near the haze, but the record is less supportive of
the safety justifications for removing a parked car located off
the highway. For one thing, there is no evidence suggesting
that Defendants ever planned to blockade or routinely
blockaded the gravel road; thus, when Deputy Lieurance
issued the citation, Reed was not actually in violation of any
road blockade. Defendants also portray the buffalo as wild,
dangerous, and highly unpredictable animals, but Reed
offered evidence rebutting this characterization. There is
evidence showing that Reed had been permitted to observe
past hazes from a much closer vantage point and also that
onlookers were permitted to come within fifty yards of the
same haze later that day. All of this calls into question
whether it was reasonable for Deputy Lieurance to believe
Reed’s presence uphill and over fifty feet away from the
haze, parked on a gravel road that was not currently or
routinely blockaded, presented a safety concern. And at a
minimum, a reasonable jury could conclude that because
Deputy Lieurance did not personally know the route that the
haze would take that day, he did not possess information
sufficient to believe there was a high probability that Reed’s
observation from the parking spot would disrupt the haze.

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As another possibility, even if a jury concluded Deputy
Lieurance had probable cause to believe Reed was
obstructing the haze, a jury could conclude Deputy Lieurance
lacked probable cause to believe that Reed had the necessary
specific intent to impede the haze. See Easyriders Freedom
F.I.G.H.T., 92 F.3d at 1498–99; Kalispell, 46 P.3d at 47.
First, Reed had already relocated to a significant distance
when requested to do so and told Deputy Lieurance he was
“not interfering with the haze.” Second, a reasonable jury
could find Defendants’ evidence lacks credibility and
conclude that Agent Tierney never told Deputy Lieurance that
he had instructed Reed to move either north or south of the
road blockade. We note that at the time Agent Tierney
allegedly instructed Reed to move north or south of the
blockade, it is undisputed that the southbound blockade was
not yet set up. Third, there is also evidence showing that
Deputy Lieurance was familiar with Reed based on
interactions at prior hazes. Thus, even if Deputy Lieurance
held a genuine belief that Agent Tierney directed Reed to
move north or south of the blockade, Deputy Lieurance may
have also known that Reed knew parking at the observation
point was not likely to obstruct the haze.
Moreover, a jury could find Deputy Lieurance issued the
citation for one or more reasons that do not satisfy the Fourth
Amendment. First, a jury could conclude that Deputy
Lieurance’s argument that Reed was “obstructing” the haze
was pretextual, and that his real motivation in detaining and
citing Reed was tied to the Campaign’s recent lawsuit
limiting the use of helicopters in hazing. Alternatively, there
are some facts in the record tending to show that Deputy
Lieurance, like the officer in Kalispell, issued the citation
because of Reed’s alleged refusal to follow an order, as

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opposed to any genuine likelihood that Reed would obstruct
the haze. See 46 P.3d at 47.
“[T]he district court ‘improperly weighed evidence
favorable to [Reed] against other evidence presented . . . and
failed to draw all reasonable inferences in [Reed’s] favor.’”
Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th
Cir. 2015) (quoting Krechman v. County of Riverside,
723 F.3d 1104, 1110 (9th Cir. 2013)). Construing the facts in
Reed’s favor, we cannot conclude that as a matter of law, a
reasonably prudent officer in Deputy Lieurance’s situation
would have had probable cause to believe Reed committed
obstruction. Thus, Defendants are not entitled to summary
judgment on Reed’s unlawful seizure claim. See Act
Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993)
(holding that “where genuine disputes of a material nature
exist” regarding “the facts and circumstances within an
officer’s knowledge,” summary judgment is inappropriate).4

4

In addition, Deputy Lieurance is not entitled to qualified immunity.
“The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(citation omitted). An officer sued for unlawful arrest is entitled to
qualified immunity if “it is reasonably arguable that there was probable
cause for arrest.” Rosenbaum, 663 F.3d at 1076.
“For purposes of qualified immunity, we resolve all factual disputes
in favor of the party asserting the injury.” Ellins v. City of Sierra Madre,
710 F.3d 1049, 1064 (9th Cir. 2013). In this case, the factual disputes that
preclude a finding that, as a matter of law, Deputy Lieurance acted with
probable cause also preclude a finding that he had arguable probable
cause. See Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir. 2007)
(“[I]f the officer’s reasonableness depends on material issues of fact, then
summary judgment is inappropriate for . . . federal false arrest claims.”).

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B. Failure to Train

Second, we consider Reed’s challenge to the dismissal of
his failure-to-train claim against Sheriff Gootkin, the
Sheriff’s Office, and Gallatin County. Although the parties
moved for summary judgment on this claim, the district court
did not apply the summary judgment standard set out in Rule
56, nor did the court consider the sufficiency of Reed’s
evidence. Instead, the district court dismissed the failure-totrain claim for failure to satisfy the pleading standard set out
in Fed. R. Civ. P. 12(b)(6), Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Defendants never filed a Rule 12 motion before the
district court, and Defendants’ summary judgment briefing
did not invoke Rule 12. Thus, we consider the district court’s
decision a sua sponte Rule 12 dismissal for failure to state a
claim.
“Although ‘[a] trial court may dismiss a claim sua sponte
under [Rule 12(b)(6)],’ the court must give notice of its
intention to dismiss and ‘afford plaintiffs “an opportunity to
at least submit a written memorandum in opposition to such
motion.”’” Lee v. City of Los Angeles, 250 F.3d 668, 683 n.7
(quoting Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991
(9th Cir. 1987) (first quotation) and Wong v. Bell, 642 F.2d

Furthermore, the Fourth Amendment principles at issue here and the
Montana Supreme Court’s interpretation of the obstruction statute were all
clearly established at the time.
The Court also notes that even if Deputy Lieurance were entitled to
qualified immunity on Reed’s Fourth Amendment claim, Montana courts
do not afford defendants qualified immunity for claimed state
constitutional violations. Dorwart v. Caraway, 58 P.3d 128, 140 (Mont.
2002).

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359, 362 (9th Cir. 1981) (second quotation)). Even if a court
does first provide proper notice, “we will uphold a sua sponte
dismissal without leave to amend only where the plaintiff
‘cannot possibly win relief.’” Id. (quoting Wong, 642 F.2d at
362).
Here, the district court did not first provide Reed notice
and an opportunity to respond before dismissing the failureto-train claim for failure to satisfy Rule 12(b)(6). Therefore,
we reverse the dismissal of this claim.5
C. Exclusion of Reed’s Expert Witness
Reed argues the district court abused its discretion in
excluding the testimony of Reed’s police practices
expert—Timothy Longo, the Police Chief for the City of
Charlottesville, Virginia. Chief Longo’s testimony relates

5

Moreover, the district court denied Reed’s subsequent motion to
amend the complaint in order to expand the failure-to-train allegations.
The district court reasoned that Reed failed to show “good cause” for
modifying the scheduling order, as required under Fed. R. Civ. P.
16(b)(4), and did not comment on Lee’s requirement that a motion to
amend in such circumstances should be granted unless the plaintiff
“cannot possibly win relief.” Lee, 250 F.3d at 683 n.7 (quoting Wong,
642 F.2d at 362). After a thorough review of the record before the district
court at the time, we find it impossible to conclude that Reed “cannot
possibly win relief” on his failure-to-train claim. Therefore, even if the
district court had given Reed proper notice, Reed would still be entitled to
amend the complaint to remedy any deficiency in the complaint’s failureto-train allegations.
The district court never applied the Rule 56 standard to determine
whether Defendants are entitled to summary judgment on Reed’s failureto-train claim. We decline to do so without first affording the district
court a chance to consider this question.

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primarily to the failure-to-train claim, which the district court
dismissed prior to addressing the motion to exclude.
Therefore, we find it appropriate to allow the district court to
reconsider the order excluding Chief Longo’s testimony
given that it may be more relevant in the context of a revived
failure-to-train claim.
Furthermore, “[a] district court abuses its discretion if it
does not apply the correct law or if it rests its decision on a
clearly erroneous finding of material fact.” Jeff D. v. Otter,
643 F.3d 278, 283 (9th Cir. 2011) (quoting Casey v.
Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004)).
While the district court may have had a proper basis to
exclude portions of the expert report in its discretion, we find
multiple “manifestly erroneous” misstatements of law and
fact in the district court’s order. See United States v. Cazares,
788 F.3d 956, 976 (9th Cir. 2015) (“A district court’s rulings
on the admissibility of expert testimony . . . will be reversed
only if ‘manifestly erroneous.’” (quoting United States v.
Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000))).
First, the district court stated that an expert may only rely
upon evidence that is in the record or that is “of the sort that
any expert would rely on,” including, for example, the
number of feet in a mile or the average body temperature of
an adult human being. Based on the use of these examples,
it appears that the district court believed it is only permissible
for an expert to rely on facts not admitted in the record if
those facts are judicially noticeable under Fed. R. Evid. 201.
This is contrary to Fed. R. Evid. 703, which allows an expert
to “base an opinion on facts or data in the case that the expert
has been made aware of or personally observed” as long as
“experts in the particular field would reasonably rely on those
kinds of facts or data in forming an opinion on the subject.”

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In such circumstances, the facts the expert relies on “need not
be admissible for the opinion to be admitted.” Id.
Second, the district court found Chief Longo’s report
objectionable for commenting on “the ability or perhaps
nonability of others to do their job,” because such comments
functioned “at least indirectly, if not absolutely directly, [to]
raise questions about the credibility of persons and parties to
the lawsuit.” While “[a]n expert witness is not permitted to
testify specifically to a witness’ credibility,” United States v.
Candoli, 870 F.2d 496, 506 (9th Cir. 1989), we know of no
rule barring expert testimony because it might indirectly
impeach the credibility of an opposing party’s testimony.
Indeed, the key question for Reed’s failure-to-train claim is
whether Defendants performed their job functions in line with
Fourth Amendment standards. Reed is permitted to present
expert testimony critical of Defendants’ job performance or
in conflict with Defendants’ testimony as long as the expert’s
testimony complies with Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the Federal
Rules of Evidence.
Third, the district court stated that Chief Longo’s report
“unfortunately contains what are appropriately being
characterized as disparaging comments on the conduct of
non-parties. Specifically in paragraph 165 there’s criticism
of the county prosecutor made. That is plainly over the top
in terms of the balanced view to be expressed by an expert.”
Reed correctly points out that neither in paragraph 165 nor
elsewhere in his report does Chief Longo criticize the county

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prosecutor.6 It appears that the district court’s frustration
about this “criticism” of the county prosecutor materially
colored its view of the validity of the report as a whole.7
Clearly, the district court need not permit Chief Longo to
present legal opinions. See, e.g., Crow Tribe of Indians v.
Racicot, 87 F.3d 1039, 1045 (9th Cir. 1996) (“Expert
testimony is not proper for issues of law.”). But a police
practices expert may provide helpful testimony regarding
whether there was a failure to train without veering into
improper legal opinions. See, e.g., Johnson v. Hawe,
388 F.3d 676, 686 (9th Cir. 2004) (reversing a district court’s
grant of summary judgment for a defendant on a failure-totrain claim where the district court held the plaintiff provided
no evidence of a policy or custom, but the plaintiff had in fact
submitted a declaration from a law enforcement expert who
opined that the defendant police department’s practices
amounted to a failure to train).
Because the district court abused its discretion in
excluding the entirety of Chief Longo’s testimony, we reverse
that decision for reconsideration under the proper legal
standard.

6

In fact, paragraph 165 states Chief Longo’s opinion that the Gallatin
County prosecutor’s office’s refusal to prosecute previous obstruction
cases supports the conclusion that the Sheriff’s department is regularly
issuing baseless obstruction citations.
7
We are also concerned by other statements in the district court’s
order that suggest that the court excluded the expert report in part because
the court “simply . . . disagree[d] with the conclusions of the expert,”
which is not a proper basis for excluding such testimony. Kennedy v.
Collagen Corp., 161 F.3d 1226, 1230 (9th Cir. 1998).

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D. First Amendment Claims
1. Lack of Notice
Reed argues that the district court committed reversible
procedural error in granting judgment as a matter of law on
Reed’s First Amendment and related state claims without first
providing Reed notice of the grounds for the decision.8
In Waters v. Young, we held that if a motion for judgment
as a matter of law pursuant to Rule 50 does not specify the
evidentiary holes in the non-moving party’s case, the court
has a duty to inform the non-moving party of those
deficiencies and provide an opportunity to correct them.
100 F.3d 1437, 1440–42 (9th Cir. 1996). “These obligations
reflect a major purpose of the motion for judgment as a
matter of law, which is ‘to call the claimed deficiency in the
evidence to the attention of the court and to opposing counsel
at a time when the opposing party is still in a position to
correct the deficit.’” Id. at 1441 (quoting Lifshitz v. Walter
Drake & Sons, 806 F.2d 1426, 1429 (9th Cir. 1986)). The
Waters court relied on the Advisory Committee Note to Rule
50, which guides our interpretation of Rule 50, and which
states that “[i]n no event . . . should the court enter judgment
against a party who has not been apprised of the materiality
of the dispositive fact and been afforded an opportunity to
present any available evidence bearing on that fact.” Fed. R.
Civ. P. 50 advisory committee’s note to 1991 amendment.
Though the plaintiff in Waters was pro se, we explained that

8

Reed’s speech-related claims include: (1) unreasonable restriction
of First Amendment speech, press, and assembly rights; (2) unreasonable
restriction of Montana constitutional speech, press, and assembly rights;
and (3) First Amendment retaliation.

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“[t]he extent of a party’s legal expertise is irrelevant for
purposes of [Rule 50],” and thus the Waters holding “applies
in all cases, including those in which parties are represented
by highly qualified counsel.” Waters, 100 F.3d at 1442.
Building on Waters, we held in Summers v. Delta Air Lines,
Inc., that a plaintiff was “neither apprised of the alleged
deficiencies in her proof nor given the opportunity to cure
such deficiencies” when the district court granted the
defendants’ Rule 50(a) motion “on wholly different grounds”
from those matters raised in the defendants’ motion.
508 F.3d 923, 927–28 (9th Cir. 2007).
Here, after Reed presented evidence, Defendants made a
Rule 50 motion. Reed reports that in ruling for Defendants as
a matter of law, the district court read from a detailed written
statement that apparently was prepared in advance. Not
surprisingly, the court’s pre-written reasons for granting
judgment as a matter of law did not correspond with the
arguments in Defendants’ oral motion made just minutes
earlier.9 Reed was “sandbagged by a decision on grounds not

9

Defendants provided three arguments in their Rule 50 motion:
(1) because Agent Tierney, and not Deputy Lieurance, established the
boundaries of the highway blockade, Deputy Lieurance cannot be held
personally responsible for enforcing those boundaries; (2) the evidence
was “clear” that Deputy Lieurance’s motivation for threatening to take
Reed to jail was not to chill his First Amendment rights, but rather to get
Reed to move out of the way because there was an urgent need for Deputy
Lieurance to leave the scene to begin blockading the highway; and
(3) Reed failed to produce evidence that would allow imposition of
punitive damages. The district court’s order granting judgment as a matter
of law was based on wholly distinct reasons: (1) in the court’s view, the
facts were “undisputed” in support of a finding as a matter of law that the
0.9-mile blockade of the highway was “reasonable for safety reasons” and
left open alternatives for Reed to observe the haze; (2) because the court
had previously decided there was probable cause to cite Reed for

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properly noticed,” id. at 927; this was reversible error, id. at
927–28.
2. Improper Factfinding
Reed also argues that Defendants were not entitled to
judgment as a matter of law on the merits. We agree.
As explained above, “[j]udgment as a matter of law is
appropriate when the evidence presented at trial permits only
one reasonable conclusion.” Torres v. City of Los Angeles,
548 F.3d 1197, 1205 (9th Cir. 2008) (quoting Santos v. Gates,
287 F.3d 846, 851 (9th Cir. 2002)). “Issues of credibility
belong to the trier of fact.” LaLonde, 204 F.3d at 963 (Trott,
J., concurring in part and dissenting in part). The parties’
briefing is replete with “facts [that] are disputed, and the
disputed facts here should have been submitted to the jury.”
Id.
First we examine Reed’s claim that in citing Reed for
obstruction and subsequently forcing Reed to leave his
parking spot on the gravel road, Deputy Lieurance
unreasonably restricted the exercise of Reed’s First
Amendment rights (and corollary Montana constitutional

obstruction, Reed had no right to remain parked on the gravel road, and
therefore Reed’s request to remain there was not a constitutionallyprotected activity; (3) there was insufficient evidence to find a but-for
causal relationship between the threat of jail and a desire to chill Reed’s
exercise of First Amendment rights; and (4) though neither party raised
the question of qualified immunity, the court held that alternatively,
Deputy Lieurance was entitled to qualified immunity on both First
Amendment claims.

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rights).10 At the time of the citation, Reed was located on a
public street, which is a quintessential public forum, Frisby
v. Schultz, 487 U.S. 474, 480 (1988), and he was engaging in
the First Amendment-protected activity of observing a
government operation, Fordyce v. City of Seattle, 55 F.3d
436, 439 (9th Cir. 1995) (recognizing a “First Amendment
right to film matters of public interest”—in that case, police
actions during a public demonstration). The government may
impose reasonable time, place, and manner restrictions on
expressive activity in a public forum. Kuba v. 1-A Agric.
Ass’n, 387 F.3d 850, 858 (9th Cir. 2004). A restriction is
“reasonable” if: (1) it is content-neutral; (2) it is narrowly
tailored to serve a significant government interest; and (3) it
“leave[s] open ample alternative channels for communication
of the information.” Id. (quoting Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989)); see also Dietrich v. John
Ascuaga’s Nugget, 548 F.3d 892, 897 (9th Cir. 2008).
Here, in ruling that Defendants were entitled to judgment
as a matter of law on this claim, the district court improperly
resolved numerous factual disputes reserved for the jury. For
example, the district court quite inexplicably applied a
“presumption” that Deputy Lieurance obeyed the law. The
district court also found it was “undisputed” that the presence
of Reed’s vehicle parked on the gravel road presented a safety
risk and interfered with the hazing operation; the district court
credited Defendants’ evidence regarding the buffalo’s

10

The district court applied only the federal constitutional framework
for unreasonable restrictions on speech, press, and assembly rights, and
the parties do not argue that there is any meaningful difference between
Reed’s rights under the federal and state constitutions. Therefore, the
Court assumes for purposes of this motion that the same analysis applies
to both claims.

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dangerousness and unpredictability. And the district court
found it “undisputed” that Agent Tierney directed Reed not
simply to go north or south from Conservation Lane, but to
go north of the southbound blockade or south of the
northbound blockade. Puzzlingly, the court also determined
that the fact that later on the same day observers were
permitted to come within fifty yards of the haze was “of no
reasonable evidentiary value in determining the issues in this
case.” Lastly, the court found that Reed “was given the
opportunity, at least at the south end of this no-drive zone, to
. . . view the haze operation as it crossed the highway.”
Based on these findings—which can only reasonably be
understood as factual findings and credibility
determinations—the district court concluded that the
restriction on Reed’s First Amendment activities was
reasonable as a matter of law because it was justified by
safety reasons, limited in time and location, and left open a
reasonable alternative. The court did not explicitly address
the question of content-neutrality.
Upon close review of the record, we find that contrary to
the district court’s conclusions, Reed presented evidence
sufficient to create material factual disputes as to all three
relevant inquiries: content neutrality, narrow tailoring to a
significant government interest, and the existence of
alternatives. See Kuba, 387 F.3d at 858 (explaining that a
restriction on First Amendment activity is unreasonable if it
fails to satisfy any one of these three prongs).
Regarding content neutrality, as noted above, a jury could
reasonably infer that Deputy Lieurance’s safety justification
was pretextual, and in fact he sought to prevent Campaign
volunteers from observing the haze. See Ward, 491 U.S. at

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791 (“The principal inquiry in determining content neutrality,
in speech cases generally and in time, place, or manner cases
in particular, is whether the government has adopted a
regulation of speech because of disagreement with the
message it conveys. The government’s purpose is the
controlling consideration.” (citation omitted)). As to narrow
tailoring, Reed presented evidence sufficient to show that
there was no genuine safety or operational reason to exclude
him from parking on the gravel road, and therefore, the
restriction was not narrowly tailored to a significant
government interest. And it is also not clear from the record
that after being cited for obstruction, there was any
alternative observation point open to Reed from which he was
able to view the buffalo crossing the road. We certainly
cannot conclude as a matter of law that the alternative
observation opportunities in this case were “ample.” Ward,
491 U.S. at 791. Thus, Defendants were not entitled to
judgment as a matter of law on Reed’s unreasonable
restrictions claim.
Second, Reed presented a First Amendment retaliation
claim at trial. Reed presented sufficient evidence for a jury
to conclude that Deputy Lieurance’s “desire to chill [Reed’s
protected activity] was a but-for cause of” the threat to take
Reed to jail. Ford v. City of Yakima, 706 F.3d 1188, 1193
(9th Cir. 2013); see also Hartman v. Moore, 547 U.S. 250,
256 (2006) (finding a First Amendment retaliation claim may
lie “when nonretaliatory grounds are in fact insufficient to
provoke the adverse consequences”). Reed also presented
evidence “demonstrat[ing] that [Deputy Lieurance’s threat]
would chill a person of ordinary firmness from future First
Amendment activity.” Ford, 706 F.3d at 1193. Therefore,
the district should have presented Reed’s First Amendment
retaliation claim to the jury.

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E. Attorney Fees
“Under 28 U.S.C. § 1291, this court has jurisdiction to
hear appeals of ‘final decisions’ of the district court.”
Wakefield v. Thompson, 177 F.3d 1160, 1162 (9th Cir. 1999).
“A ruling is final for purposes of § 1291 if it (1) is a full
adjudication of the issues, and (2) clearly evidences the
judge’s intention that it be the court’s final act in the matter.”
Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842,
846 (9th Cir. 2009) (quoting Nat’l Distribution Agency v.
Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997)).
The district court clearly intended to revisit the question of
an award of attorney fees, if appropriate, following the
resolution of this appeal. Because the district court made no
“final decision” on whether Defendants are entitled to
attorney fees, Wakefield, 177 F.3d at 1160, we lack
jurisdiction to review the district court’s denial without
prejudice of Defendants’ fees motion.
Conclusion
For the reasons stated above, we reverse the district
court’s (1) dismissal at summary judgment of Reed’s Fourth
Amendment and related state claims; (2) sua sponte Rule 12
dismissal of Reed’s failure-to-train claim; (3) exclusion of
Reed’s expert; and (4) judgment as a matter of law on Reed’s
First Amendment and related state claims. We do not disturb
the district court’s denial of Defendants’ motion for attorney
fees. Costs shall be taxed against Defendants-Appellees. The
case shall be reassigned to a different district judge on
remand. See Velazquez, 793 F.3d at 1030.
DISMISSED in part, REVERSED in part, and
REMANDED.