NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT MANN, Sr.; et al.,

Plaintiffs-Appellees,

v.

CITY OF SACRAMENTO; et al.,

Defendants,

and

JOHN C. TENNIS; RANDY R. LOZOYA,

Defendants-Appellants.

No. 17-17048

D.C. No. 2:17-cv-01201-WBS-DB

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

William B. Shubb, District Judge, Presiding

Argued and submitted August 15, 2018 

San Francisco, California

Before: O’SCANNLAIN and BEA, Circuit Judges, and STEARNS,

** District 

Judge.

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Richard G. Stearns, United States District Judge for 

the District of Massachusetts, sitting by designation.

FILED

SEP 7 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-17048

Defendants-Appellants John Tennis and Randy Lozoya (“Defendants”),

police officers for the city of Sacramento, California, appeal from the district 

court’s denial of their motion to dismiss Plaintiffs’ action under 42 U.S.C. § 1983. 

We have jurisdiction over this interlocutory appeal of the district court’s denial of 

qualified immunity,

1 Mitchell v. Forsyth, 472 U.S. 511, 525 (1985), as well as such 

issues as are “inextricably intertwined” with the qualified immunity issue, Lum v. 

City of San Joaquin, 584 F. App’x 449, 450–51 (9th Cir. 2014). We review de 

novo the district court’s denial of qualified immunity and the district court’s denial 

of Defendants’ motion to dismiss, Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir. 

2010), and we reverse.

Defendants are entitled to immunity unless (1) “the facts that a plaintiff has 

alleged . . . make out a violation of a constitutional right” and (2) “the right at issue 

was ‘clearly established’ at the time of defendant’s alleged misconduct.”2 Pearson 

v. Callahan, 555 U.S. 223, 232 (2009). Here, Plaintiffs alleged that Defendants 

deprived them of their constitutional rights to association with their adult brother, 

Joseph Mann (“Joseph”), by unlawfully shooting and killing him in 2016. In 

 

1

It is immaterial, for purposes of establishing jurisdiction over this interlocutory 

appeal, that the district court did not explicitly address qualified immunity. Giebel 

v. Sylvester, 244 F.3d 1182, 1186 n.6 (9th Cir. 2001).

2 Plaintiffs argue that Defendants waived any qualified immunity defense because 

their argument on that issue “encompassed merely 12[] lines of text.” Defendants’ 

argument, though concise, was sufficient to raise and preserve the argument.
3 17-17048

general, a relationship may be protected under either the First Amendment or the 

Due Process Clause of the Fourteenth Amendment. Erotic Service Provider Legal 

Education & Research Project v. Gascon, 880 F.3d 450, 458 (9th Cir. 2018) 

(“There are two distinct forms of freedom of association: (1) freedom of intimate 

association, protected under the Substantive Due Process Clause of the Fourteenth 

Amendment; and (2) freedom of expressive association, protected under the 

Freedom of Speech Clause of the First Amendment.”), as amended, 881 F.3d 792

(9th Cir. 2018); see also Keates v. Koile, 883 F.3d 1228, 1236 (9th Cir. 2018) (9th 

Cir. 2018) (“[W]e have held that claims under both the First and Fourteenth 

Amendment for unwarranted interference with the right to familial association 

could survive a motion to dismiss.” (citing Lee v. City of Los Angeles, 250 F.3d 

668, 686 (9th Cir. 2001)).

Plaintiffs failed to allege a violation of their constitutional rights to freedom 

of association under any theory recognized by this court. First, Plaintiffs have not 

pleaded sufficient facts to show that they and Joseph shared an “expressive

association” right protected by the First Amendment. Their complaint alleged only 

that they “shared a close relationship and special bond” with Joseph, and that 

“[t]heir relationships with their brother . . . presupposed deep attachments, 

commitments, and distinctively personal aspects of their lives.” See IDK, Inc. v. 

Clark Cty., 836 F.2d 1185, 1195 (9th Cir. 1988) (dismissing First Amendment 
4 17-17048

freedom-of-association claim where the plaintiffs “ma[d]e no claim that expression 

is a significant or necessary component of their activities”).

Nor have Plaintiffs pleaded sufficient facts to show that any of them shared 

an “intimate association” right protected under the First or Fourteenth 

Amendments. Plaintiffs have not alleged specific facts sufficient to show that any 

of them shared with Joseph a relationship of a type discussed in Board of Directors 

of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987), and its 

progeny, see, e.g., Lee, 250 F.3d at 685–86 (holding a mother adequately alleged a 

protected First Amendment association with her son under Rotary Club); Keates, 

883 F.3d at 1228 (holding parents have a First Amendment right of association 

with their children under Lee and Rotary Club). In Rotary Club, the Supreme 

Court stated as follows:

The intimate relationships to which we have accorded constitutional 

protection include marriage; the begetting and bearing of children; 

child rearing and education; and cohabitation with relatives. Of course, 

we have not held that constitutional protection is restricted to 

relationships among family members. We have emphasized that the 

First Amendment protects those relationships, including family 

relationships, that presuppose “deep attachments and commitments to 

the necessarily few other individuals with whom one shares not only a 

special community of thoughts, experiences, and beliefs but also 

distinctively personal aspects of one’s life.” But in Roberts we 

observed that “[d]etermining the limits of state authority over an 

individual’s freedom to enter into a particular association . . . 

unavoidably entails a careful assessment of where that relationship’s 

objective characteristics locate it on a spectrum from the most intimate 

to the most attenuated of personal attachments.” In determining 

whether a particular association is sufficiently personal or private to 
5 17-17048

warrant constitutional protection, we consider factors such as size, 

purpose, selectivity, and whether others are excluded from critical 

aspects of the relationship.

Rotary Club, 481 U.S. at 545–46 (citations omitted). In other words, relationships 

involving marriage, child-rearing, or cohabitation are protected by the First 

Amendment, and other relationships, “including family relationships,” may also be 

protected to the extent that the “objective characteristics” of the relationship (i.e.

“factors such as size, purpose, selectivity, and . . . exclu[sivity]”) demonstrate that 

it is “sufficiently personal or private to warrant constitutional protection.” Id. 

Plaintiffs did not allege that their relationships with Joseph involved marriage, 

child rearing, or cohabitation, as in Lee or Keates. Nor did they allege specific 

facts about the “objective characteristics” of their relationships with Joseph to 

show that they were nonetheless the sort of relationships that “warrant

constitutional protection.” Therefore, the complaint’s conclusory and formulaic 

recitation of language from Rotary Club was not sufficient to plead a right of 

intimate association protected by the First Amendment. Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007) (“[A] plaintiff’s obligation to provide the 

‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, 

and a formulaic recitation of the elements of a cause of action will not do.”)

(second alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) 
6 17-17048

(“[P]leadings that . . . are no more than conclusions[] are not entitled to the 

assumption of truth.”).

Moreover, even if plaintiffs could plead sufficient facts to satisfy the 

standards for intimate association set forth in Rotary Club, relief would be 

foreclosed under Ward v. City of San Jose, 967 F.2d 280 (9th Cir. 1991)

(dismissing siblings’ excessive-force claim under § 1983). In Ward, this court held 

that adult, non-cohabitating siblings do not “possess a cognizable liberty interest in 

their brother’s companionship.” Id. at 283–84. Because we analyze the right of 

intimate association in the same manner regardless whether we characterize it 

under the First or Fourteenth Amendments, Ward necessarily rejected any 

argument that adult, non-cohabitating siblings enjoy a right to intimate association.

Because the facts alleged by Plaintiffs failed to “make out a violation of a 

constitutional right,” the district court erred in denying Defendants’ motion to 

dismiss on the basis of qualified immunity. Pearson, 555 U.S. at 232. 

Accordingly, we reverse the district court’s order and remand. On remand, the 

district court may consider whether to grant Plaintiffs leave to amend their 

complaint.

REVERSED and REMANDED.