NOT FOR PUBLICATION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 s ubmitted August 1 5 , 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, CLE RK U.S. COURT OF APPEAL S2 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

o f Defend ants’ 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 a t issue was ‘clearly establ ished’ at the time of defendant’ s alleged misconduct.” 2 Pearson v. Callahan , 555 U.S. 223, 232 (2009). Here, Plaintiffs allege d that Defendants deprived them of their constitutional right s to association with their adult brothe r, 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 Defen dants 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

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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 & Resea rch 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 expre ssive association, protected under the Freedom of Speech C lause 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, 68 6 (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 allege d 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, I nc. v. Clark Cty. , 836 F.2d 1185, 1195 (9th Cir. 1988) (dismissing First Amendment4 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 pleade d sufficient facts to show that any of them shared an “intimate association” right protected under the First or Fourteenth
Amendments. Plaintiffs have not allege d specific facts sufficient to show that any of them shared with Joseph a relationship of a type discussed in Board of Directors of Rotary Int ernationa l 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 a lleged a protected First Amendment associ ation 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 constitutio nal protection include marriage; the begetting and bearing of children; child rearing and educat ion; and cohabitation with relatives. Of course, we have not held that constitutional protection is restricted to relationsh ips 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 s pecial 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 suffi ciently personal or private to5 17

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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 ot her words, relationships involving marriage, ch ild

- 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 relationship s 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 relationship s with Joseph to show that they were nonetheless the sort of relationship s that “ w arrant 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 origi nal) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009)6 17

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(“[P] leadings that . . . are no more than conclusions[] are not entitled to the assumption of truth .”). Moreover, e ven 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

- c ohabitating 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 i n the same manner regardless whether we characterize it
under the First or Fourteen th Amendment s, Ward necessarily rejected any argument that adult, non

- cohabit at ing 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, t he
district court may consider whether to grant Plaintiffs leave to amend their complaint

. REVERSED and REMANDED
.