(CN) – A Nevada father arrested for trying to sell tickets outside of a fair with his children can file suit because scalping is not illegal in the state and a sheriff’s deputy charged him under an obscure law dredged from the “bowels of a library,” the 9th Circuit ruled.
Woshoe County Deputy Sheriff James Forbus arrested Hershell Rosenbaum in 2006 outside of the Nevada State Fair in Reno for “abuse, neglect or endangerment of a child, and obtaining money under false pretenses,” according to the ruling. Rosebaum was trying to sell two promotional tickets to the fair that he won from the KOZZ radio station. Forbus was wearing a KOZZ T-shirt and had his two young children, ages 6 and 8, in tow.
After placing Rosenbaum under arrest, Forbus escorted the two children to their mother parked a short distance away. On the way, Forbus told the children that their father’s behavior had been wrong and that he would be going to jail, according to the ruling.
Rosenbaum made bail after eight hours in jail. Since scalping is not a crime in Nevada, the charges were dropped.
In a federal lawsuit, Rosenbaum and his children claimed that Washoe County, Forbus and others had violated the Fourth and 14th Amendments. They also alleged that the deputy’s comments to the children had violated their 14th Amendment right to family integrity.
In a bid for qualified immunity, the defendants said Rosenbaum had violated an obscure, rarely prosecuted statute against “collecting for benefit without authority.”
Senior U.S. District Judge Edward Reed found that Forbus did not have probable cause to arrest Rosenbaum, but he nonetheless ruled granted the defendants’ summary judgment. Reed said Forbus had qualified immunity from the lawsuit because the statute used to justify the arrest after the fact was ambiguous. The District Court also ruled for the defendants on the family-integrity claim, finding that Forbus’ comments to the children were offensive but not unconstitutional.
The San Francisco-based federal appeals panel agreed with the lower court about the comments, finding that they did not “shock the conscience” enough to violate the Constitution. But the three-judge panel reversed the qualified-immunity decision and sent the case back to District Court.
“Qualified immunity for an unlawful arrest should not arise because 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,” wrote U.S. District Judge Nancy Gertner, sitting on the panel by designation from Boston.
“There is no evidence that anyone has ever been charged with this crime in Nevada,” she added. “Indeed, even in this case, once the officials had discovered the crime, Rosenbaum was never charged or prosecuted with it. 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. If it were so, 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.”