Scherer v. Ismail

── Scherer v. Ismail ── Court: Court of Appeals for the Ninth Circuit Date: May 14, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 14 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOY HO SCHERER, No. 25-2651 Plaintiff - Appellee, D.C. No. v. 8:22-cv-01931-JVS-ADS WESSSAM WAYNE ISMAIL; NELSON ANTONIO MARTINEZ, Jr., MEMORANDUM* Defendants - Appellants, and CITY OF LOS ANGELES, DOES, 1 through 10, inclusive, Defendants. Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Argued and Submitted April 22, 2026 Pasadena, California Before: HIGGINSON, NGUYEN, and BRESS, Circuit Judges.** Dissent by Judge NGUYEN. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen A. Higginson, United States Circuit Judge for the Court of Appeals, 5th Circuit, sitting by designation.  Los Angeles Police Department Officers Nelson Martinez and Wessam Ismail (Defendants) appeal the district court’s order denying their motion to dismiss based on qualified immunity in plaintiff Joy Scherer’s suit alleging First Amendment retaliation under 42 U.S.C. § 1983. In a prior appeal in this case, we reversed the district court’s dismissal of Scherer’s complaint for failure to state a claim, noting that, “[o]n remand, the district court may address, in the first instance, whether the officers are entitled to qualified immunity because Scherer failed to allege a violation of a ‘clearly established’ constitutional right.” Scherer v. City of L.A., 2024 WL 4658773, at *1 (9th Cir. Nov. 4, 2024) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). On remand, the district court concluded that the alleged constitutional violation was clearly established. We have jurisdiction to review denials of qualified immunity on an interlocutory basis under the collateral order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We review the denial of qualified immunity de novo. Hopson v. Alexander, 71 F.4th 692, 697 (9th Cir. 2023). We reverse. Defendants are entitled to qualified immunity under § 1983 “unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). In the first appeal, we held that, at the Rule 12(b)(6) stage, Scherer had sufficiently pleaded a constitutional violation. Scherer, 2024 WL 4658773, at *1. This second 2 25-2651 appeal thus concerns only the “clearly established” prong of the qualified immunity analysis. In conducting that inquiry, we are guided by the Supreme Court’s instruction that “‘[c]learly established’ means that, at the time of the officer’s conduct, the law was ‘sufficiently clear that every reasonable official would understand that what he is doing’ is unlawful.” Wesby, 583 U.S. at 63 (quoting al- Kidd, 563 U.S. at 741). “This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In conducting the “clearly established” analysis, the Supreme Court has “repeatedly stressed that courts must not ‘define clearly established law at a high level of ge