NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SONJIA MACK, No. 20-16590

Plaintiff-Appellee, D.C. No. 2:18-cv-00799-APG-VCF v.

BRIAN E. WILLIAMS, Sr.; et al., MEMORANDUM*

Defendants-Appellants.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted August 10, 2021** San Francisco, California

Before: SILER,*** CHRISTEN, and FORREST, Circuit Judges.

Defendants-Appellants appeal from the district court’s denial of summary

judgment on Defendants’ qualified immunity defense against Sonjia Mack’s claim

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. that Defendants violated her constitutional rights by strip searching her without her

consent and without reasonable suspicion of criminal activity when she sought to

visit an inmate at the High Desert State Prison. We have jurisdiction under

, Isayeva v. Sacramento Sheriff’s Dep’t,

, 944–45 (9th Cir. 2017),

and we “review a district court’s denial of summary judgment on qualified immunity

grounds . . . de novo,” Roybal v. Toppenish Sch. Dist.,

(9th Cir.

2017). We affirm the district court.

On appeal, Defendants make a new argument based on a decision of this court

issued after they appealed, Cates v. Stroud,

(9th Cir. 2020), petition

for cert. filed (No. 20-1438). Specifically, they contend that, because it was not

clearly established before the Cates decision that a prison visitor had a right to leave

the facility instead of submitting to a strip search, they are entitled to qualified

immunity. Despite the general rule against raising new arguments on appeal, Club

One Casino, Inc. v. Bernhardt,

(9th Cir. 2020), we exercise our

discretion to consider Defendants’ new Cates argument because it is “purely” legal,

see United States v. Carlson,

(9th Cir. 1990).

The Cates rule does not help Defendants. It applies where prison officials have

reasonable suspicion to suspect a visitor of bringing contraband into the prison. See

Cates,

. Here, unlike in Cates, a genuine issue of fact exists regarding

whether Defendants reasonably suspected Mack of smuggling contraband.

2 Accordingly, even if Cates were clearly established for purposes of this case,

Defendants would not be entitled to qualified immunity.

Even if Defendants did not have the lack-of-reasonable-suspicion problem

just discussed, which is dispositive, their Cates argument faces an additional

difficulty. Cates held that “a prison visitor has a right to leave the prison rather than

undergo a strip search conducted on the basis of reasonable suspicion.”

. In the district court, Defendants asserted they told Mack that she could refuse

the strip search and leave the prison at any time. Thus, their argument on appeal—

that they are entitled to qualified immunity because they did not know they should

have given Mack the chance to leave the prison instead of submitting to a strip

search—is inconsistent with their position below.

AFFIRMED.

3