author: RILEY, Chief Judge.

text:
    John Maxwell MONTIN, Plaintiff-Appellant v. Y. Scott MOORE, M.D.; Mario Scalora, Ph.D.; Mary Paine, Ph.D., Defendants-Appellees Stephen Paden, M.D., Defendant Lisa Woodward, Ph.D., Defendant-Appellee Chin Chung, M.D.; Marco Baquero, M.D.; Eugene Oliveto, M.D., Defendants Ann Evelyn, M.D.; Dinesh Karumanchi, M.D.; Rajeev Chaturvedi, M.D.; Joanne Murney, Ph.D.; Sherri Browning, Ph.D.; Lorrene Jurgens, Nurse Practitioner; Mindy Abel, Psy.D., Defendants-Appellees Cynthia Petersen, Nurse Practitioner; James Allison, Ph.D., Defendants Corrine McCoy, Program Manager; Jennifer Cimpl, Psy.D.; Shannon Black, Psy.D.; Zakaria Siddiqui, M.D., Defendants-Appellees Roberto Alves, Psy.D., Defendant Kathleen Barrett, Psy.D.; Klaus Hartmann, M.D., Defendants-Appellees
    No. 16-1560
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 25, 2016
    Filed: January 19, 2017

      Michael David Gooch, Attorney, Omaha, NE, for Plaintiff-Appellant.
    Stephanie Anne Caldwell, Assistant Attorney General, Bijan Koohmaraie, Assistant Attorney General, Attorney General’s Office, Lincoln, NE, for Defendants-Ap-pellees Y. Scott Moore, MD, Mary Paine, PH.D, Lisa Woodward, PH.D, Ann Evelyn, MD, Dinesh Karumanchi, MD, Joanne Murney, PH.D, Sherri Browning, PH.D, Lorrene Jurgens, Nurse Practitioner, Mindy Abel, Psy D, Corrine McCoy, Program Manager, Jennifer Cimpl, Psy D, Shannon Black, Psy D, Zakaria Siddiqui, MD, Kathleen Barrett, Psy D, Klaus Hartmann, MD.
    David A. Lopez, Assistant Attorney General, Attorney General’s Office, Lincoln, NE, for Defendants-Appellees Y. Scott Moore, MD, Mary Paine, PH.D, Lisa Woodward, PH.D, Ann Evelyn, MD, Dinesh Karumanchi, MD, Rajeev Chaturvedi, MD, Joanne Murney, PH.D, Sherri Browning, PH.D, Lorrene Jurgens, Nurse Practitioner, Mindy Abel, Psy D, Corrine McCoy, Program Manager, Jennifer Cimpl, Psy D, Shannon Black, Psy D, Za-karia Siddiqui, MD, Kathleen Barrett, Psy D, Klaus Hartmann, MD.
    John Wiltse, University of Nebraska, Office of Vice President & General Counsel, Lincoln, NE, for Mario Scalora, PH.D.
    Jason W. Grams, Lamson & Dugan, Omaha, NE, for Defendants-Appellees Mario Scalora, PH.D, Mary Paine, PH.D, Ann Evelyn, MD, Jennifer Cimpl, Psy D, Kathleen Barrett, Psy D.

      William Maxwell Lamson, Jr., Lamson & Dugan, Omaha, NE,.for Defendants-Appellees Mario Scalora, PH.D, Mary Paine, PH.D, Ann Evelyn, MD, Dinesh Karumanchi, MD, Joanne Murney, PH.D, Sherri Browning, PH.D, Lorrene Jurgens, Nurse Practitioner, Mindy Abel, Psy D, Corrine McCoy, Program Manager, Jennifer Cimpl, Psy D, Shannon Black, Psy D, Zakaria Siddiqui, MD, Kathleen Barrett, Psy D, Klaus Hartmann, MD.
    Before RILEY, Chief Judge, BEAM and LOKEN, Circuit Judges.
   RILEY, Chief Judge.

John Maxwell Montin was committed to the Lincoln Regional Center (LRC) for a period of almost twenty years after a jury found him not responsible by reason of insanity. After his release, Montin brought suit in federal district court against various psychologists, psychiatrists, and other employees of the LRC, alleging defendants committed medical malpractice under Nebraska state law. Montin also alleged defendants violated his constitutional rights to be free from unnecessary confinement and free from retaliation for seeking access to courts. The district court dismissed Montin’s state law malpractice claim as barred by sovereign immunity, and dismissed Montin’s unnecessary confinement claim, ruling defendants were entitled to qualified immunity. Because we conclude Montin’s state law malpractice claim was improperly filed in federal court under the Nebraska State Tort Claims Act, and defendants are entitled to qualified immunity on Montin’s unnecessary confinement claim, we affirm.

I. BACKGROUND

A Nebraska state court committed Montin to the LRC on August 13, 1993, after a jury found Montin not responsible by reason of insanity on two felony charges. On July 16, 2013, almost twenty years after his initial commitment, that state court found Montin no longer dangerous to himself or others and ordered him unconditionally released. Defendants were all employees of the LRC during the time Montin was committed there and rendered professional healthcare services to Montin by conducting forensic evaluations, administering psychological testing, formulating and implementing treatment plans, and providing annual court reports.

In July 2014, Montin brought suit against defendants in federal court. Montin asserted, under 42 U.S.C. § 1983, defendants violated his federal civil right to be free from unnecessary confinement by creating unreliable evaluations and reports and failing to evaluate and treat Montin properly so that Montin continued to be unnecqssarily confined. Montin claimed this failure to evaluate and treat him adequately violated his fundamental right to freedom from physical restraint. Montin further asserted defendants violated his federal civil rights by retaliating against him for seeking relief in state and federal courts. Montin also alleged defendants failed to meet the standard of care in their respective disciplines under Nebraska state law by incorrectly labeling Montin as mentally ill and subjecting Montin to unnecessary and inappropriate treatment and confinement.

The district court granted defendants’ motion to dismiss the state law malpractice claim because the claim was barred by sovereign immunity and not waived by Nebraska under its State Tort Claims Act, Neb. Rev. Stat. § 81-8,209, et seq. The district court also granted defendants’ Fed. R. Civ. Pro. 12(c) motion for judgment on the pleadings and dismissed Mon-tin’s federal civil rights claims, concluding defendants were entitled to qualified immunity. Montin appeals the district court’s orders dismissing his claims, and we have jurisdiction to hear his appeal pursuant to 28 U.S.C. § 1291.

II. DISCUSSION

A. State Law Malpractice Claim

Montin alleged defendants committed medical malpractice under Nebraska state law. The district court dismissed this claim following defendants’ Rule 12(b)(1) and (6) motion to dismiss. We review such a dismissal de novo and interpret all factual allegations in the pleadings in the light most favorable to the nonmoving party. See Nelson v. Midland Credit Mgmt. Inc., 828 F.3d 749, 751 (8th Cir. 2016).

All defendants were state employees at the time of the events alleged in Montin’s amended complaint. Sovereign immunity bars any suits against states and their employees in their official capacities. See Alden v. Maine, 527 U.S. 706, 712-13, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Congress can abrogate sovereign immunity, like it has for claims filed pursuant to 42 U.S.C. § 1983, or states can waive sovereign immunity, but in the absence of such abrogation or waiver, sovereign immunity bars all suits. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

Nebraska has waived sovereign immunity for a limited set of claims. See Nebraska State Tort Claims Act (STCA), Neb. Rev. Stat. § 81-8,209, et seq. For suits not barred by sovereign immunity within Nebraska’s waiver, the STCA provides:

The district court, sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any suit or tort claim. Suits shall be brought in the district court of the county in which the act or omission complained of occurred or, if the act or omission occurred outside the boundaries of the State of Nebraska, in the district court for Lancaster County.

Id. § 81-8,214.

As an initial matter, Montin asserts the state law malpractice claim is against defendants in their individual capacities and is thus not barred by sovereign immunity. Montin’s amended complaint alleges all state claims are “against the listed defendants in their individual capacity only” and “Defendants [sic] actions and omissions were taken under color and authority of state law, but not in furtherance of the official policy, practice, and custom of the LRC.” (Emphasis added). All actions and omissions Montin pled—such as the failure to use appropriate forensic tools, the failure to score and interpret psychological tests correctly, and the submission of false or misleading reports—evidence defendants’ malpractice occurred within the scope of defendants’ employment as psychiatrists, psychologists, and employees of the LRC. Under Nebraska law, a state official acting within the scope of his or her employment at the time of an alleged tort must be sued in his or her official capacity, and the plaintiff must “comply with the requisites set out in the [STCA].” Bohl v. Buffalo Cty., 251 Neb. 492, 557 N.W.2d 668, 673 (1997). Though Montin’s amended complaint explicitly declares all claims are against defendants in their individual capacities, all the actions or omissions alleged occurred in the scope of defendants’ state employment, and we must treat the state law malpractice claim 'as if it is against defendants in their official capacities. See id.

Montin’s claim against defendants in their official capacities is barred unless Nebraska has waived sovereign immunity. See Seminole Tribe, 517 U.S. at 54-55, 116 S.Ct. 1114. If Nebraska has waived its immunity, Montin must bring the claim within the bounds set forth by the Nebraska STCA. See Beers v. Arkansas, 61 U.S. 527, 529, 20 How. 527, 15 L.Ed. 991 (1857) (“[A]s this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted.”).

If we assume Nebraska waived its sovereign immunity in this instance, any waiver of that immunity does not extend to actions brought in federal court. See Neb. Rev. Stat. § 81-8,214 (requiring all claims under Nebraska’s STCA be brought in state district court). State sovereign immunity bars actions in federal court regardless of the basis for otherwise appropriate subject matter jurisdiction. See Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 541-42, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002) (holding the Eleventh Amendment bars actions in federal court even where 28 U.S.C. § 1367, in general, authorizes supplemental jurisdiction). Montin did not comply with the requirements set forth by Nebraska’s STCA—“[s]uits shall be brought in the district court of the county in which the act or omission ... occurred,” Neb. Rev. Stat. § 81-8,214—when he filed his state law malpractice claim in federal court. The district court did not err in dismissing this claim without prejudice.

B. Unnecessary Confinement Civil Rights Claim

Defendants additionally argue they are entitled to qualified immunity from the claim that they unnecessarily confined Montin. The district court dismissed the unnecessary confinement civil rights claim following defendants’ motions for judgment on the pleadings. We review a grant of a Fed. R. Civ. P. 12(c) motion de novo. See Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006). A grant of such a motion is “appropriate only when there is no dispute as to any material facts and the moving party is entitled to judgment as a matter of law.” Id.

A state official is immune from liability unless he or she “violated a clearly established constitutional or statutory right of which a reasonable official would have known.” Carpenter v. Gage, 686 F.3d 644, 648 (8th Cir. 2012). When determining whether a public official is entitled to qualified immunity, we examine (1) whether the official violated the plaintiffs constitutional or statutory right, and (2) whether that right was clearly established at the time of the violation: See LaCross v. City of Duluth, 713 F.3d 1155, 1158 (8th Cir. 2013). “If the answer to either question is no, then the [state officials] are entitled to qualified immunity.” Keil v. Triveline, 661 F.3d 981, 985 (8th Cir. 2011).

Montin initially characterizes his unnecessary confinement as a due process violation. Then he contends the Eighth Amendment (through the Fourteenth Amendment) “deliberate indifference” standard and Nebraska’s statutory commitment procedures create applicable “fundamental civil rights.” The Supreme Court has established the right to due process prevents the state from “constitutionally confining] without more a non-dangerous individual who is capable of surviving safely in freedom by himself,” O’Connor v. Donaldson, 422 U.S. 563, 576, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), and that a “committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous.” Jones v. United States, 463 U.S. 354, 368, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983). To show an individual is liable for unconstitutional confinement, a plaintiff needs to show the person “ ‘knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of [the plaintiff], or ... took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to [the plaintiff].’ ” O’Connor, 422 U.S. at 577, 95 S.Ct. 2486 (quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975)).

Taking the facts in the light most favorable to the nonmoving party, it is clear Montin only alleged defendants’ actions were negligent. Montin alleged a failure “to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his or her profession.” It is well-established “[c]onduct that is merely negligent or grossly negligent does not implicate the protections of the Due Process Clause.” Jackson v. Ruckman, 756 F.3d 1060, 1067 (8th Cir. 2014); see also Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (“To state a claim based on inadequate medical treatment ... [t]he plaintiff must show more than negligence, more even than gross negligence.” (omission and alteration in original) (quoting Alberson v. Norris, 458 F.3d 762, 765 (8th Cir. 2006))). Though Montin alleged plaintiffs “were aware that their actions would result in the unnecessary and continued confinement of Montin ... and that such unnecessary confinement was a violation of Montin’s right to liberty,” Montin does not allege any facts to support this conclusion. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclu-sory statements, do not suffice.”). Instead, Montin alleged defendants “failed to determine that [Montin] was not mentally ill,” “persistently relied on a false factual belief that Montin had been found not responsible by reason of insanity of attempted murder,” and “relied upon inconsistent findings to manufacture or exaggerate a mental illness finding.” All of these actions are negligence or, at worst, gross negligence.

We note Montin’s claims are distinguishable from the right outlined in O’Connor because, there, the Supreme Court held there is “no constitutional basis for confining [mentally ill] persons involuntarily if they are dangerous to no one and can live safely in freedom.” O’Connor, 422 U.S. at 575, 95 S.Ct. 2486. The civil commitment procedures in O’Connor allowed hospital staff to release patients without any review by a court, and the defendant testified he had no knowledge the plaintiff had ever committed a dangerous act. See id. at 567-68, 95 S.Ct. 2486. That is materially different from the situation Montin alleged— defendants held a subjective belief Montin was mentally ill and dangerous to himself or others, as Montin himself alleged in his amended complaint. This belief—even if it is an erroneous belief predicated on defendants’ allegedly negligent treatment—rebuts any allegation defendants maliciously intended to deprive Montin of his constitutional rights. See id. at 577, 95 S.Ct. 2486.

Montin failed to allege action that violated his constitutional rights. The district court properly dismissed the unnecessary confinement claim.

C. Retaliation Civil Rights Claim

Montin also alleged defendants retaliated against him for seeking state and federal court review of his confinement. As defendants point out, “neither ‘retaliation’ nor any variant of that word appears anywhere in Montin’s brief.” Because “[cjlaims not raised in an opening brief are deemed waived,” Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008), and Montin failed to address the retaliation claim in his opening brief, Montin waived this issue. We thus affirm the district court’s dismissal of Montin’s retaliation claim.

III. CONCLUSION

We affirm the district court’s dismissal, without prejudice, of the state law tort claim as improperly filed in federal court under Nebraska’s STCA. In addition, we affirm the district court’s dismissal of the unnecessary confinement claim because defendants are entitled to qualified immunity.

      . The Honorable Lyle E, Strom, United States District Judge for the District of Nebraska.

      . The district court had jurisdiction over Montin’s state law malpractice claim under 28 U.S.C. § 1332(a)(1).

      . Defendant Mario Scalora asserts he is not a “person” who can be sued under 42 U.S.C. § 1983 because he is a state employee. The Supreme Court has previously held a state is not a "person” who can be sued under 42 U.S.C. § 1983, see Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), but the Court has explicitly rejected the position defendant Scalora sets forth: "The requirement of action under color of state law means that [a state official] may be liable for [actions taken within the scope of her employment] precisely because of her authority as [a state official]. We cannot accept the novel proposition that this same official authority insulates [state officials] from suit.” Hafer v. Melo, 502 U.S. 21, 27-28, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Therefore this argument has no merit.


source: Caselaw Access Project

license: Public Domain

text:
    MISSOURI BROADCASTERS ASSOCIATION; Meyer Farms, Inc.; Uncle D’s Sports Bar & Grill, LLC; Zimmer Radio of Mid-MO, Inc., Plaintiffs-Appellants v. Lafayette E. LACY, State Supervisor of Liquor Control, in his official capacity; Chris Koster, Attorney General of the State of Missouri, in his official capacity, Defendants-Appellees
    No. 16-2006
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 17, 2016
    Filed: January 19, 2017

      Michael Lee Nepple, Mark Sableman, Thompson & Coburn, Saint Louis, MO, for Plaintiffs-Appellants.

      Emily Ann Dodge, Joanna L.W. Tra-chtenberg, Assistant Attorney General, Attorney General’s Office, Jefferson City, MO, for Defendants-Appellees.
    Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.
   RILEY, Chief Judge.

The State of Missouri enacted a statute and two regulations detailing the information alcohol manufacturers, wholesalers, distributers, and retailers could include in their advertisements. See Mo, Rev. Stat. § 311.070.4(10); Mo. Code Regs. Ann. tit. 11, § 70-2.240(5)(G), (I). Plaintiffs filed suit alleging the statute and regulations violated their freedom of speech under the First Amendment of the United States Constitution. Having appellate jurisdiction under 28 U.S.C. § 1291, we reverse the district court’s grant of defendants’ motion to dismiss. Plaintiffs’ amended complaint plausibly stated a claim upon which relief could be granted.

I. BACKGROUND

Missouri enacted two regulations prohibiting alcohol manufacturers, wholesalers, distributers, and retailers from advertising certain information under specific circumstances. Section 70-2.240(5)(G) (Discount Advertising Prohibition Regulation) prohibits alcohol retailers from advertising discounted prices outside their establishment. According to plaintiffs, the Discount Advertising Prohibition Regulation prohibits retailers from advertising information such as “a two-for-one special on beer at the local grocery store, a going-out-of-business sale at a specialty wine shop, or a coupon for one free drink with the purchase of an entree at a neighborhood bar and grill.” According to the interpretation put forth by defendants, the Discount Advertising Prohibition Regulation does permit advertising sales using generic descriptions (e.g., “Happy Hour” and “Ladies Night”) and advertising all sales, promotions, and discounts within the retail establishment itself. In addition, § 70-2.240(5)(I) (Below Cost Advertising Prohibition Regulation) prohibits alcohol retailers from advertising prices below the retailers’ actual cost.

Missouri also enacted a statute (Single Retailer Advertising Prohibition Statute) specifying how distillers and wholesalers may advertise retailers selling their products. See Mo. Rev. Stat. § 311.070.4(10). The Single Retailer Advertising Prohibition Statute requires producers and wholesalers, if they choose to list any retailer in an advertisement, to exclude the retail price of the product from the advertisements, list multiple retail businesses not affiliated with one another, and make the listing inconspicuous. See id.

Plaintiffs—a non-profit corporation promoting the interests and welfare of the broadcasting industry, a corporation operating radio stations, a winery, and a commercial food and drink establishment licensed to sell alcohol—filed suit against Missouri’s state supervisor of liquor control and state attorney general. According to the amended complaint, the three challenged provisions are facially unconstitutional under the First.Amendment. Plaintiffs asserted the challenged provisions prohibit truthful, non-misleading commercial speech and restrict the free flow of truthful information to potential customers. Plaintiffs also claimed Missouri inconsistently enforces the provisions, allowing some prohibited advertisements to go unpunished, and the Single Retailer Advertising Prohibition Statute unconstitutionally compels speech. Under plaintiffs’ theory, “[d]efendants cannot show that the [challenged provisions] directly advance a substantial 'governmental interest, nor that they regulate no more extensively than necessary to serve that substantial interest.”

Defendants moved to dismiss the amended complaint, which the district court initially denied. Plaintiffs then moved for summary judgment. The district court denied plaintiffs’ motion for summary judgment and, in the same order denying summary judgment, stated: “[G]iven that defendants raised these same issues previously in their motion to dismiss, the Court finds that reconsideration of the Court’s previous order denying the motion to dismiss is warranted, and the Court sua sponte grants defendants’ motion to dismiss.” The district court did not provide any further discussion of how the amended complaint failed to state a claim. Plaintiffs appeal the district court’s dismissal, and we reverse.

II. DISCUSSION

We review a district court’s grant of a Rule 12(b)(6) motion to dismiss de novo. See Sabri v. Whittier All., 833 F.3d 995, 998 (8th Cir. 2016). “[W]e accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party.” McDonough v. Ankoa County, 799 F.3d 931, 945 (8th Cir. 2015). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’ ” and plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To state a claim that a statute is facially invalid under the Free Speech Clause of the First Amendment, plaintiffs must show “ ‘that no set of circumstances exist under which [the statute] would be valid,’” United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)), or that “a ‘substantial number’ of [the statute’s] applications are unconstitutional, ‘judged in relation to the statute’s plainly legitimate sweep,’ ” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (quoting New York v. Ferber, 458 U.S. 747, 770-71, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)).

The parties agree the challenged provisions regulate commercial speech. The First Amendment “accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” Cent. Hudson Gas v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 563, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). In Central Hudson, the Supreme Court identified four considerations to determine the constitutionality of laws burdening commercial speech: “(1) whether the commercial speech at issue concerns unlawful activity or is misleading; (2) whether the governmental interest is substantial; (3) whether the challenged regulation directly advances the government’s asserted interest; and (4) whether the regulation is no more extensive than necessary to further the government’s interest.” 1-800-411-PAIN Referral Serv., LLC v. Otto, 744 F.3d 1045, 1055 (8th Cir. 2014).

At this stage, defendants accept the provisions prohibit truthful and non-misleading speech and plaintiffs concede the asserted state interest of promoting responsible drinking is substantial. See Mo. Rev. Stat. § 811.015. Thus, the only two points at issue are whether plaintiffs’ amended complaint included sufficient factual matter to state a claim that (1) the provisions do not directly advance the substantial interests or (2) the provisions are more extensive than necessary. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; 1-800-411-PAIN Referral Serv,, 744 F.3d at 1055. We hold plaintiffs pled more than sufficient facts to state a claim plausible on its face.

First, the amended complaint included sufficient allegations that the challenged provisions did not directly advance the substantial interest of promoting responsible drinking. This consideration “concerns the relationship between the harm that underlies the State’s interest and the means identified by the State to advance that interest.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001). Defendants “ ‘must demonstrate that the harms [they] recite[] are real and that [defendants’] restriction will in fact alleviate them to a material degree.’” Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 188, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999) (quoting Edenfield v. Fane, 507 U.S. 761, 771, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993)).

Defendants argue there is a “commonsense link” between advertising and increasing demand for a product. It is true that it is “a matter of ‘common sense’ that a restriction on the advertising of a product characteristic will decrease the extent to which consumers select a product on the basis of that trait.” Rubin v. Coors Brewing Co., 514 U.S. 476, 487, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995). But the common sense link between advertising promotions and increasing demand for alcohol does not demonstrate the challenged restrictions directly advance the interest in promoting responsible drinking. A theoretical increase in demand for alcohol based on a lower price does not necessarily mean any consumption of that alcohol is irresponsible.

The allegations in plaintiffs’ amended complaint make clear the challenged provisions do little, if anything, to advance the asserted state interest. The multiple inconsistencies within the regulations poke obvious holes in any potential advancement of the interest in promoting responsible drinking, to the point the regulations do not advance the interest at all. See hi at 488, 115 S.Ct. 1585 (reasoning if a regulatory scheme is irrational, such as banning labeling alcohol content on beer but allowing it on wine and liquor labels, the scheme does not directly advance the asserted interest). As plaintiffs alleged in their amended complaint, the Discount Advertising Prohibition Regulation and the Below Cost. Advertising Prohibition Regulation do not prohibit retailers from offering discounted priees or advertising those discounts within the retail establishment. See Mo. Code Regs. Ann. tit. 11, § 70-2.240(5)(G), (I). Defendants assert the challenged regulations prevent retailers from luring vulnerable consumers to their places of business, yet defendants apparently are not as concerned with retailers baiting consumers to drink excessively once they arrive.

Generic descriptions of promotions (e.g., happy hours and ladies nights) could also encourage irresponsible drinking, but the Discount Advertising Prohibition Regulation does not prohibit these statements from advertisements. See id. § 70-2.240(5)(G). Perhaps the most glaring inconsistency is apparent from the text of the regulation. This provision explicitly exempts manufacturers of intoxicating liquor other than beer and wine from its ban on advertising rebate coupons. See id. This inconsistency allows certain speakers to make comments that, under Missouri’s Liquor Control Law, supposedly encourage irresponsible drinking. See Mo. Rev. Stat. § 311.015. The messages defendants seek to prohibit are allowed in certain advertisements, yet only for a select group of alcoholic beverages. See Mo. Code Regs. Ann. tit. 11, § 70-2.240(5)(G). Making all reasonable inferences in favor of plaintiffs, consumers are still exposed to advertisements of sales, discounts, and promotions of the selected alcohol products, and, thus, the regulations do not uniformly promote the asserted state interest. See Rubin, 514 U.S. at 488, 115 S.Ct. 1585 (“The failure to prohibit the disclosure of alcohol content in advertising, which would seem to constitute a more influential weapon in any strength war than labels, makes no rational sense if the Government’s true aim is to suppress strength wars.”). Like the statute at issue in Rubin, if the true aim of the regulations is to promote responsible drinking, the inconsistencies in the prohibitions on advertisements of promotions and sales of alcohol “make[ ] no rational sense.” Id.

Plaintiffs also pled sufficient facts to suggest the Single Retailer Advertising Prohibition Statute does not directly advance the asserted state interests of promoting responsible drinking and maintaining an orderly marketplace. Missouri’s Liquor Control Law establishes restrictions on retailers, wholesalers, and producers exchanging money to promote the responsible consumption of alcohol and other state policy interests. The challenged statute is an exception to those restrictions. See Mo. Rev. Stat. § 311.070.1 (“Distillers, wholesalers, winemakers, brewers or their employees, officers or agents shall not, except as provided in this section, directly or indirectly, have any financial interest in the retail business for sale of intoxicating liquors,”). The statute does nothing to further the interest in maintaining an orderly marketplace and actually weakens the impact of the overall statutory scheme because this statute is an exemption to the restrictions preventing retailers, wholesalers, and producers from becoming financially entangled. See Mo. Rev. Stat. §§ 311.070.1, 311.070.4(10). The amended complaint includes sufficient information, at the least, to support a claim that the challenged provisions do not directly advance the stated interests.

Second, the amended complaint included more than sufficient information to plead the challenged restrictions are more extensive than necessary. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The fourth prong of Central Hudson is not satisfied if there are alternatives to the regulations that directly advance the asserted interest in a manner less intrusive to plaintiffs’ First Amendment rights. See Rubin, 514 U.S. at 490-91, 115 S.Ct. 1585. “[I]f the Government could achieve its interest in a manner that does not restrict speech, or that restricts less speech, the Government must do so.” Thompson v. W. States Med. Ctr., 535 U.S. 357, 371, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002). However, defendants are not required to show “the manner of restriction is absolutely the least severe that will achieve the desired end.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989).

Taking the facts in the light most favorable to plaintiffs, we find it clear there are reasonable alternatives to the challenged restrictions Missouri could have enacted that are less intrusive to plaintiffs’ First Amendment rights. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) (suggesting limiting alcohol purchases' by heavily taxing and/or regulating alcohol or developing educational campaigns about the effects of alcohol as alternatives to Rhode Island’s blanket ban on advertising the price of alcohol).

Finally, plaintiffs argue the Single Retailer Advertising Statute unconstitutionally compels speech and association in that producers and wholesalers must list more than one retailer on an advertisement if they choose to list any. See Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (“[Freedom of thought and expression ‘includes both the right to speak freely and the right to refrain from speaking at all.’ ” (quoting Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977))); Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (“Freedom of association therefore plainly presupposes a freedom not to associate.”); Wooley, 430 U.S. at 717, 97 S.Ct. 1428 (holding a state cannot compel individuals to drive a car with a license plate bearing the slogan “Live Free or Die”). The statute is conditional in that it only impacts speech if producers and wholesalers choose to include the name and address of a retailer in an advertisement. See Mo. Rey. Stat. § 311.070.4. But if a producer or wholesaler does choose to include such information, it is compelled to (1) associate with multiple retailers, and (2) include multiple retailers’ information on the advertisement. See id. As plaintiffs pled in their amended complaint, this conceivably is compelling speech and association in violation of the First Amendment.

Plaintiffs, at a minimum, pled sufficient facts to survive a Rule 12(b)(6) motion to dismiss. See Iqbal, 556 U.S. at 678; 129 S.Ct. 1937. On its face, the amended complaint plausibly demonstrates the challenged provisions do not directly advance the government’s asserted substantial interest, are more extensive than necessary, and unconstitutionally compel speech and association..

III. CONCLUSION

We reverse the Rule 12(b)(6) dismissal.

      . The Discount Advertising Prohibition Regulation reads:
      No advertisement of intoxicating liquor or nonintoxicating beer shall contain: ... [a]ny statement offering any coupon, premium, prize, rebate, sales price below cost or discount as an inducement to purchase intoxicating liquor or nonintoxicating beer except, manufacturers of intoxicating liquor other than beer or wine shall be permitted to offer and advertise consumer cash rebate coupons and all manufacturers of intoxicating liquor may offer and advertise coupons for nonalcoholic merchandise.
      Mo. Code Regs. Ann, tit. 11, § 70-2.240(5)(G).

      . The Below Cost Advertising Prohibition reads: "No advertisement of intoxicating liquor or nonintoxicating beer shall contain: ... [a] price that is below the retailer’s actual cost.” Id.

      .Section 311.070.4(10) reads:
      The distiller, wholesaler, winemaker or brewer may in an advertisement list the names and addresses of two or more unaffiliated retail businesses selling its product if all of the following requirements are met:
      (a) The advertisement shall not contain the retail price of the product;
      (b) The listing of the retail businesses shall be the only reference to -such retail businesses in the advertisement;
      (c) The listing of the retail businesses shall be relatively inconspicuous in relation to the advertisement as a whole; and
      (d) The advertisement shall not refer only to one retail business or only to a retail business controlled directly or indirectly by the same retail business.

      . Plaintiffs also appeal the district court’s denial of their motion for summary judgment. "Ordinarily, we have no jurisdiction of an appeal challenging the denial of a motion for summary judgment. Such orders are not final orders in the traditional sense.” Miller v. Schoenen, 75 F.3d 1305, 1308 (8th Cir. 1996) (citation omitted). Plaintiffs assert we do have jurisdiction over a denial of summary judgment if the issues are "inextricably intertwined” with an order that is properly before us or we are reviewing the grant of a cross-motion for summary judgment. We do not have pendent jurisdiction in this case because pendent jurisdiction only applies where reviewing a final order would necessarily impact a district court’s interlocutory order in the same case. See Kincade v. City of Blue Springs, 64 F.3d 389, 394 (8th Cir. 1995) (" ‘[Pjendent appellate jurisdiction might still be appropriate where the otherwise nonap-pealable decision is inextricably intertwined with the appealable decision, or where review of the nonappealable decision is necessary to ensure meaningful review of the appealable one.’ ” (quoting Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995))). Here, our review of the grant of the motion to dismiss does not impact the district court's denial of summary judgment. This is also a different situation than reviewing a denial of summary judgment when a grant of a cross-motion for summary judgment is properly before us, because the instant appeal is one of a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). See United Fire & Cas. Co. v. Titan Contractors Serv., Inc., 751 F.3d 880, 886-87 (8th Cir. 2014) (reviewing a denial of a motion for summary judgment where the appellant appealed both the denial of its motion for summitry judgment and the grant of a cross-motion for summary judgment in favor of the appellee).

      . Plaintiffs argue the Supreme Court defined a new standard for commercial speech in Sorrell v. IMS Health, Inc., 564 U.S. 552, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). In Sor-rell, the Supreme Court reasoned the statute at issue “is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted.” Id. at 565, 131 S.Ct. 2653. Plaintiffs claim the “heightened” scrutiny referenced in Sorrell is strict scrutiny. But we do not need to address plaintiffs' argument here as we already rejected this argument in 1-800-411-PAIN Referral Service, LLC v. Otto, 744 F.3d 1045, 1055 (8th Cir. 2014). Though Sorrell does describe the required scrutiny as "heightened,” the Supreme Court still went on to apply the four-prong standard of Central Hudson: "The upshot [of Sorrell] is that when a court determines commercial speech restrictions are content- or speaker-based, it should then assess their constitutionality under Central Hudson.” Id. Thus, because the challenged provisions here are content- and speaker-based commercial speech restrictions, we evaluate them using the Central Hudson factors.

      . The interest in Missouri’s Liquor Control Law, the greater statutory scheme within which the challenged restrictions are situated, is “to promote responsible consumption, combat illegal underage drinking, and ... maintain[ ] an orderly marketplace.” Mo. Rev. Stat. § 311.015. Plaintiffs only concede the asserted state interest in promoting responsible drinking is spbstantial. Even if we assume all three of the asserted state interests are substantial, the amended complaint still stated a claim upon which relief can be granted. The challenged restrictions are not targeted at underage drinkers, so they do not directly advance the interest in combating illegal underage drinking. Only the Single Retailer Advertising Prohibition Statute is related to maintaining an orderly marketplace, so we do discuss that interest below.

      . Plaintiffs argue maintaining an orderly marketplace is not a substantial state interest. Because it is clear from the facts pled in the complaint the Single Retailer Advertising Prohibition Statute does not directly advance any of the asserted state interests, we do not need to address whether this “orderly marketplace” state interest is substantial.


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Tony WILLIAMS, Defendant-Appellee.
    No. 15-10008
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted January 7, 2016, San Francisco, California
    Filed September 20, 2016
    Amended January 11, 2017

      Adam M. Flake (argued), Assistant United States Attorney; Elizabeth 0. White, Appellate Chief; Daniel G. Bogden, United States Attorney; United States Attorney’s Office, Las Vegas, Nevada; for Plaintiff-Appellant.
    Amy B. Cleary (argued) and Eric J. Choi, Assistant Federal Public Defenders; Rene L. Vallardes, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appel-lee.
    Before: J. CLIFFORD WALLACE and ALEX KOZINSKI, Circuit Judges and ROBERT H. WHALEY, Senior District Judge.

       The Honorable Robert H. Whaley, Senior District Judge for the U.S. District Court for the Eastern District of Washington, sitting by designation.

   ORDER

The opinion filed on September 20, 2016, and appealing at 837 F.3d 1016, is hereby amended. An amended opinion is filed concurrently with this order. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing and rehearing en banc is DENIED.

No further petitions for en banc or panel rehearing shall be permitted.

OPINION

WALLACE, Circuit Judge:

The government appeals from the district court’s order granting Williams’s motion to suppress evidence of the crack cocaine in his pockets and the firearm in his vehicle. We have jurisdiction pursuant to 18 U.S.C. § 3731, and we reverse.

I.

We review de novo an order granting a motion to suppress. See United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc). “A determination whether there was reasonable suspicion to support an investigatory ‘stop and frisk’ is a mixed question of law and fact, also reviewed de novo.” United States v, Burkett, 612 F.3d 1103, 1106 (9th Cir. 2010). The district court’s factual findings are reviewed for clear error. Crawford, 372 F.3d at 1053 (citing United States v. Hammett, 236 F.3d 1054, 1057-58 (9th Cir. 2001)).

II.

At 4:40 a.m., a person who identified himself as Tony Jones telephoned a Las Vegas police hotline to report an adult, black male sleeping inside a grey Ford Five Hundred car. Jones reported that the man was “known to sell drugs in the area,” did not live in the adjacent apartment complex, and Jones expressed that he “just wanted the person moved out of the area.” Jones provided the operator with his phone number and address.

The Las Vegas Metropolitan Police Department (Metro) dispatched two officers on duty in the reported area, Alvin Hubbard and Thomas Keller. Hubbard and Keller were on patrol in a marked Metro patrol car, with Hubbard driving. When Hubbard and Keller arrived at the apartment complex the caller had identified, they saw a grey Ford Five Hundred car in the parking lot. The Ford had temporary license plates, preventing the officers from securing an initial vehicle check.

The Ford was flanked by a car on either side and a parking curb in front. Hubbard stopped the patrol car behind the grey Ford, blocking its exit. The officers turned on their overhead lights, “take-down” lights, and spotlights, shining them into the Ford’s windows. After the officers turned on their lights, a black male, later identified as defendant Tony Williams, sat up in the driver’s seat inside the Ford. Williams looked to his left and right, then started his car. Williams momentarily placed the car in reverse and then quickly shifted the car back into park.

By the time Williams started the car, both officers were approaching the Ford on foot. Hubbard approached the ear on the driver’s side, while Keller approached on the passenger’s side with his handgun drawn. Hubbard yelled at Williams through the Ford’s closed windows to turn off the engine and exit the vehicle.

Williams complied and got out of the car. Hubbard continued walking towards Williams, until he was within three to four feet of him. Williams, without saying a word, ran. He ran toward the front of the Ford and around the other cars in the parking lot.

Keller ran after Williams on foot, and Hubbard joined the pursuit in the patrol car. The pursuit'lasted approximately one minute. Two or three buildings away from the parking lot, Williams fell and did not get up. He remained on the ground where he had fallen with his hands out. Keller approached with his gun drawn and stood over Williams. Hubbard arrived shortly after in the patrol car, observed Williams prone on the ground, performed a protective sweep of his backside, and handcuffed him.

Hubbard then did a pat down of Williams’s backside. Hubbard then helped Williams from the ground and brought him to the front of the patrol vehicle. At that point, Hubbard did a pat down of Williams’s front. He proceeded to reach into all of Williams’s pants’ pockets. In the right front pocket, Hubbard found a plastic bag containing crack cocaine. In the left front pocket, Hubbard found $1,165.00.

Hubbard placed Williams in the back of the patrol car and drove back to the parking lot where the Ford was still parked. With Williams handcuffed in the back of the patrol car, Hubbard began searching the Ford. Hubbard discovered that the Ford was not registered to Williams but rather to a company named Rodo. The officers never telephoned the company, nor made a call to Metro dispatch to have the vehicle towed or impounded.

As Hubbard searched the car, he found pots, pans, food, and utensils. In the back seat, he found a purse; when he unzipped it, he found a gun inside. Hubbard placed the purse on the hood of the patrol car and contacted his sergeant, who called for a detective from the firearms unit.

On October 8, 2014, a federal grand jury in Nevada returned an indictment against Williams for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a). The grand jury returned a superseding indictment on December 10, 2014, adding charges for violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) by possessing a controlled substance with intent to distribute, and 18 U.S.C. § 924(c)(1)(A)© by possessing a firearm in furtherance of a drug trafficking offense. Williams moved to suppress the evidence of the crack cocaine and handgun found during the search of Williams and the Ford. The district court granted the motion, and the government now appeals.

III.

The government challenges the district court’s suppression of the evidence on the grounds that (1) the officers had reasonable suspicion to conduct an investigatory stop; (2) after the initial stop, the officers developed probable cause to arrest Williams and perform a search incident to a lawful arrest; and (3) the officers had probable cause to search Williams’s vehicle.

A.

The government first argues that the district court erred in concluding that the officers lacked reasonable suspicion to conduct an investigatory stop. The Fourth Amendment permits brief investigative stops when a law enforcement officer has reasonable suspicion that the person stopped is engaged in criminal activity. Navarette v. California, — U.S.-, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014). Reasonable suspicion requires more than a mere “hunch” of wrongdoing, but the degree of proof needed is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less demanding than that for probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citations and internal quotation marks omitted). Whether reasonable suspicion exists depends upon the totality of the circumstances surrounding the stop, including “both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); see also Navarette, 134 S.Ct. at 1687.

In assessing the role of telephone tips in investigative stops, the Supreme Court and our court have focused on whether the tips have “sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.” White, 496 U.S. at 327, 110 S.Ct. 2412; United States v. Edwards, 761 F.3d 977, 983 (9th Cir. 2014). In White, an anonymous tipster telephoned police to report that the defendant would be leaving a particular apartment at a particular time in a particular vehicle, and that the defendant would be heading towards a specific motel in possession of cocaine. 496 U.S. at 327, 110 S.Ct. 2412. The police went to the identified apartment, saw a vehicle matching the description, and pursued the vehicle as it made its way to the specified motel. Id. Officers stopped the vehicle just short of the motel and discovered marijuana and cocaine inside. Id. The Court held that the anonymous tip “exhibited sufficient indicia of reliability to justify the investigatory stop” because the anonymous tipster predicted the defendant's future behavior and the officers corroborated the tip through independent police work. Id. at 330-32, 110 S.Ct. 2412.

The Supreme Court further clarified the factors used in assessing the reliability of tips in Navarette. There, an unidentified 911 caller reported that a truck ran her off the road. 134 S.Ct. at 1686-87. A police officer responded to the 911 broadcast, located the truck, and pulled it over. Id. at 1687. Officers smelled marijuana when they approached the truck and a subsequent search uncovered 30 pounds of marijuana. Id. The Court held that the 911 call had sufficient indicia of reliability to provide the officers with reasonable suspicion that the truck ran the caller off the roadway, reasoning that (1) the tip indicated that the caller had eyewitness knowledge of the incident, “lend[ing] significant support to the tip’s reliability,” id. at 1689; (2) police corroborated the tip by verifying the truck’s location near where the caller stated the incident occurred, id.; (3) the caller used the 911 system, which identifies and traces callers, thus increasing the tip’s veracity by “provid[ing] some safeguards against making false reports with immunity,” id. at 1689-90; and (4) the caller reported a specific and potentially ongoing crime. Id. at 1690.

Applying- the principles articulated in White and Navarette, we hold that officers Hubbard and Keller had reasonable suspicion to stop Williams based on the information they possessed and the tip’s reliability. First, the tipster, Tony Jones, telephoned a police hotline and provided his name, address, and phone number. Second, the officers verified the information Jones relayed through independent observation. Jones provided officers with Williams’s location and the make of Williams’s car. When the officers arrived at the specified parking lot, they found the reported grey Ford Five Hundred with a man inside. Third, Jones provided specific criminal allegations. Jones reported that Williams was sleeping in a car in an adjacent apartment complex, even though Williams did not live there. Jones also reported that Williams was known to sell drugs in the area.

Fourth, the officers’ suspicion was increased when they witnessed Williams’s behavior upon arriving at the parking lot. When the officers shone the light on Williams’s car, he popped up in the driver’s seat and immediately looked left and right. Williams then proceeded to place the car in reverse. The officers testified that this conduct was consistent with someone who intended to flee the scene. Lastly, the incident occurred in a high-crime area around 5:00 a.m. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (Although “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime,” police can consider the “relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation”). The officers testified that they were aware of gang activities in the area, and often responded to domestic violence and “party calls” there.

Williams’s reliance on Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), is unpersuasive. In J.L., an anonymous caller told police “that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Id. at 268, 120 S.Ct. 1375. Police went to the bus stop, frisked a young black male in plaid, and seized a gun from his pocket. Id. The Court held that the police lacked reasonable suspicion to stop the suspect, reasoning that the call “provided no predictive information,” leaving the “police without means to test the informant’s knowledge or credibility.” Id. at 271, 120 S.Ct. 1375. The tip also failed to allege more than “[a]n accurate description of a subject’s readily observable location and appearance,” and did not show how the tipster had knowledge of the alleged “concealed criminal activity.” Id. at 272, 120 S.Ct. 1375.

By contrast, the tip in this case not only provided an accurate description of the suspect, but it also alleged ongoing, observable criminal activity—a potential trespass. Jones identified Williams’s location, car, and appearance and also stated that Williams was sleeping in a car in an adjacent apartment building’s lot, even though Williams did not live there. Unlike the concealed criminal activity alleged in J.L., Jones provided predictive information concerning Williams’s activity, which the officers were able to immediately verify when they arrived.

Even if there were a question as to whether the tip, on its own, provided the officers with the requisite reasonable suspicion to detain Williams, the tip was certainly sufficient to justify further investigation. After receiving the information provided by the tipster, the officers would have been delinquent had they not driven over to the parking lot to investigate the situation. The officers testified at the evi-dentiary hearing that the reported conduct, if confirmed, would be indicative of a potential DUI, as well as loitering or trespassing. When they arrived, the officers faced a potentially dangerous situation. They encountered a possible drug dealer, sitting in a car with temporary license plates, in a dark and deserted parking lot, in a high-crime area, during the early hours of the morning. Accordingly, the officers acted reasonably when they blocked in the driver with their police car, turned on their police lights, and one of the officers drew his gun. These actions led to Williams’s subsequent suspicious conduct, which included placing his car in reverse, ignoring the officers’ commands, and ultimately darting away on foot.

Based on the totality of the circumstances surrounding the stop, the officers had reasonable suspicion to briefly detain Williams, and the district court erred in concluding otherwise.

B.

1.

The government contends that the officers had probable cause to arrest Williams because he obstructed the officers in their attempt to enforce Nevada Revised Statute (N.R.S.) § 171.123. Section 171.123 dictates that police officers may detain a suspect whom the officers have reasonable suspicion has committed, is committing, or is about to commit a crime, in order to obtain that individual’s identity. When the suspect fails to identify himself after officers have detained him under reasonable suspicion, the suspect violates N.R.S. § 199.280 (Nevada’s obstruction statute), which makes it unlawful for a person to “willfully resist[ ], delay[ ] or obstruct ] a public officer in discharging or attempting to discharge any legal duty of his or her office.”

As explained above, the officers had reasonable suspicion to conduct an investigatory stop: a caller reported that Williams was sleeping in his car outside of an apartment building that Williams did not live in; the caller reported that he knew Williams to be a drug dealer; Williams acted as if he intended to flee when officers approached him; and the conduct occurred in a .high-crime area early in the morning. Accordingly, the officers had reasonable suspicion to stop Williams and, pursuant to section 171.123, could approach Williams to ascertain his identity. Instead of speaking with the officers, Williams immediately ran, preventing the officers from discharging their duty under section 171.123 and, accordingly, violating Nevada’s obstruction statute.

• In holding that the officers lacked probable cause to arrest Williams, the district court concluded that simply fleeing from an officer, while it establishes reasonable suspicion, does not establish probable cause that the individual violated Nevada’s obstruction statute, See United States v. Smith, 633 F.3d 889, 893 (9th Cir. 2011) (“[A] person’s ‘headlong,’ ‘unprovoked’ flight upon seeing a police officer, when it occurs in a high-crime neighborhood, is sufficient to establish reasonable suspicion that the' person is involved in criminal activity.”) (quoting Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). The district court, however, ignored the interplay between section 171.123 and Nevada’s obstruction statute. The officers did not have probable cause to arrest Williams on the basis of the obstruction statute alone; rather, the officers had probable cause to effectuate an arrest because Williams obstructed officers in their efforts to enforce section 171.123.

Williams nevertheless contends that the government waived its argument that the officers had probable cause to arrest him for violating N.R.S. § 171.123. Before the district court, the government argued that the officers had probable cause to arrest Williams; however, the government failed to specify that the officers had probable cause to arrest Williams because he violated N.R.S. § 171.123, and the district court never addressed that statute.

Our court applies “a ‘general rule’ against entertaining arguments on appeal that were not presented or developed before the district court.” Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998) (citation omitted). However, we have made it clear that “it is claims that are deemed waived or forfeited, not arguments.” United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004); see Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). Specifically, “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.” Yee v. City of Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992).

Our court’s opinion in United States v. Guzman-Padilla, 573 F.3d 865 (9th Cir. 2009), is instructive. In Guzman-Padilla, the defendant moved to suppress evidence of 479.95 kilograms of marijuana that border patrol agents seized when the defendant crossed the Mexican-American border. Id. at 874-76. Before the district court, the government argued generally that the agents’ seizure of the defendant’s vehicle did not require probable cause. Id. at 873, 877 n.l. On appeal, the government argued more specifically that the agents did not need probable cause to seize the defendant’s vehicle because of the border search exception to the Fourth Amendment. Id. at 874, 877 n.l. Our court held that, because the government had advanced its probable cause argument before the district court; it was not circumscribed from advancing a more specific argument in support of its theory. Id. at 877 n.l.

The situation in our present case is nearly identical to Guzman-Padilla. Before the district court, the government argued generally that the officers had probable cause to arrest Williams because he ran. On appeal, the government argued more specifically that the officers had probable cause to arrest Williams for violating N.R.S. § 171.123 when he ran. The government, having advanced its probable cause theory before the district court, is able to make a more precise argument on appeal as to why the officers had probable cause.

2.

Because the officers lawfully arrested Williams, the government contends that the officers conducted a valid search incident to arrest when they searched Williams’s pockets and found crack cocaine. The Supreme Court and our court have already held that a search incident to a lawful arrest is not limited to simple pat-down of the suspect and can “involve a relatively extensive exploration” of the areas within the arrestee’s immediate control. United States v. Robinson, 414 U.S. 218, 227, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (internal quotation marks omitted); see also United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir. 2010). Those areas include the arrestee’s person and the inside pockets of the arrestee’s clothing. See Robinson, 414 U.S. at 224-26, 94 S.Ct. 467. Here, the officers had probable cause to arrest Williams and performed a valid search incident to arrest of Williams’s person—which lawfully extended to the insides of Williams’s pockets—after apprehending Williams for obstruction.

C.

Lastly, the government contends that the officers lawfully searched Williams’s vehicle because they had probable cause to believe the Ford contained contraband or evidence of drug dealing.

Officers may conduct a warrant-less search of an automobile, including containers within it, when they have probable cause to believe that the vehicle contains contraband or evidence of criminal activity. United States v. Ewing, 638 F.3d 1226, 1231 (9th Cir. 2011); see Wyoming v. Houghton, 626 U.S. 295, 302, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (“When there is probable cause to search for contraband in a car, it is reasonable for police officers ... to examine packages and containers without a showing of individualized probable cause for each one”). Probable cause exists when, based on the totality of the circumstances, there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Under the totality of the circumstances, the officers had probable cause to believe that evidence of contraband would be found in Williams’s vehicle. Before arriving on the scene, the officers received information from Metro dispatch that Williams was sleeping in his car in an unauthorized location and was known to deal drugs in the area. Moreover, the officers approached the vehicle early in the morning—around 5:00 a.m.—and were in a high-crime neighborhood. When officers approached the vehicle, Williams popped up, looked around, and temporarily placed the car in reverse. After Williams got out of the vehicle, he immediately fled the scene. Officers caught Williams after he tripped and fell to the ground. In searching Williams’s person after effectuating a lawful arrest, Hubbard found individually wrapped crack cocaine in plastic containers. He also found $1,165.00 in cash in small denominations. Based on the information the officers had prior to making the arrest—and the contraband they found during the arrest—the officers had probable cause to believe that the vehicle which Williams had only just fled contained further contraband or other evidence of drug dealing.

Williams argues that because the officers arrested him for “obstructing by running,” there is no conceivable evidence related to the obstruction charge that the officers could find in the vehicle. Williams ignores the evidence which emerged as soon as the officers conducted a lawful search incident to arrest: the individually wrapped packages of crack cocaine in his pockets. The crack cocaine provided the officers with the probable cause necessary to arrest Williams for drug possession and drug dealing, two crimes in which a vehicle could reasonably contain further evidence.

Williams also contends that the government waived its right to argue on appeal that the officers had probable cause to search his vehicle because it failed to raise the argument with the district court. Williams’s argument fails: the district court considered whether the officers had probable cause to conduct a warrantless search of Williams’s vehicle and held that the police had none. Our court does not deem an issue waived “if the district court actually considered it.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1054 (9th Cir. 2007) (citing Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 n.l1 (9th Cir. 1991)).

IV.

In conclusion, the district court erred in concluding that the officers lacked reasonable suspicion to detain Williams; lacked probable cause to arrest Williams; unlawfully performed a search incident to arrest; and lacked probable cause to conduct a warrantless search of Williams vehicle. We therefore reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

      , N.R.S. § 171.123(1) and (3) provide: "Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.... The officer may detain the person pursuant to this section only to ascertain the person's identity and the suspicious circumstances surrounding the person’s presence. ...”

      . The government also argues that the officers legally searched the vehicle as a search incident to a lawful arrest. Because we hold that the officers had probable cause to search the vehicle, we do not address the government’s alternative argument.