NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
APRIL HENRIETTA RIVERA, No. 18-16468
Plaintiff-Appellant, D.C. No. 4:16-cv-00164-CKJ
v.
MEMORANDUM*
TOWN OF PATAGONIA, an Arizona
municipality; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted February 7, 2020**
Arizona State University, Phoenix, Arizona
Before: TASHIMA, HURWITZ, and MILLER, Circuit Judges.
April Rivera appeals from the summary judgment entered in favor of the
Town of Patagonia, Marshal Joseph Patterson, and Deputy Marshal Ronald Davis
on Rivera’s claims under 42 U.S.C. § 1983 and Arizona law. Rivera argues that
*
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).
local law enforcement violated her Fourth Amendment rights through a series of
arrests and citations that lacked probable cause. We have jurisdiction under 28
U.S.C. § 1291. We review de novo, considering the evidence in the light most
favorable to Rivera. See Gordon v. County of Orange, 888 F.3d 1118, 1122 (9th
Cir. 2018). We affirm.
1. We agree with the district court that law enforcement officials had
probable cause each time they arrested or cited Rivera. Probable cause exists when
“the facts and circumstances within the officer’s knowledge are sufficient to
warrant a prudent person to believe ‘that the suspect has committed, is committing,
or is about to commit an offense.’” Barry v. Fowler, 902 F.2d 770, 773 (9th Cir.
1990) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). Probable cause
does not require certainty of criminal conduct, but only “a fair probability, given
the totality of the circumstances.” United States v. Lopez, 482 F.3d 1067, 1078 (9th
Cir. 2007).
During a three-month period in 2014, Rivera had several significant contacts
with law enforcement, beginning with her arrest on March 15 for disorderly
conduct after Rivera hit her ex-husband in the head with a bottle during a domestic
altercation. Rivera does not contest the validity of her March 15 arrest, but argues
that many of the later arrests and citations lacked probable cause. We agree with
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the district court that, for each challenge, Rivera has not shown a genuine factual
dispute material to the existence of probable cause.
For example, with respect to Rivera’s April 2 citation for interfering with a
court order, it is undisputed that officers understood that Rivera had approached
her ex-husband at their shared workplace, and persisted in approaching him during
his one-time visit to retrieve belongings from their formerly shared residence,
despite direction from law enforcement to avoid contact. These contacts violated
the conditions of Rivera’s release from jail for the March 15 offense and were
contrary to instructions from law enforcement present at the time. The officers had
probable cause to cite Rivera for a violation of Ariz. Rev. Stat. § 13-2810(A)(2),
which prohibits the knowing resistance of a court order.
For Rivera’s April 19 citation, it is undisputed that Rivera repeatedly called
911 without informing the dispatcher of an emergency. That conduct provided
probable cause that Rivera was committing a crime. See Ariz. Rev. Stat. § 40-
340(C). Because the inquiry into probable cause is an objective one, it is irrelevant
that law enforcement issued a citation to Rivera under different statutory
provisions. See Edgerly v. City & County of San Francisco, 599 F.3d 946, 954 (9th
Cir. 2010); see also Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
Rivera also argues that Patterson lacked probable cause when on April 19 he
instructed her to vacate the mobile home where she resided, or be arrested for
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criminal trespass. But Rivera does not contend that she was arrested for criminal
trespass.
Rivera does not contest her April 19 arrest for driving under the influence,
but argues that law enforcement then impounded her car without authority. That is
incorrect. Rivera’s car was ultimately towed incident to her arrest for driving under
the influence, as permitted by Arizona law. See Ariz. Rev. Stat. § 28-872(C)(3).
As for Rivera’s arrest on June 17 for driving with a suspended license,
resisting arrest, and other violations, the record shows that officers reasonably
understood that Rivera’s license was suspended at that time. Law enforcement
therefore had probable cause to cite Rivera. See Ariz. Rev. Stat. § 28-3473(A). Her
conduct during the traffic stop provided probable cause for other violations. See,
e.g., id. § 13-2508(A)(3) (resisting arrest).
For each arrest or citation, Rivera does not show that exculpatory evidence,
ignored by the officers, would definitively “negate a finding of probable cause.”
Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015) (quoting
Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003)). A reasonable jury could
not find that the facts known to law enforcement were insufficient to establish
probable cause.
2. Even assuming that law enforcement lacked probable cause to arrest
or cite Rivera for any of the incidents, the officers are entitled to qualified
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immunity because they “reasonably but mistakenly conclude[d] that probable
cause [wa]s present.” District of Columbia v. Wesby, 138 S. Ct. 577, 591 (2018)
(quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Because a reasonable
officer “could have interpreted the law as permitting the arrests” and citations, see
id. at 593, summary judgment was appropriate.
3. Rivera raised a variety of other claims below but has not preserved
them on appeal. Generally, we do not consider issues that a party does not
specifically raise and support by argument in the opening brief, and we find no
reason to depart from that practice here. See France v. Johnson, 795 F.3d 1170,
1175 (9th Cir. 2015); see also Fed. R. App. P. 28(a)(8).
AFFIRMED.
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