FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERRIS EDGERLY, No. 11-15655
Plaintiff-Appellant,
D.C. No.
v. 3:03-cv-02169-
CRB
CITY AND COUNTY OF SAN
FRANCISCO; DAVID GOFF; JOHN
CONEFREY, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
March 11, 2013—San Francisco, California
Filed April 10, 2013
Before: John T. Noonan, Jr., Raymond C. Fisher, and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Fisher
2 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO
SUMMARY*
Civil Rights
The panel affirmed in part and vacated in part the district
court’s judgment, entered following a jury trial, and
remanded in this 42 U.S.C. § 1983 action alleging unlawful
search and false arrest.
The panel held that California Penal Code § 853.5
provides the exclusive grounds for the custodial arrest of a
person arrested for an infraction. The panel rejected
defendants’ argument that California Penal Code § 853.6(i),
which provides additional broader grounds for the custodial
arrest of a person arrested for a misdemeanor, also applied to
the nonrelease of a person arrested for an infraction. The
panel therefore vacated the judgment in favor of the
defendants on plaintiff’s state law false arrest claim and
remanded for further proceedings.
The panel affirmed the district court’s judgment in favor
of defendants on plaintiff’s unlawful search claim. The panel
held that plaintiff had not shown that the district court’s error
on the false arrest claim tainted the jury’s finding that he was
not subjected to a strip search.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 3
COUNSEL
Gregory M. Haynes, San Francisco, California, for Plaintiff-
Appellant.
Sean F. Connolly, Deputy City Attorney, San Francisco,
California, for Defendants-Appellees.
OPINION
FISHER, Circuit Judge:
This appeal requires us to decide when a person arrested
for an infraction may be taken into custody under California
law. California Penal Code § 853.5 provides three narrow
grounds for the nonrelease of a person arrested for an
infraction. California Penal Code § 853.6(i) provides 10
broader grounds for the nonrelease of a person arrested for a
misdemeanor. The defendants argue – and the district court
ruled – that the grounds for custodial arrest specified in
§ 853.6(i) apply not only to misdemeanors but also to
infractions. We disagree. Consistent with decisions of the
California Court of Appeal and the statute’s plain language,
we hold that Penal Code § 853.5 provides the exclusive
grounds for custodial arrest of a person arrested for an
infraction. We therefore vacate the judgment in favor of the
defendants on the plaintiff’s state law false arrest claim and
remand for further proceedings.
BACKGROUND
In 2000, Erris Edgerly was standing by himself inside a
playground at the Martin Luther King/Marcus Garvey
4 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO
Housing Cooperative in San Francisco, where he was not a
resident. The playground was surrounded by a fence and had
“No Trespassing” signs posted at every entrance. Two San
Francisco Police Department officers, John Conefrey and
David Goff, arrested Edgerly for trespassing. The officers
conducted a pat-down search, then transferred Edgerly to the
Park Police Station, where they performed an additional
search. The search did not reveal any contraband and
Sergeant Frederick Schiff, the police supervisor on duty at the
time, authorized the officers to issue Edgerly a citation for
trespass and release him. Edgerly was cited and released.
Edgerly was not prosecuted for trespass or any other offense.
Edgerly filed this 42 U.S.C. § 1983 action against Goff,
Conefrey, Schiff and the City and County of San Francisco,
alleging that Goff and Conefrey unlawfully arrested and
searched him in violation of the Fourth Amendment, and that
Schiff and the City were liable for the officers’
unconstitutional actions. Edgerly also asserted various state
tort claims, including, as relevant here, claims for false arrest
and unlawful search.
The case went to trial and, at the close of evidence, the
district court granted the defendants’ motion for judgment as
a matter of law on Edgerly’s false arrest claim. The court
ruled that, as a matter of law, Goff and Conefrey had
probable cause to arrest Edgerly under California Penal Code
§ 602(l) (now § 602(m)) or § 602.8. Edgerly appealed.1
1
For the procedural history on Edgerly’s remaining claims, which are
not relevant to this appeal, see Edgerly v. City & County of San Francisco,
599 F.3d 946, 951–53 (9th Cir. 2010).
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 5
On appeal, we held that the officers lacked probable cause
to arrest Edgerly under § 602(l) but that probable cause for an
arrest existed under § 602.8. See Edgerly v. City & Cnty. of
S.F., 599 F.3d 946, 954 (9th Cir. 2010).2 We held, however,
2
Section 602.8 provides in relevant part:
(a) Any person who without the written permission
of the landowner, the owner’s agent, or the person in
lawful possession of the land, willfully enters any lands
under cultivation or enclosed by fence, belonging to, or
occupied by, another, or who willfully enters upon
uncultivated or unenclosed lands where signs
forbidding trespass are displayed at intervals not less
than three to the mile along all exterior boundaries and
at all roads and trails entering the lands, is guilty of a
public offense.
(b) Any person convicted of a violation of
subdivision (a) shall be punished as follows:
(1) A first offense is an infraction punishable
by a fine of seventy-five dollars ($75).
(2) A second offense on the same land or any
contiguous land of the same landowner, without
the permission of the landowner, the landowner’s
agent, or the person in lawful possession of the
land, is an infraction punishable by a fine of two
hundred fifty dollars ($250).
(3) A third or subsequent offense on the same
land or any contiguous land of the same
landowner, without the permission of the
landowner, the landowner’s agent, or the person in
lawful possession of the land, is a misdemeanor.
Cal. Penal Code § 602.8(a)–(b).
6 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO
that the officers lacked authority under state law to place
Edgerly into custody. See id. at 956. We explained that
a first offense under section 602.8(a) is
punishable only as an infraction and, under
California law, “[i]n all cases . . . in which a
person is arrested for an infraction,” custodial
arrest is authorized “[o]nly if the arrestee
refuses to sign a written promise [to appear],
has no satisfactory identification, or refuses to
provide a thumbprint or fingerprint.” Cal.
Penal Code § 853.5(a).
Here, because the Officers did not testify
that Edgerly met any of these three
requirements, or that they had reason to
believe that he previously violated section
602.8(a), the custodial arrest was not
authorized by state law. . . . We therefore
reverse and remand for further proceedings on
this state law claim.
Id. at 959 (alterations in original but last ellipsis added).3
3
Section 853.5(a) provides:
Except as otherwise provided by law, in any case
in which a person is arrested for an offense declared to
be an infraction, the person may be released according
to the procedures set forth by this chapter for the
release of persons arrested for an offense declared to be
a misdemeanor. In all cases, except as specified in
Sections 40302, 40303, 40305, and 40305.5 of the
Vehicle Code, in which a person is arrested for an
infraction, a peace officer shall only require the arrestee
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 7
On remand, the defendants raised a new argument that
Edgerly’s custodial arrest was authorized by Penal Code
§ 853.6(i).4 On its face, § 853.6(i), which specifies 10
to present his or her driver’s license or other
satisfactory evidence of his or her identity for
examination and to sign a written promise to appear
contained in a notice to appear. If the arrestee does not
have a driver’s license or other satisfactory evidence of
identity in his or her possession, the officer may require
the arrestee to place a right thumbprint, or a left
thumbprint or fingerprint if the person has a missing or
disfigured right thumb, on the notice to appear. Except
for law enforcement purposes relating to the identity of
the arrestee, no person or entity may sell, give away,
allow the distribution of, include in a database, or create
a database with, this print. Only if the arrestee refuses
to sign a written promise, has no satisfactory
identification, or refuses to provide a thumbprint or
fingerprint may the arrestee be taken into custody.
Cal. Penal Code § 853.5(a).
4
Section 853.6(i) provides:
Whenever any person is arrested by a peace officer
for a misdemeanor, that person shall be released
according to the procedures set forth by this chapter
unless one of the following is a reason for nonrelease,
in which case the arresting officer may release the
person, except as provided in subdivision (a), or the
arresting officer shall indicate, on a form to be
established by his or her employing law enforcement
agency, which of the following was a reason for the
nonrelease:
(1) The person arrested was so intoxicated that he
or she could have been a danger to himself or herself or
to others.
8 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO
(2) The person arrested required medical
examination or medical care or was otherwise unable to
care for his or her own safety.
(3) The person was arrested under one or more of
the circumstances listed in Sections 40302 and 40303
of the Vehicle Code.
(4) There were one or more outstanding arrest
warrants for the person.
(5) The person could not provide satisfactory
evidence of personal identification.
(6) The prosecution of the offense or offenses for
which the person was arrested, or the prosecution of
any other offense or offenses, would be jeopardized by
immediate release of the person arrested.
(7) There was a reasonable likelihood that the
offense or offenses would continue or resume, or that
the safety of persons or property would be imminently
endangered by release of the person arrested.
(8) The person arrested demanded to be taken
before a magistrate or refused to sign the notice to
appear.
(9) There is reason to believe that the person would
not appear at the time and place specified in the notice.
The basis for this determination shall be specifically
stated.
(10) The person was subject to Section 1270.1.
The form shall be filed with the arresting agency as
soon as practicable and shall be made available to any
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 9
grounds for nonrelease, applies only to misdemeanors. The
defendants argued, however, that § 853.6(i) applies to
infractions as well, relying on the first sentence of § 853.5(a),
which states: “[e]xcept as otherwise provided by law, in any
case in which a person is arrested for an offense declared to
be an infraction, the person may be released according to the
procedures set forth by this chapter for the release of persons
arrested for an offense declared to be a misdemeanor.” Cal.
Penal Code § 853.5(a) (emphasis added).
The district court agreed with the defendants that “these
ten exceptions from section 853.6 are incorporated into
section 853.5.” In support of this conclusion, the district
court cited People v. Arnold, 132 Cal. Rptr. 922, 925 n.2
(App. Dep’t Super. Ct. 1976), and California Criminal
Procedure § 3:58 (2010-11 ed.).
Having decided that § 853.6(i) applies to infractions, the
district court permitted three of § 853.6(i)’s grounds for
nonrelease to be submitted to the jury. See Cal. Penal Code
§ 853.6(i)(4), (7).5 The jury determined that these grounds
party having custody of the arrested person, subsequent
to the arresting officer, and to any person authorized by
law to release him or her from custody before trial.
Cal. Penal Code § 853.6(i).
5
The verdict form asked:
1. Given what you find the officers knew, did they
transfer Mr. Edgerly to the station to determine
whether Mr. Edgerly had any: (a) Outstanding
warrants; [or] (b) Stay-away orders, holds,
admonishments, or other restrictions?
10 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO
for nonrelease applied to Edgerly’s arrest. As a result, the
district court entered judgment in favor of the defendants on
Edgerly’s false arrest claim. Edgerly once again appeals.
STANDARD OF REVIEW
The district court’s interpretation of state law is reviewed
de novo. See Lahoti v. Vericheck, Inc., 636 F.3d 501, 505
(9th Cir. 2011).
DISCUSSION
I.
Edgerly was arrested for trespass under Penal Code
§ 602.8. A first or second offense under § 602.8 is an
infraction. See Cal. Penal Code § 602.8(b). Penal Code
§ 853.5(a) governs when a person arrested for an infraction
can be taken into custody. It provides:
2. Given what you find the officers knew, did they
believe that there was a reasonable likelihood that
Mr. Edgerly’s trespass offense would continue or
resume if the officers did not transport him from
the scene of the arrest?
3. Given what you find the officers knew, was it
reasonable for them to believe that the safety of
persons (including Officers Goff and Conefrey,
Mr. Edgerly, or anyone else) would be imminently
endangered by the release of Mr. Edgerly at the
scene of the arrest?
The jury answered each of these questions in the affirmative.
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 11
[1] Except as otherwise provided by law, in
any case in which a person is arrested for an
offense declared to be an infraction, the
person may be released according to the
procedures set forth by this chapter for the
release of persons arrested for an offense
declared to be a misdemeanor. [2] In all
cases, except as specified in Sections 40302,
40303, 40305, and 40305.5 of the Vehicle
Code, in which a person is arrested for an
infraction, a peace officer shall only require
the arrestee to present his or her driver’s
license or other satisfactory evidence of his or
her identity for examination and to sign a
written promise to appear contained in a
notice to appear. [3] If the arrestee does not
have a driver’s license or other satisfactory
evidence of identity in his or her possession,
the officer may require the arrestee to place a
right thumbprint, or a left thumbprint or
fingerprint if the person has a missing or
disfigured right thumb, on the notice to
appear. [4] Except for law enforcement
purposes relating to the identity of the
arrestee, no person or entity may sell, give
away, allow the distribution of, include in a
database, or create a database with, this print.
[5] Only if the arrestee refuses to sign a
written promise, has no satisfactory
identification, or refuses to provide a
thumbprint or fingerprint may the arrestee be
taken into custody.
Cal. Penal Code § 853.5(a) (sentence numbering added).
12 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO
By its express terms, § 853.5(a) specifies only three
situations in which custodial arrest is permitted for an
infraction: (1) the arrestee refuses to sign a written promise to
appear; (2) the arrestee is unable to produce satisfactory
identification; or (3) the arrestee refuses to provide a
thumbprint or fingerprint.
At the same time, however, § 853.5(a) also expressly
incorporates the procedures for release applicable to
misdemeanor arrests. Section 853.5(a) thus incorporates, at
least in part, § 853.6. The question presented here is whether
§ 853.5(a) incorporates all of § 853.6 – including its grounds
for nonrelease in § 853.6(i) – or only some of § 853.6. The
defendants argue that § 853.5(a) incorporates all of § 853.6,
including § 853.6(i), whereas Edgerly argues that § 853.5(a)
incorporates only § 853.6’s release procedures, not its
grounds for nonrelease. We conclude that Edgerly is correct.
“In a case requiring a federal court to apply California
law, the court must apply the law as it believes the California
Supreme Court would apply it.” Kairy v. SuperShuttle Int’l,
660 F.3d 1146, 1150 (9th Cir. 2011) (internal quotation marks
omitted). In the absence of a controlling California Supreme
Court decision, “we follow decisions of the California Court
of Appeal unless there is convincing evidence that the
California Supreme Court would hold otherwise.” Carvalho
v. Equifax Info. Servs., LLC, 629 F.3d 876, 889 (9th Cir.
2010).
Here, there are two California Court of Appeal decisions
on point, and each supports Edgerly’s position. In In re
Rottanak K., 43 Cal. Rptr. 2d 543 (Ct. App. 1995), the court
of appeal stated:
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 13
For adults accused of violating penal laws,
several types of release are possible. When an
adult is arrested for an infraction (with the
exception of a few specified Veh. Code
violations), the arresting officer requires that
the person present a driver’s license or other
satisfactory evidence of identification and
sign a promise to appear. Only if the person
refuses to present identification or to sign the
promise to appear can he or she be taken into
custody. (Pen. Code, § 853.5.) . . .
When an adult is arrested for a
misdemeanor and does not demand to be
taken before a magistrate, he or she must be
released once the arresting officer has
prepared a written notice to appear in court
and the arrestee has given a written promise to
appear as specified in the notice, unless the
officer makes special findings. (Pen. Code,
§ 853.6, subds. (a), (d), (i).)
Id. at 552–53 (emphasis added). Similarly, in People v.
Williams, 5 Cal. Rptr. 2d 59 (Ct. App. 1992), the court of
appeal stated:
When a person is arrested for an offense
declared to be an infraction, the person is
ordinarily released after the officer prepares a
notice to appear and the person arrested gives
his written promise to appear in court as
specified in the notice. Only if the arrestee
refuses to present written identification or to
sign the written promise to appear may he be
14 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO
taken into custody. (Pen. Code, §§ 853.5,
853.6, subd. (a).)
Id. at 61 n.1 (emphasis added). Notably, although Williams
cited § 853.5 and § 853.6(a), it did not cite § 853.6(i). Each
of these decisions said that § 853.5(a), not § 853.6(i),
provides the exclusive grounds for nonrelease of a person
arrested for an infraction. They make clear that § 853.6(i)
does not apply to infractions.
We recognize that Rottanak K. and Williams conflict with
People v. Arnold, 132 Cal. Rptr. 922, 925 n.2 (App. Dep’t
Super. Ct. 1976), which stated that § 853.6(j) – now
§ 853.6(i) – applies to infractions as well as misdemeanors.
Arnold, however, is a decision of the appellate department of
the superior court, which is inferior to the California Court of
Appeal and the California Supreme Court. See Snukal v.
Flightways Mfg., Inc., 3 P.3d 286, 300 (Cal. 2000). The
appellate department’s decisions are not binding on the
California Court of Appeal, see Carter v. Cohen, 116 Cal.
Rptr. 3d 303, 311–12 (Ct. App. 2010); Worthington v. Cal.
Unemployment Ins. Appeals Bd., 134 Cal. Rptr. 507, 510 (Ct.
App. 1976), and we do not follow decisions of the appellate
department when, as here, they conflict with decisions of the
California Court of Appeal, cf. McSherry v. Block, 880 F.2d
1049, 1053 n.2 (9th Cir. 1989). Arnold, therefore, does not
diminish the respect we owe to Rottanak K. and Williams.
As noted, “we follow decisions of the California Court of
Appeal unless there is convincing evidence that the California
Supreme Court would hold otherwise.” Carvalho, 629 F.3d
at 889. Here, we find no evidence that the California
Supreme Court would depart from these decisions. On the
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 15
contrary, California’s rules of statutory construction strongly
support Rottanak K. and Williams’ construction of § 853.5(a).
Under California law, “our fundamental task in construing
a statute is to ascertain the intent of the lawmakers so as to
effectuate the purpose of the statute.” Martinez v. Combs,
231 P.3d 259, 268 (Cal. 2010) (alteration omitted). “In this
search for what the Legislature meant, the statutory language
itself is the most reliable indicator, so we start with the
statute’s words, assigning them their usual and ordinary
meanings, and construing them in context.” Id. (alteration
and internal quotation marks omitted). “If the words
themselves are not ambiguous, we presume the Legislature
meant what it said, and the statute’s plain meaning governs.”
Id. “On the other hand, if the language allows more than one
reasonable construction, we may look to such aids as the
legislative history of the measure and maxims of statutory
construction. In cases of uncertain meaning, we may also
consider the consequences of a particular interpretation,
including its impact on public policy.” Id.
The defendants’ statutory construction argument relies on
the first sentence of § 853.5(a). This sentence says:
Except as otherwise provided by law, in any
case in which a person is arrested for an
offense declared to be an infraction, the
person may be released according to the
procedures set forth by this chapter for the
release of persons arrested for an offense
declared to be a misdemeanor.
Cal. Penal Code § 853.5(a) (emphasis added). As the
defendants point out, this language incorporates “procedures
16 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO
. . . for . . . release” governing misdemeanors and makes them
applicable to infractions, except as otherwise provided by
law. The defendants argue that the grounds for nonrelease
specified by § 853.6(i) are “procedures for release” and that
they are therefore incorporated by § 853.5(a). We find this
argument unpersuasive.
First, giving the phrase “procedures for release” its
natural and ordinary meaning, one would not generally
understand that term to extend to grounds for nonrelease.
Procedures for release and grounds for nonrelease appear to
constitute two different, albeit related, subjects. There is,
therefore, nothing in § 853.5(a)’s plain language to suggest
that the legislature intended to incorporate § 853.6(i) in the
first instance.
Second, even if § 853.6(i)’s grounds for nonrelease could
be considered release procedures (and, hence, potentially
subject to incorporation), the first six words of § 853.5(a) –
“Except as otherwise provided by law” – would bar that
result. Incorporating § 853.6(i) into § 853.5(a) would conflict
with § 853.5(a) itself, which specifies in its fifth and final
sentence only three grounds for nonrelease for a person
arrested for an infraction. The grounds for nonrelease
specified in § 853.5(a) would therefore control.
Third, it is a general rule of statutory interpretation that “a
statutory provision containing a specific enumeration shall
take precedence over another couched in more general
language.” People v. Valentine, 121 Cal. Rptr. 438, 440 (Ct.
App. 1975); see also Robertson v. Willis, 143 Cal. Rptr. 523,
527 (Ct. App. 1978) (“When specific language conflicts with
the general, the specific provisions will prevail.”). As applied
here, § 853.5(a)’s specific enumeration of the grounds for
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 17
nonrelease of a person arrested for an infraction takes
precedence over its general incorporation of misdemeanor
“procedures . . . for . . . release.”
Fourth, “[i]t is a settled principle of statutory
construction, that courts should strive to give meaning to
every word in a statute and to avoid constructions that render
words, phrases, or clauses superfluous.” In re C.H., 264 P.3d
357, 362 (Cal. 2011) (internal quotation marks omitted). If,
as the defendants argue, § 853.6(i) determines when a person
arrested for an infraction can be taken into custody, then
§ 853.5(a)’s fifth sentence – “Only if the arrestee refuses to
sign a written promise, has no satisfactory identification, or
refuses to provide a thumbprint or fingerprint may the
arrestee be taken into custody” – serves no purpose. Under
Edgerly’s reading, by contrast, every word in § 853.5(a) is
given meaning and no words are rendered superfluous. The
first sentence incorporates § 853.6’s release procedures (but
not its grounds for nonrelease) and the fifth sentence specifies
the grounds for nonrelease of a person arrested for an
infraction.
Finally, the defendants’ interpretation contradicts not only
California case law and the statute’s plain language but also
the leading treatise on California law. Witkin explains that
“[a] person arrested for an infraction is subject to the release
procedure specified in P.C. 853.6.” 4 B.E. Witkin, California
Criminal Law § 57, at 299 (4th ed. 2012) (emphasis added).
When it comes to grounds for nonrelease, however, Witkin
states that § 853.6(i) governs misdemeanors and § 853.5(a)
governs infractions, as Edgerly argues. See id. § 61, at
301–03. According to Witkin: “Except as specified in Veh.
C. 40302, 40303, 40305, and 40305.5 . . . , a person arrested
for an infraction may be taken into custody only if he or she
18 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO
refuses to present satisfactory evidence of identity or refuses
to sign the promise to appear. Otherwise, the person must be
released. (P.C. 853.5.)” Id. at 302–03 (emphasis added);
accord L. Levenson, California Criminal Procedure §§ 3:59,
3:64 (2012-2013 ed.) (same).
In sum, we find no convincing evidence that the
California Supreme Court would not follow Rottanak K. and
Williams. Consistent with those decisions, the statute’s plain
language, the rule against superfluity and other persuasive
authority, we hold that Penal Code § 853.5 provides the
exclusive grounds for custodial arrest of a person arrested for
an infraction.6 We therefore vacate the judgment in favor of
the defendants on Edgerly’s state law false arrest claim and
remand for further proceedings. If there are no further issues
pertaining to liability on this claim, the district court should
enter judgment in favor of Edgerly and proceed to a trial on
damages.
6
The defendants’ arguments to the contrary are wholly without merit.
Their argument that the second, third and fifth sentences of § 853.5(a)
apply only to Vehicle Code infractions is impossible to reconcile with the
plain language of the statute and contrary to each of the authorities we
have cited. The defendants’ argument that the officers were entitled to
take Edgerly into custody and transport him to the station house in order
“to research” whether this might be his third § 602.8 offense at the same
location, a misdemeanor, is highly unpersuasive. As we explained in
Edgerly, because the officers had no “reason to believe that he had
previously violated section 602.8(a), the custodial arrest was not
authorized by state law.” 599 F.3d at 959. The defendants have pointed
to nothing in § 853.5(a) – or any other provision of California law – that
authorizes police officers to take a defendant into custody based on
nothing more than rank speculation that the defendant may have
committed a misdemeanor. The defendants’ reliance on 58 Cal. Op. Atty.
Gen. 886 (1975) is also misplaced; nothing in § 602.8 grants authorities
discretion to treat a first offense as a misdemeanor.
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 19
II.
We reject Edgerly’s remaining contentions. First,
although his argument to the contrary is understandable, we
hold that the district court did not violate the law of the case
doctrine or the rule of mandate by submitting Edgerly’s false
arrest claim to the jury. See United States v. Thrasher,
483 F.3d 977, 981 (9th Cir. 2007) (“For the [law of the case]
doctrine to apply, the issue in question must have been
decided explicitly or by necessary implication in the previous
disposition.”); Hall v. City of L.A., 697 F.3d 1059, 1067 (9th
Cir. 2012) (“[T]he rule of mandate allows a lower court to
decide anything not foreclosed by the mandate.”). Second,
Edgerly has not shown that the district court’s error on the
false arrest claim tainted the jury’s finding that he was not
subjected to a strip search. See GCB Commc’ns, Inc. v. U.S.
S. Commc’ns, Inc., 650 F.3d 1257, 1262 (9th Cir. 2011) (“We
review evidentiary rulings for abuse of discretion, but will not
reverse those unless it is more probable than not that an error,
if any, tainted the outcome.”); Clem v. Lomeli, 566 F.3d 1177,
1182 (9th Cir. 2009) (“An error in instructing the jury in a
civil case requires reversal unless the error is more probably
than not harmless.”). The judgment on Edgerly’s unlawful
search claims therefore stands.
CONCLUSION
We affirm judgment in favor of the defendants on
Edgerly’s unlawful search claims. We vacate judgment in
20 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO
favor of the defendants on Edgerly’s state law false arrest
claim and remand for further proceedings. Costs of appeal
are awarded to Edgerly.
AFFIRMED IN PART, VACATED IN PART AND
REMANDED.