554 F. App'x 566
9th Cir.2014Background
- Plaintiff Jimmy Downs resisted Officer Michael Ferriolo’s attempt to arrest him; Downs remained on a booth and allegedly disobeyed orders.
- Ferriolo arrested Downs; Downs sued alleging Fourth Amendment excessive force and false arrest.
- District court denied Ferriolo’s motion for summary judgment based on qualified immunity.
- Ferriolo appealed interlocutorily; Ninth Circuit reviews only whether the alleged facts support a claim of clearly established law.
- Downs did not argue on appeal that Ferriolo used excessive force or that any force used violated a clearly established right, nor that he faced imminent serious bodily harm.
- Ninth Circuit concluded it was reasonably arguable there was probable cause to arrest Downs for resisting arrest under Nevada law, so qualified immunity applies to the false-arrest claim as well.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Excessive force (Fourth Amendment) | Downs alleges Ferriolo used force during arrest | Ferriolo contends any force was lawful and not clearly established as excessive | Reversed: Ferriolo entitled to qualified immunity — Downs did not show clearly established excessive-force violation |
| False arrest (Fourth Amendment) | Arrest was unlawful because Downs was merely resisting an unlawful arrest | Ferriolo argues reasonable officers could think probable cause existed for an offense (resisting) | Reversed: Ferriolo entitled to qualified immunity — reasonably arguable probable cause for an offense existed |
Key Cases Cited
- Slater v. Clarke, 700 F.3d 1200 (9th Cir.) (interlocutory appeal jurisdiction for qualified immunity)
- Mitchell v. Forsyth, 472 U.S. 511 (U.S. Supreme Court) (qualified immunity interlocutory appeal principle)
- Alston v. Read, 663 F.3d 1094 (9th Cir.) (standard of review for denial of qualified immunity at summary judgment)
- Moran v. Washington, 147 F.3d 839 (9th Cir.) (same)
- Tatum v. City of San Francisco, 441 F.3d 1090 (9th Cir.) (Fourth Amendment allows reasonable force in arrest)
- Graham v. Connor, 490 U.S. 386 (U.S. Supreme Court) (objective reasonableness standard for excessive force)
- Rosenbaum v. Washoe Cnty., 663 F.3d 1071 (9th Cir.) (probable cause reasonably arguable standard for qualified immunity)
- Tsao v. Desert Palace, Inc., 698 F.3d 1128 (9th Cir.) (probable cause for any offense suffices for qualified immunity)
- Devenpeck v. Alford, 543 U.S. 146 (U.S. Supreme Court) (offense-specificity not required for probable cause)
- Batson v. State, 941 P.2d 478 (Nev.) (Nevada rule on resisting arrest: only allowed if officer’s force is unlawful and imminent serious bodily harm exists)
- State v. Lisenbee, 13 P.3d 947 (Nev.) (courts determine lawfulness of seizures; resisting arrest standards)