Frank Borquez v. City of Tucson , 475 F. App'x 663 ( 2012 )

FILED
NOT FOR PUBLICATION APR 11 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK U. BORQUEZ, No. 10-16552
Plaintiff - Appellant, D.C. No. CV 08-0162 TUC DCB
v. MEMORANDUM *
CITY OF TUCSON, an Arizona
municipality; TUCSON POLICE
DEPARTMENT; PACHECO, named as
PACHECO #34960, Tucson Police
Officer, in his individual and official
capacity,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted September 1, 2011
San Francisco, California
Before: FISHER and RAWLINSON, Circuit Judges, and MILLS,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Mills, United States District Judge for the
Central District of Illinois, sitting by designation.
Frank U. Borquez appeals the district court’s order granting judgment as a
matter of law as to his claim of excessive force brought under 42 U.S.C. § 1983.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo, see Saman v.
Robbins, 173 F.3d 1150, 1155 (9th Cir. 1999), and we affirm.
I.
The district court properly granted judgment as a matter of law on the
excessive force claim, because Sergeant Fabian Pacheco was entitled to qualified
immunity.
As reflected by the special verdict form, the jury found that Borquez
“grabbed the arm of Defendant Fabian Pacheco as they encountered each other
near the front door” of the residence. At the time his arm was grabbed, Pacheco
was escorting an arrestee (Borquez’s adult son) to a police vehicle. Pacheco
shoved Borquez, and Borquez stumbled, hitting his head against a wall and
injuring his knee as he fell to the ground.
Given the jury’s finding that Borquez grabbed Pacheco’s arm, we conclude
that it would not have been sufficiently clear to every reasonable officer whether
Pacheco’s shove was unlawful under these conditions. See Mattos v. Agarano, 661
F.3d 433, 452 (9th Cir. 2011) (en banc); see also Blankenhorn v. City of Orange,
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485 F.3d 463, 481 (9th Cir. 2007); Drummond v. City of Anaheim, 343 F.3d 1052,
1060 (9th Cir. 2003). Therefore, Pacheco is entitled to qualified immunity.
Borquez unpersuasively argues that the district court’s grant of judgment as
a matter of law is inconsistent with the jury’s finding that Pacheco used excessive
force. Although we give deference to the jury’s verdict, whether a right is clearly
established is a pure question of law that is reserved for a court to decide. See
Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). This is a threshold
determination that is distinct from the merits of the claim. See Mitchell v. Forsyth,
472 U.S. 511, 527-28 (1985).
II.
Borquez has waived his false arrest claim by failing to properly raise it in his
opening brief. See United States v. Waters, 627 F.3d 345, 359 n.6 (9th Cir. 2010).
Even if we were to hold otherwise, the false arrest claim would fail on the merits.
A police officer is “entitled to qualified immunity on a false arrest claim if a
reasonable officer in his position could have believed that probable cause existed.”
Norse v. City of Santa Cruz, 629 F.3d 966, 978 (9th Cir. 2010) (en banc). Probable
cause exists when officers have “knowledge or reasonably trustworthy information
sufficient to lead a person of reasonable caution to believe that an offense has been
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or is being committed by the person being arrested.” Garcia v. Cnty. of Merced,
639 F.3d 1206, 1209 (9th Cir. 2011) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)).
Considering that Borquez approached an officer leading an arrestee to a
police vehicle, verbally challenged the officer’s actions, and grabbed the arm of the
officer, we conclude that a reasonable officer in Pacheco’s position could have
believed that probable cause existed to arrest Borquez for interfering in
governmental operations, in violation of A.R.S. § 13-2402.
The jury’s finding that Borquez did not use or threaten to use physical force
“to knowingly obstruct, impair or hinder the enforcement of the penal law or the
preservation of the peace” is not dispositive. Though the jury may have concluded
that Borquez did not in fact commit the offense of interfering with governmental
operations, that does not preclude probable cause to make an arrest. See Garcia,
639 F.3d at 1209 (holding that police need only a “fair probability,” not a
preponderance of evidence, that a person committed an offense to have probable
cause to make an arrest).
AFFIRMED.
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