                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BEN L. FORTSON,                          No. 15-55497
                  Plaintiff-Appellant,
                                            D.C. No.
                  v.                     2:12-cv-05256-
                                            MWF-SP
LOS ANGELES CITY ATTORNEY’S
OFFICE; CALIFORNIA DEPARTMENT
OF JUSTICE, Bureau of Firearms;            OPINION
CITY OF LOS ANGELES POLICE
DEPARTMENT; CARMEN A.
TRUTANICH, individual and City
Attorney, official capacity; BERNIE
BROWN, individual and Supervising
Attorney, official capacity; VICTOR
BROWN, individual and Detective II,
Serial No. 30082, official capacity;
RICK TOMPKINS, Detective
Supervisor of Gun Unit, No. 27904,
official capacity; WONG, L.A.P.D.
Police Officer II, No. 21883, official
capacity; HERNANDEZ, L.A.P.D.
Police Officer II, No. 36039, official
capacity; ROSS, L.A.P.D. Police
Officer III, No. 25445, official
capacity; HIGA, D.O.J. Agent,
official capacity; TORRES, D.O.J.
Agent, official capacity; MEJIA,
D.O.J. Agent, official capacity;
MALAIKA COLE, individual and L.A.
2           FORTSON V. L.A. CITY ATTY’S OFFICE

 City Attorney, official capacity;
 ALIN CEM CEM SAHAGIAN,
 individual and L.A. City Attorney,
 official capacity; GREGORY ALAN
 DORFMAN, individual and L.A. City
 Attorney, official capacity; CAROL
 PARSZIK, Special Agent/Supervisor,
 official capacity; KOSAL BUN,
 Individual and Los Angeles Police
 Officer, No. 33600,official capacity,
                 Defendants-Appellees.


         Appeal from the United States District Court
             for the Central District of California
        Michael W. Fitzgerald, District Judge, Presiding

                  Submitted February 6, 2017*
                     Pasadena, California

                        Filed April 7, 2017

        Before: Mary M. Schroeder, Andre M. Davis,**
            and Mary H. Murguia, Circuit Judges.

                  Opinion by Judge Schroeder



    *
     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
    **
       The Honorable Andre M. Davis, United States Circuit Judge for the
Fourth Circuit, sitting by designation.
             FORTSON V. L.A. CITY ATTY’S OFFICE                           3

                            SUMMARY***


                             Civil Rights

    The panel affirmed the district court’s dismissal of an
action brought under 42 U.S.C. § 1983 alleging that law
enforcement officials violated plaintiff’s Second Amendment
rights by seizing firearms and ammunition he kept in his
home, and then prosecuting him for unlawful possession.

    Plaintiff previously had been convicted of misdemeanor
domestic violence, which under California law, automatically
triggers a ten-year prohibition on the ownership or possession
of firearms and ammunition. The panel noted that this
Court upheld a more restrictive federal lifetime ban for
persons convicted of misdemeanor domestic violence in
United States v. Chovan, 735 F.3d 1127, 1139–1141 (9th Cir.
2013). Applying Chovan, the panel upheld California’s 10-
year ban and determined that it was validly applied to
plaintiff.

    The panel rejected plaintiff’s claims that he was falsely
arrested and maliciously prosecuted. The panel concluded
that since the record reflected that plaintiff’s arrest and
prosecution were based on probable cause that he possessed
the weapons unlawfully, he necessarily could not be granted
relief on these claims. The panel further rejected plaintiff’s
claims that his Fifth and Fourteenth Amendment rights were
violated because he was never read a warning regarding his
rights per Miranda v. Arizona. Finally, the panel rejected

    ***
        This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4         FORTSON V. L.A. CITY ATTY’S OFFICE

plaintiff’s official-capacity claims, determining that the
California Bureau of Firearms was immune from suit under
the Eleventh Amendment, and that plaintiff had not
sufficiently alleged an underlying constitutional violation
against the Los Angeles Police Department.


                       COUNSEL

Benjamin L. Fortson, Lake Los Angeles, California, pro se
Plaintiff-Appellant.

Michael N. Feuer, City Attorney; Paul L. Winnemore, Deputy
City Attorney; Office of the Los Angeles City Attorney, Los
Angeles, California; for Defendants-Appellees.


                        OPINION

SCHROEDER, Circuit Judge:

    This appeal challenges the constitutionality of
California’s ten-year ban on possession of firearms after a
conviction for misdemeanor domestic violence. Plaintiff
Benjamin Fortson appeals the dismissal of his action under
42 U.S.C. § 1983 for failure to state a claim. He contends
that the Los Angeles Police Department, the Los Angeles
City Attorney’s Office, the California Bureau of Firearms,
and individual officers, agents, and attorneys violated his
Second Amendment rights by seizing firearms and
ammunition he kept in his home, and then prosecuting him
for the unlawful possession of firearms and ammunition.
Fortson had previously been convicted of misdemeanor
domestic violence, which under California law, automatically
           FORTSON V. L.A. CITY ATTY’S OFFICE                5

triggers a ten-year prohibition on the ownership or possession
of firearms and ammunition. Fortson’s sentencing judge gave
him a partial exception so Fortson could keep and possess
firearms at his place of work as an armed security guard.

    Fortson challenges the California law both facially and as
applied to him. Since we have already upheld the more
restrictive federal lifetime ban for persons convicted of
misdemeanor domestic violence, we now must uphold the
California law as well. See United States v. Chovan,
735 F.3d 1127, 1139–41 (9th Cir. 2013). We also hold that
the law was validly applied to Fortson.

     Fortson additionally maintains that defendants violated
his Fourth and Fourteenth Amendment rights by falsely
arresting him and maliciously prosecuting him. Since the
record reflects that his arrest and prosecution were based on
probable cause that he possessed the weapons unlawfully, he
necessarily cannot be granted relief on these claims. See
Dubner v. City & Cty. of San Francisco, 266 F.3d 959, 964
(9th Cir. 2001) (holding that the existence of probable cause
is a complete defense to a § 1983 claim alleging false arrest);
Lassiter v. City of Bremerton, 556 F.3d 1049, 1054–55 (9th
Cir. 2009) (holding the same for malicious prosecution).

    Fortson also claims a violation of the Fifth and Fourteenth
Amendments because he was never read a warning regarding
his rights per Miranda v. Arizona, 384 U.S. 436 (1966).
Miranda claims, however, are not cognizable under 42 U.S.C.
§ 1983. See Chavez v. Martinez, 538 U.S. 760, 772 (2003).

   Lastly, Fortson brings official-capacity claims against the
Los Angeles Police Department, Los Angeles City Attorney’s
Office, and the California Bureau of Firearms. The
6            FORTSON V. L.A. CITY ATTY’S OFFICE

California Bureau of Firearms, however, is immune from suit
under the Eleventh Amendment. See Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 66 (1989). Fortson’s official-
capacity claims against the Los Angeles Police Department
also fail because Fortson has not sufficiently alleged an
underlying constitutional violation or otherwise identified an
official policy or custom that was the “moving force” behind
a potential constitutional violation. See Yousefian v. City of
Glendale, 779 F.3d 1010, 1016 (9th Cir. 2015); Monell v.
Dep’t of Social Servs., 436 U.S. 658, 694 (1978). We
therefore affirm the judgment of the district court.

                         BACKGROUND

    Benjamin Fortson was convicted of a single count of
misdemeanor domestic abuse in violation of Cal. Penal Code
§ 243 on September 25, 2009. Under California law, a
conviction for Cal. Penal Code § 243 triggered Cal. Penal
Code § 12021(c)(1),1 which makes it a misdemeanor to own,
purchase, receive, or have in one’s custody or control any
firearm for a period of ten years. Fortson’s employment,
however, was as an armed security guard, and, in light of this,
the sentencing court entered a modification specifically
allowing him to use and keep a weapon while at work.
Fortson was not allowed to have weapons at his home or in
his possession when not at work.

   On April 13, 2011, Fortson returned to court because he
had satisfied all the affirmative obligations of his sentence.
Under Cal. Penal Code § 1203.4, his domestic violence
conviction was vacated and his probation and protective order

    1
      California has since made minor changes to this law and changed its
codification; the current version can be found at Cal. Penal Code § 29805.
           FORTSON V. L.A. CITY ATTY’S OFFICE                 7

were terminated. Fortson changed his plea from nolo
contendere to not guilty, and the case was dismissed. Fortson
apparently, but incorrectly, believed this restored his right to
keep and possess firearms at home, and he soon acquired two
guns and some ammunition.

    The California Bureau of Firearms (“BOF”) routinely
runs an automatic nightly computer check to determine if any
prohibited persons are in unlawful possession of firearms.
One of these checks flagged Fortson. Per BOF policy, BOF
agents accompanied by Los Angeles Police Department
(“LAPD”) officers arrived at Fortson’s home on August 24,
2011. Under BOF policy, the officers were to inform Fortson
that they had reason to believe he was in unlawful possession
of firearms, and request permission to enter and seize them;
if permission was denied, the officers were to return with a
warrant.

    When the officers arrived at Fortson’s home they
demanded his weapons. Fortson repeatedly maintained that
he was allowed to keep and possess firearms at home under
his sentencing order. Over his objections and after restraining
him, the officers seized the weapons. Fortson was later
charged with violating the ten-year ban on owning firearms
and ammunition, but these charges were eventually dropped
in the furtherance of justice.

    Fortson filed this Section 1983 action in 2012. The
district court dismissed the individual prosecutors and City
Attorney’s office on grounds of absolute prosecutorial
immunity and dismissed the BOF on sovereign immunity
grounds. It also dismissed Fortson’s facial challenge to
California’s ten-year prohibition, but gave Fortson leave to
file an amended complaint to state an as applied challenge.
8          FORTSON V. L.A. CITY ATTY’S OFFICE

Fortson filed his amended complaint, bringing individual- and
official-capacity claims based on violations of the Second
Amendment both facially and as applied, as well as a
Miranda claim, and claims of false imprisonment and
malicious prosecution. The district court then dismissed all
these claims with prejudice. A Fourth Amendment claim of
unlawful search against the BOF agents and LAPD officers
in their individual capacities survived the motion to dismiss.
Fortson, however, agreed to voluntarily dismiss that claim
without prejudice so that he could pursue this appeal.

                        DISCUSSION

    Fortson argues that California’s ten-year ban is facially
invalid under the Second Amendment. In the alternative, he
contends that the sentencing court did not impose the full ten-
year ban, so that the seizure of his guns as violating the ten-
year ban was unconstitutional as applied to him. The
precedential legal issue is the constitutionality of the ten-year
ban. Our decision is controlled by our circuit precedent
upholding an even stricter federal ban.

     In United States v. Chovan, we upheld 18 U.S.C.
§ 922(g)(9) against a challenge to its validity under the
Second Amendment. That law imposes a lifetime ban on
firearm ownership for those convicted of misdemeanor
domestic violence. Applying intermediate scrutiny, we noted
that the “core of the Second Amendment is ‘the right of law-
abiding, responsible citizens to use arms in defense of hearth
and home.’” Chovan, 735 F.3d at 1138 (quoting Dist. of
Columbia v. Heller, 554 U.S. 570, 635 (2008)). The federal
lifetime ban thus does not implicate the core of the Second
Amendment because it “regulates firearm possession for
individuals with criminal convictions.” Id.
           FORTSON V. L.A. CITY ATTY’S OFFICE                9

    We went on to observe that the ban did, however, place a
“quite substantial” burden on “domestic violence
misdemeamants’ rights.” Id. Nonetheless, we noted that the
federal ban “advances an important government objective . . .
[of] preventing domestic gun violence.” Id. at 1139
(emphasis in original). Looking to the purpose and history of
the federal ban, we held that domestic violence has a high rate
of recidivism, and when a gun is used, domestic violence is
far more likely to result in the victim’s death. Thus, there is
a reasonable fit between preventing domestic gun violence
and preventing domestic abusers from possessing or using
guns. In light of this, we held that the federal lifetime ban
was substantially related to the important government
interest. See id. at 1139–40 (noting the “high rate of domestic
violence recidivism,” the use of firearms in “roughly 65% of
[domestic violence] murders,” and that “the use of guns by
domestic abusers is more likely to result in the victim’s
death”).

    California’s ten-year ban advances the same government
interest and is substantially related to that interest for the
reasons we identified in Chovan. Indeed, it is far less
restrictive and less burdensome on domestic violence
misdemeanants’ rights in that it only restricts ownership, use,
or possession of firearms for ten years, rather than for life.
Thus, as we held with respect to the federal lifetime ban, “the
statute passes constitutional muster under intermediate
scrutiny.” Id. at 1141.

    In Fortson’s as-applied challenge, he argues that the ban
does not apply to him. He appears to be under the
misapprehension that because his sentencing court did not
specifically notify him that the ban on keeping or using
firearms in his home lasted ten years, it was coterminous with
10         FORTSON V. L.A. CITY ATTY’S OFFICE

his probation. This is not so. The prohibition attached
automatically, and though it has a notice requirement, lack of
notice is not a defense. See Cal. Penal Code § 29810.
Though his sentencing court granted Fortson an exception to
the ban so he could use and keep guns for his job, the
exception was applied only to his possession of guns at his
place of work. Fortson alleged no other facts about himself
and his background that would distinguish him from any
other domestic violence misdemeanant, and thus his as-
applied challenge fails. See Chovan, 735 F.3d at 1142; see
also Binderup v. Att’y Gen. United States of America,
836 F.3d 336, 346 (3d Cir. 2016) (en banc) (holding that a
plaintiff must allege facts that distinguish him from the
typical person the ban applies to in order to state an as applied
claim).

    Fortson’s other claims were also correctly dismissed. The
malicious prosecution and false arrest claims necessarily fail
because his arrest and prosecution were supported by
probable cause. See Dubner, 266 F.3d at 964 (“A claim for
unlawful arrest is cognizable under § 1983 as a violation of
the Fourth Amendment, provided the arrest was without
probable cause or other justification.”); Lassiter, 566 F.3d at
1054–55 (“[P]robable cause is an absolute defense to
malicious prosecution.”). Fortson’s arrest and prosecution
followed the discovery of his unlawfully possessed guns and
ammunition. Although the search that uncovered his guns
may have been unlawful, evidence recovered can nevertheless
create probable cause sufficient to defeat subsequent claims
of malicious prosecution and unlawful arrest/imprisonment.
See Lingo v. City of Salem, 832 F.3d 953, 959–60 (9th Cir.
2016) (rejecting the argument that “probable cause to arrest
may be supported only by information that was obtained in
accordance with the Fourth Amendment”). Here, the officers
           FORTSON V. L.A. CITY ATTY’S OFFICE              11

actually knew that Fortson had guns and ammunition because
the officers found them, and the officers had reason to
believe, based on the BOF flag, that he was prohibited from
possessing them. See Dubner, 266 F.3d at 966 (“Probable
cause exists when, under the totality of the circumstances
known to the arresting officers . . ., a prudent person would
believe the suspect had committed a crime.”). The district
court properly dismissed his malicious prosecution and false
arrest claims.

    The Miranda claim also fails because the Supreme Court
has held that failure to give Miranda warnings does not create
liability in a civil rights action. Chavez, 538 U.S. at 772.

    The district court also properly dismissed Fortson’s
official-capacity claims against the Los Angeles City
Attorney’s Office, LAPD , and the BOF. The district court
correctly concluded that the BOF is immune from suit under
the Eleventh Amendment. See Will, 491 U.S. at 66. Further,
Fortson’s official-capacity claims against the LAPD also fail
because he has not sufficiently alleged an underlying
constitutional violation or otherwise identified an official
policy or custom that was the “moving force” behind a
potential constitutional violation. See Yousefian, 779 F.3d
1016; Monell, 436 U.S. at 69.

   For the foregoing reasons, the district court properly
dismissed Plaintiff’s claims.

   AFFIRMED.
