                                                                           FILED
                           NOT FOR PUBLICATION                             APR 23 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RAMON JOSE VASQUEZ,                              No. 12-17413

              Plaintiff - Appellant,             D.C. No. 5:10-cv-00948-EJD

     v.
                                                 MEMORANDUM*
BRIAN FERRANTE, individually and as
an officer of the San Jose Police
Department; TOM MORALES,
individually and as an officer of the San
Jose Police Department,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward J. Davila, District Judge, Presiding

                            Submitted April 17, 2015 **
                             San Francisco, California




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
       The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Before: TROTT and GRABER, Circuit Judges, and RESTANI, Judge.**

      Ramon Jose Vasquez contests the district court’s grant of summary

judgment in favor of the law enforcement appellees in this action brought pursuant

to 42 U.S.C. §§ 1981 and 1983 for wrongful arrest and subsequent detention

without probable cause. We have jurisdiction over this timely appeal pursuant to

28 U.S.C. § 1291, and we affirm.

      The officers had probable cause to arrest Vasquez, causing him to be held in

jail for five months. The totality of the facts and circumstances known to them

included two separate photographic identifications by witnesses at the scene.

Moreover, Vasquez generally fit many of the descriptions given before his arrest of

the person who killed Rojelio Silva during the confrontation outside of In-N-Out

Burger; Vasquez was the part-owner of a distinctive vehicle identified as being at

the location of the shooting; and he was previously involved in a criminal incident

suggesting association with Norteño gang members.

      The factors Vasquez claims negate probable cause do not. As Judge Davila

noted, they were irrelevant or immaterial. See Hervey v. Estes, 65 F.3d 784, 788-

90 (9th Cir. 1995). Also, Vasquez mistakenly attributes one of those factors --



      **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.

                                         -2-
Vasquez’s “documented” gang association -- to Sgt. Morales in his application for

an arrest warrant. The statement of which Vasquez complains was made in an

application for a search warrant made by Sgt. Ferrante. The search warrant has

nothing to do with Vasquez’s complaint.

      In fine, there are no falsehoods in this case attributable to Sgt. Morales, the

arresting officer, and no indication whatsoever of a reckless disregard for the truth.

      Vasquez’s subsequent vindication by the court is of no consequence to what

went on before. The Supreme Court said in Illinois v. Wardlow, 528 U.S. 119, 126

(2000), “Indeed, the Fourth Amendment accepts [the risk of detaining innocent

people in a Terry stop] in connection with more drastic police action; persons

arrested and detained on probable cause to believe they have committed a crime

may turn out to be innocent.”

      AFFIRMED.




                                          -3-
