                                                                              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                           NOT FOR PUBLICATION                                APR 11 2012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




                                          3
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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