                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 29 2014

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



                            FOR THE NINTH CIRCUIT


JIMMY DOWNS,                                     No. 12-16579

              Plaintiff - Appellee,              D.C. No. 2:11-cv-00453-JCM-
                                                 PAL
  v.

NEVADA TAXICAB AUTHORITY and                     MEMORANDUM*
STATE OF NEVADA,

              Defendants,

  And

MICHAEL FERRIOLO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                      Argued and Submitted January 17, 2014
                            San Francisco, California

Before: O’SCANNLAIN, GRABER, and NGUYEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Michael Ferriolo appeals the district court’s order denying his motion for

summary judgment on the basis of qualified immunity. We have jurisdiction over

this interlocutory appeal pursuant to 28 U.S.C. § 1291. See Slater v. Clarke, 700

F.3d 1200, 1202-03 (9th Cir. 2012) (citing Mitchell v. Forsyth, 472 U.S. 511,

524-25 (1985)). “When evaluating a denial of summary judgment on the issue of

qualified immunity, our review is limited to the ‘purely legal issue whether the

facts alleged . . . support a claim of clearly established law.’” Alston v. Read, 663

F.3d 1094, 1098 (9th Cir. 2011) (ellipsis in original) (quoting Moran v.

Washington, 147 F.3d 839, 843 (9th Cir. 1998)). We reverse and remand.

      1.     Ferriolo is entitled to qualified immunity on Jimmy Downs’s Fourth

Amendment excessive force claim. On appeal, Downs argues neither that Ferriolo

acted with excessive force nor that Ferriolo’s conduct violates a clearly established

right to be free from excessive force. See, e.g., Tatum v. City of San Francisco,

441 F.3d 1090, 1095 (9th Cir. 2006) (“The Fourth Amendment does not prohibit a

police officer’s use of reasonable force during an arrest.” (citing Graham v.

Connor, 490 U.S. 386, 396 (1989)).

      2.     Likewise, Ferriolo is entitled to qualified immunity on Downs’s

Fourth Amendment false arrest claim. The dispositive question is “whether it is

reasonably arguable that there was probable cause for arrest” – i.e., “whether


                                          2
reasonable officers could disagree as to the legality of the arrest such that the

arresting officer is entitled to qualified immunity.” Rosenbaum v. Washoe Cnty.,

663 F.3d 1071, 1076 (9th Cir. 2011). Moreover, “the question is whether [the

defendant] had probable cause to arrest [the plaintiff] for any offense.” Tsao v.

Desert Palace, Inc., 698 F.3d 1128, 1147 (9th Cir. 2012) (citing Devenpeck v.

Alford, 543 U.S. 146, 152-54 (2004)).

      In Nevada, an individual may physically resist arrest only if the officer’s use

of force is “unlawful and excessive” and only if the arrestee “is facing imminent

and serious bodily harm at the hands of the police officer.” Batson v. State, 941

P.2d 478, 481 n.2, 483 & n.3 (Nev. 1997); see also State v. Lisenbee, 13 P.3d 947,

951 (Nev. 2000) (“[T]here is public policy that supports courts of law determining

the lawfulness of seizures or arrests rather than by the subjective intent of

[arrestees].” (citing Nev. Rev. Stat. § 199.280)).

      Downs does not dispute that he physically resisted Ferriolo’s attempt to

arrest him. Even if Ferriolo’s use of force was unlawful, Downs does not contend

that it was excessive. Nor does Downs argue that he was facing imminent and

serious bodily harm. Accordingly, it is reasonably arguable that there was




                                           3
probable cause for Ferriolo to arrest Downs for a violation of Nevada Revised

Statutes section 199.280.1

      REVERSED and REMANDED.




      1
         In reaching this conclusion, we do not find that Ferriolo had probable cause
to arrest Downs for delaying the investigation or for disobeying Ferriolo’s order to
come down from the booth. But, as noted above, the question is whether it is
reasonably arguable that there was probable cause for arrest for “any offense.”
Tsao, 698 F.3d at 1147.
                                          4
