                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                             FOR THE NINTH CIRCUIT                            MAR 21 2014

                                                                          MOLLY C. DWYER, CLERK
FRANCISCO CORTEZ,                                No. 12-56924               U.S. COURT OF APPEALS



                Plaintiff - Appellant,           D.C. No. 3:10-cv-01473-CAB-
                                                 WMC
  v.

UNITED STATES OF AMERICA,                        MEMORANDUM*

                Defendant - Appellee.

                     Appeal from the United States District Court
                        for the Southern District of California
                   Cathy Ann Bencivengo, District Judge, Presiding

                         Argued and Submitted March 4, 2014
                                      UCLA

Before:       KOZINSKI, Chief Judge, IKUTA and NGUYEN, Circuit
              Judges.

       Because this claim arises under the Federal Tort Claims Act, we apply state

law to Cortez’s false imprisonment and assault/battery claims. 28 U.S.C.

§ 1346(b)(1).




          *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                 page 2
      1. Under California law, “[t]he elements of a tortious claim of false

imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2)

without lawful privilege, and (3) for an appreciable period of time, however brief.”

Easton v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 496 (2000). The Border Patrol

agents had legal authority to refer Cortez to secondary inspection without any

individualized suspicion. See United States v. Martinez-Fuerte, 428 U.S. 543, 562

(1976); United States v. Preciado-Robles, 964 F.2d 882, 884 (9th Cir. 1992). The

trial court credited the agents’ testimony that the duration of Cortez’s detention at

secondary inspection was a direct result of his own obstruction and failure to

cooperate with their permissible follow-up questions, and that Cortez was released

once he complied with their request to produce his law enforcement credentials.

Cortez has failed to show that this credibility determination was clearly erroneous.

See Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir. 2013).


      2. To make out a claim for assault/battery against the Border Patrol agents,

Cortez must establish that they used unreasonable force to detain him. Cal. Penal

Code § 835a; Edson v. City of Anaheim, 63 Cal. App. 4th. 1269, 1272–73 (1998);

Judicial Council of Cal., Civ. Jury Instr. § 1305. Because we find that Cortez’s

detention at secondary inspection was proper, we need not address his argument
                                                                             page 3
that the use of any force to effect that detention was per se unreasonable. Nor do

we find the “‘guided’ extraction” of Cortez from his vehicle or the assumption of a

“bladed stance” by a nearby officer during this process to be unreasonable under

the circumstances.


      AFFIRMED.
