                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 11 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KENT DAVIS,                                      No. 10-55043

             Plaintiff - Appellant,              D.C. No. 5:08-cv-01262-SVW-SS

  v.
                                                 MEMORANDUM *
COUNTY OF SAN BERNARDINO; SAN
BERNARDINO SHERIFF’S
DEPARTMENT; STEVE SPEAR,

             Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                        Argued and Submitted June 8, 2011
                              Pasadena, California

Before: B. FLETCHER, and N.R. SMITH, Circuit Judges, and R. BREWSTER,
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Rudi M. Brewster, Senior United States District Judge
for the Southern District of California, sitting by designation.
      Kent Davis appeals the district court’s conclusion of law, following a bench

trial, that the sheriff had probable cause to arrest him for willfully resisting,

delaying, or obstructing a peace officer in the discharge of his duties in violation of

Cal. Penal Code §148(a)(1).

      We affirm because the sheriff had probable cause to arrest Davis based upon

Davis’ entire pattern of erratic and defiant conduct. The arrest did not punish mere

speech. The sheriff had legitimate reasons to request the car keys, including, but

not limited to, avoiding damage to the pristine vintage Cadillac during towing;

opening the trunk to check if Davis brought his firearm with him; and preventing

Davis from fleeing the scene with the car. Davis’s behavior gave the police officer

probable cause to believe that Davis obstructed the lawful exercise of authority to

impound the unregistered car. Smith v. City of Hemet, 394 F.3d 689, 696-97 (9th

Cir. 2005) (en banc) (“The acts by Smith include twice refusing to take his hands

out of his pockets, reentering the home once; repeatedly refusing to put his hands

on his head and come down the porch[;] and, finally, refusing to put his hands on

his head and turn around. Each of these acts constituted a violation of § 148(a)(1)

sufficient to warrant the filing of a criminal charge.”); cf. Mackinney v. Nielsen, 69

F.3d 1002, 1006 (9th Cir. 1995) (no probable cause under §148(a)(1) when




                                           -2-
plaintiff “refused to comply for only a few seconds” then “immediately turned

around” to see who ordered him to stop writing on sidewalk).

      AFFIRMED.




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