                                                                              FILED
                            NOT FOR PUBLICATION                               MAY 04 2011

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



                            FOR THE NINTH CIRCUIT


HALEMA BUZAYAN; et al.,                          No. 10-15577

              Plaintiffs - Appellees,            D.C. No. 2:06-cv-01576-MCE-
                                                 DAD
  v.

CITY OF DAVIS POLICE                             MEMORANDUM*
DEPARTMENT; et al.,

              Defendants- Appellants,

  and

STEVEN PIERCE; et al.,

              Defendants.


                   Appeal from the United States District Court
                      for the Eastern District of California
                  Morrison C. England, District Judge, Presiding

                            Submitted April 12, 2011**
                               Pasadena, California

Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.

        *
             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).
      Plaintiff Halema Buzayan brought suit under 42 U.S.C. § 1983 against

several defendants, including City of Davis police officers Pheng Ly and Ben

Hartz (“individual defendants”), after she was arrested for an alleged misdemeanor

hit-and-run. Buzayan alleged numerous violations, including that the arrest was a

violation of her Fourth Amendment rights and of her rights under the Equal

Protection Clause. The defendants brought a motion for partial summary

judgment, asserting that there was probable cause for the arrest, that discriminatory

intent was lacking, and that the officers were entitled to qualified immunity as to

the Fourth Amendment probable cause claim because a reasonable officer could

have believed that there was probable cause to arrest Buzayan. The district court

denied the motion for partial summary judgment in its entirety. The individual

defendants filed an interlocutory appeal challenging the district court’s denial of




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qualified immunity as to the probable cause claim.1 We have jurisdiction because

“a district court’s denial of a claim of qualified immunity, to the extent that it turns

on an issue of law, is an appealable final decision within the meaning of 28 U.S.C.

§ 1291.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (internal quotation marks

omitted). The denial of qualified immunity here turns on a question of law,

because “the question of whether a reasonable officer could have believed probable

cause . . . existed to justify a search or an arrest is ‘an essentially legal question.’”

ActUp!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993) (quoting Forsyth,

472 U.S. at 526).

       In analyzing qualified immunity, we employ a two-prong analysis; we

determine whether the facts “show the officer’s conduct violated a constitutional

right,” and “whether the right was clearly established” at the time of the alleged



       1
       The individual defendants sought qualified immunity in the district court
only as to Buzayan’s Fourth Amendment probable cause claim. The individual
defendants also assert that this court has pendent jurisdiction over other parties,
including the City of Davis, and other issues, including the merits of the probable
cause and equal protection claims, and a state law false imprisonment claim. We
have jurisdiction over issues and parties that are “inextricably intertwined” with the
issue properly raised on interlocutory appeal. See Batzel v. Smith, 333 F.3d 1018,
1023 (9th Cir. 2003). The defendants argue that the pendent issues are
“necessarily resolved” by resolution of the limited qualified immunity issue. We
have, however, interpreted what is inextricably intertwined “very narrowly,” and
we determine that none of the pendent issues or parties are “inextricably
intertwined” with the one issue over which we do have jurisdiction. See id.

                                            3
unlawful action. See Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part

by Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). In this case, we exercise our

“sound discretion,” and decide the qualified immunity issue on the second prong of

the analysis, whether the right was clearly established. See Pearson, 129 S. Ct. at

818. Therefore, we “decline to determine whether the police had sufficient

probable cause to arrest” Buzayan. Crowe v. Cty. of San Diego, 608 F.3d 406, 433

(9th Cir. 2010). Instead, we hold that the right was not clearly established; even if

the officers were mistaken in their conclusion that probable cause existed, a

reasonable officer could have believed that there was probable cause to arrest

Buzayan for misdemeanor hit-and-run.2 See id. at 433-34. Therefore, we reverse

the district court’s denial of qualified immunity as relates to Buzayan’s Fourth

Amendment probable cause claim.3

      REVERSED and REMANDED.


      2
         As a result of this determination, we need not reach defendants’ alternate
argument that there was probable cause to arrest Buzayan for two other crimes; we
also do not need to decide whether defendants waived that argument by failing to
raise it below.
      3
        We do not reach any other claims, including Buzayan’s claim that the
warrantless arrest in her home violated her Fourth Amendment rights. As
discussed above, we have jurisdiction over one limited issue only: whether the
officers were entitled to qualified immunity as to the probable cause claim. See
supra note 1. We do not reach any of the other Fourth Amendment or equal
protection claims.

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