                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

KENNETH CHARLES LASSITER; ALPHA        
DORIS LASSITER,
              Plaintiffs-Appellants,
                v.                           No. 07-35848
CITY OF BREMERTON; MATTHEW
THURING; JOHN VAN SANTFORD; 1-                D.C. No.
                                           CV-05-05320-RBL
10 DOES; CLAIRE ALLISON
                                              OPINION
BRADLEY; CHRISTIAN C. CASAD;
JAMES T. MITCHELL; KITSAP
COUNTY,
            Defendants-Appellees.
                                       
       Appeal from the United States District Court
         for the Western District of Washington
       Ronald B. Leighton, District Judge, Presiding

                  Argued and Submitted
          February 4, 2009—Seattle, Washington

                  Filed February 26, 2009

     Before: Betty B. Fletcher, Pamela Ann Rymer and
            Raymond C. Fisher, Circuit Judges.

                Opinion by Judge B. Fletcher




                            2351
2354            LASSITER v. CITY OF BREMERTON




                        COUNSEL

David H. Smith, Garvey Shubert Barer, Seattle, Washington,
for the appellants.

John E. Zehnder, Jr., Scheer & Zehnder, Seattle, Washington,
for appellees Thuring and Van Santford.

Andrew G. Cooley, Keating, Bucklin & McCormack, Inc.,
P.S., Seattle, Washington, for appellee Kitsap County.

David P. Horton, WSBA, Law Office of David P. Horton, Inc.
P.S., Silverdale, Washington, for appellees City of Bremerton
and Robert Forbes.

Mark C. Jobson, Assistant Attorney General of Washington,
Olympia, Washington, for appellees Bradley, Casad, and
Mitchell.


                         OPINION

B. FLETCHER, Circuit Judge:

  Kenneth and Alpha Lassiter appeal the dismissal, by sum-
mary judgment and by jury verdict, of their lawsuit against
                    LASSITER v. CITY OF BREMERTON                       2355
the City of Bremerton, the Bremerton Police Department,
Bremerton Police Officers John Van Santford and Matthew
Thuring, the Kitsap County Prosecutor’s Office, and Kitsap
County Deputy Prosecuting Attorney (DPA) James Mitchell.
The Lassiters allege that their constitutional rights were vio-
lated by unlawful arrest, malicious prosecution, and failure to
investigate their claims. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.

                                  FACTS

   On July 25, 2003 the Lassiters’ neighbor called 911 to
report disturbing noises and threats coming from the Las-
siters’ home. She reported hearing Mr. Lassiter apparently
threatening to cut his wife’s throat, and said that she thought
Mrs. Lassiter was either tied up or locked in a room. The
neighbor went outside of the Lassiters’ home and lifted her
phone to the window. The 911 recording captured a man’s
voice saying, “Your job is to obey me. Right now.”; “I will
hurt you.”; and, “You’re too fucking close that’s it. That’s
your own fucking throat and you’re not going to cut mine.”

   The 911 operator called officers Thuring and Van Santford
to investigate a possible domestic violence assault. The opera-
tor told them that the male had made threats to cut the
female’s throat, and that the female was yelling for the male
to let go of her. The officers arrived at the scene in uniform.
They could hear a male inside yelling.1 They went to the door
and knocked at least three different times, announcing them-
selves as police officers and directing the occupants to come
to the door. Finally Mrs. Lassiter came to the door, peered out
from behind it, and said there was no problem and there was
nobody else in the house.
   1
     The police officers told the Lassiters and stated in their reports that
they heard a male voice yell, “Stay away from the window and don’t say
anything.” The Lassiters allege that this is a lie and that Mr. Lassiter never
said that. This court has not relied upon this disputed fact in reaching its
decision.
2356            LASSITER v. CITY OF BREMERTON
   The officers entered the house and encountered Kenneth
Lassiter standing between the living room and the kitchen. As
the officers entered (or just prior), Mr. Lassiter activated a
tape recorder. From that moment on, the verbal exchange was
captured on tape.

    Van Santford: What’s going on?

    Kenneth Lassiter: Nothing.

    Van Santford: Nothing? We’re standing out here.
    You’re yelling and screaming all over town. Why
    don’t you have a seat here for me?

    Kenneth Lassiter: No. I’m not here to discuss this
    with you.

    Van Santford: Okay. Have a seat. We’re investigat-
    ing a possible assault, okay? We’re not leaving.

    Kenneth Lassiter: Ahhh. . . .

    Van Santford: Have a seat here. Sir, I’m not gonna
    tell you again. [.393 second erasure in tape] We’re
    not playing games with you.

    Kenneth Lassiter: Ah . . . who are you? Hold it!

    Van Santford: I’m a police officer.

    Kenneth Lassiter: No . . . Get your hands off me.
    What are you doing?

At this point, Van Santford had placed his hand on Kenneth
Lassiter, ostensibly to guide him to a chair. But Mr. Lassiter
reacted and grabbed the officer’s arm, at which point Van
Santford pushed him to the floor and handcuffed him. Mrs.
Lassiter protested the treatment of her husband, repeatedly
                   LASSITER v. CITY OF BREMERTON                     2357
saying, “This is our problem.” The officers took Mr. Lassiter
to the county jail, booking him for assault, obstructing a
police officer, and resisting arrest. They left Mrs. Lassiter at
home, but their report requested that she as well as Mr. Las-
siter be charged with obstruction of a police officer.

   The parties dispute several facts involved in the incident.
The Lassiters dispute whether Mr. Lassiter was moving
towards the kitchen as the officers told him to sit down. They
also dispute whether Mrs. Lassiter physically interfered with
the officers’ attempt to control Mr. Lassiter.2 Finally, in their
reports, both officers stated that they repeatedly told Mr. Las-
siter to stop or to stop and sit down. The tape reveals that
what the officers said repeatedly was “sit down.” It is possi-
ble, however, that the brief gap on the tape erased Van Sant-
ford’s command to “stop.”

   On July 28, 2003 the Kitsap County Prosecutor’s Office
charged both of the Lassiters with obstruction of a police offi-
cer, and Mr. Lassiter with resisting arrest. The prosecuting
attorney was defendant Claire Bradley.3 This criminal prose-
cution was still pending over a year later when the Lassiters
filed a claim for damages against the City of Bremerton. In a
letter dated October 15, 2004, the Lassiters revealed the exis-
tence of the tape, and claimed that it proved that officers Van
Santford and Thuring had committed perjury and false swear-
ing in their reports. This allegation was based principally on
the difference between the command to “stop” as narrated in
the officers’ reports, and the commands to “sit down” as
heard on the tape. Three days later, the criminal prosecutions
against the Lassiters were dismissed.
  2
    The transcript of the tape recording shows continual verbal protests by
Alpha Lassiter, and repeated requests by the officers that she calm down
and sit down.
  3
    The Lassiters have not appealed the dismissal of their claim against
DPA’s Bradley or Casad.
2358               LASSITER v. CITY OF BREMERTON
   The Chief of Police, defendant Robert Forbes, referred the
allegations against the officers to the Washington State Patrol
for an independent investigation. He also placed both officers
on administrative leave pending the outcome of the investiga-
tion. In December 2004, the State Patrol issued its report
clearing the officers of false swearing and perjury. The report
also revealed that the tape had been altered and identified a
.393 second gap where officer Van Santford may have used
the word “stop.” Chief Forbes reinstated the officers, and
informed them that the department would not pursue an inter-
nal investigation.

  On May 16, 2005 the Lassiters filed the instant lawsuit
against the City of Bremerton and eight other defendants.
Nine days later Kenneth Lassiter was charged with tampering
with physical evidence, obtaining a signature by deception or
duress,4 and obstructing a law enforcement officer. Deputy
prosecutor James Mitchell had taken over for Claire Bradley;
he signed the Certification for Determination of Probable
Cause which accompanied the charges. This prosecution was
subsequently dismissed for lack of evidence.

   In this case, the district court dismissed on summary judg-
ment all state law claims against Kitsap County, Police Chief
Forbes, and the individual prosecutors. All federal claims
against the City were also dismissed. The court submitted the
state law claims against the City and officers Thuring and Van
Santford for excessive force, assault and battery, and inflic-
tion of emotional distress to the jury. It had previously ruled
in a summary judgment order that the officers were entitled
to qualified immunity for their warrantless entry into the Las-
siters’ home, and that the arrests of Mr. and Mrs. Lassiter
were lawful. Accordingly, the court instructed the jury that it
should assume the entry into the Lassiters’ home and the
  4
   The theory of this charge is that Kenneth Lassiter had obtained dis-
missal of the first criminal prosecution by use of false evidence; i.e.,
deception.
                 LASSITER v. CITY OF BREMERTON              2359
arrest of Mr. Lassiter were lawful. The jury returned a verdict
for the defendants on all remaining claims.

                        DISCUSSION

   We review a district court’s summary judgment orders de
novo. Mackinney v. Nielsen, 69 F.3d 1002, 1004 (9th Cir.
1995). We give deference to a jury verdict, reviewing all evi-
dence on appeal of those claims “in the light most favorable
to the verdict.” Larez v. City of Los Angeles, 946 F.2d 630,
634 (9th Cir. 1991).

A.   Probable Cause to Arrest Mr. Lassiter

   The heart of the Lassiters’ case is their 42 U.S.C. § 1983
claim that the police arrested Kenneth Lassiter for obstruction
without probable cause, violating his Fourth Amendment
rights. We agree with the district court that the police did have
probable cause, and affirm the dismissal of this claim.

  [1] Probable cause exists when the facts and circumstances
within the officer’s knowledge are sufficient to cause a rea-
sonably prudent person to believe that a crime has been com-
mitted. Ybarra v. Illinois, 444 U.S. 85, 91 (1979). The crime
of obstructing an officer has four essential elements: 1) an
action or inaction that hinders, delays, or obstructs the offi-
cers; 2) while the officers are in the midst of their official
duties; 3) the defendant knows the officers are discharging a
public duty; 4) the action or inaction is done knowingly.
WASH. REV. CODE § 9A.76.020.

   [2] Regardless of whether Van Santford said the word
“stop” and whether Kenneth Lassiter physically moved
toward the kitchen, the undisputed facts are sufficient to con-
clude that the officers had probable cause. They entered a
potential domestic violence scene with information that Mr.
Lassiter had threatened to cut his wife’s throat. The couple
was obviously reluctant to open the door, and when Alpha
2360            LASSITER v. CITY OF BREMERTON
Lassiter eventually did open the door she attempted to hide
herself behind it and lied to the officers that no one else was
home. Given this background, it was reasonable for the offi-
cers to insist that Kenneth Lassiter sit down in the living
room, away from any possible weapons, before the police
could carry out their duty to ensure that Mrs. Lassiter was not
in harm’s way. But Mr. Lassiter’s conduct made it impossible
for the police to carry out their duty. More than just a momen-
tary noncompliance with police orders, his conduct had the
practical effect of precluding the officers from securing the
scene and investigating a possible assault. Mr. Lassiter’s con-
duct is therefore distinguishable on this critical issue from
cases in which we have held that no probable cause existed
to arrest for an obstruction offense. See Palmer v. Sanderson,
9 F.3d 1433, 1437 (9th Cir. 1993) (holding that, if plaintiff
agreed to answer officer’s questions, accompany officer to
station and submit to a breath test, “no reasonable officer
could believe that there was probable cause to arrest [plain-
tiff] for ‘obstructing a public servant,’ ” even when plaintiff
left the scene of a traffic stop); Mackinney, 69 F.3d at 1006
(finding no probable cause to arrest for obstruction based on
“momentary disobedience” because no real obstruction
occurred). Additionally, the tape shows that Kenneth Lassiter
knew that Thuring and Van Santford were police officers and
that they were in his home to investigate a possible assault
because they told him as much. Therefore, we agree with the
district court that there remains no triable issue of material
fact as to whether the officers had probable cause to arrest Mr.
Lassiter for obstruction.

   The Lassiters also claim that Mrs. Lassiter was unlawfully
arrested for obstruction of an officer without probable cause.
This claim is without merit because Mrs. Lassiter was never
arrested.

   Accordingly, we affirm the grant of summary judgment in
favor of the officers, and hold that the district court’s jury
instruction on lawful arrest was not error.
                    LASSITER v. CITY OF BREMERTON                       2361
B.    Malicious Prosecution

   The Lassiters appeal the dismissal of their malicious prose-
cution claim against Deputy Prosecutor Mitchell and his
employer, Kitsap County.5 This claim stems from the second
criminal prosecution of Mr. Lassiter, which charged him with
tampering with physical evidence, obtaining a signature by
deception or duress, and obstructing law enforcement, and
was dismissed for insufficient evidence. The Lassiters aver
that Mitchell signed a Certification of Probable Cause for this
prosecution when there was no probable cause, in order to
coerce the Lassiters into dropping their civil suit against the
City.6

   [3] Malicious prosecution has five elements under Wash-
ington law: 1) the defendant began or continued a prosecu-
tion; 2) without probable cause; 3) with malice; 4) in a
proceeding terminated in the plaintiff’s favor; 5) to plaintiff’s
injury. Clark v. Baines, 84 P.3d 245, 248-49 (Wash. 2004). In
order to prevail on a § 1983 claim of malicious prosecution,
a plaintiff “must show that the defendants prosecuted [him]
with malice and without probable cause, and that they did so
for the purpose of denying [him] equal protection or another
specific constitutional right.” Freeman v. City of Santa Ana,
68 F.3d 1180, 1189 (9th Cir. 1995) (citation omitted). We
  5
     In this 42 U.S.C. § 1983 action, the Lassiters raise malicious prosecu-
tion claims under both state and federal law. The Lassiters also claim on
appeal that the second prosecution violated his due process rights under
Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc), but we do
not consider this claim because it was not raised in the district court. Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
   6
     A prosecutor is not entitled to absolute immunity when acting “as a
complaining witness” in presenting a judge with a complaint and support-
ing affidavit in which the prosecutor personally attests to facts to establish
probable cause to arrest. Kalina v. Fletcher, 522 U.S. 118, 127, 129-31
(1997). Mitchell may still be entitled to qualified immunity, but we find
it unnecessary to reach this issue in light of our conclusion that there was
no malicious prosecution.
2362             LASSITER v. CITY OF BREMERTON
agree with the district court that defendants are entitled to
summary judgment on this issue, because Mitchell had proba-
ble cause to initiate the prosecution.

   [4] Mitchell relied on the reports of the Washington State
Patrol and of officers Thuring and Van Santford, all of which
were signed under oath. The State Patrol report revealed that
the tape had been altered, giving rise to probable cause for the
tampering and deception charges. Further, the re-initiation of
the obstruction charge was not unreasonable simply because
the first prosecution was dismissed. The manipulation of the
tape gave Mitchell reason to believe that the first dismissal
was obtained under false pretenses and therefore might be
vacated by the superior court. Finally, Mitchell’s failure to
notify the court that he had not yet obtained leave to refile the
obstruction charge was a reasonable mistake and does not
bear upon probable cause. Similarly, Mitchell’s mistaken
statement that Mr. Lassiter, rather than Mrs. Lassiter, opened
the door was reasonable and did not affect whether his prose-
cution had probable cause.

  Although it is doubtful that the Lassiters presented evi-
dence of malice, it is unnecessary for us to reach this element
because probable cause is an absolute defense to malicious
prosecution. Clark, 84 P.3d at 249; Freeman, 68 F.3d at 1189.

  [5] Accordingly, we affirm the dismissal of both the federal
and state law malicious prosecution claims against Mitchell
and Kitsap County.

C.     Unlawful Entry

   The Lassiters’ briefs to this Court argued that the district
court erred by instructing the jury to assume that the officers’
warrantless entry into their home was lawful. However, at
oral argument the Lassiters’ counsel conceded that the entry
was lawful. Therefore, there was no error in this jury instruc-
tion.
                 LASSITER v. CITY OF BREMERTON              2363
D.   Failure to Investigate

   The Lassiters contend that the district court erred in dis-
missing the excessive force and unlawful arrest claims against
Chief Forbes and the City, on the grounds that the Chief con-
doned such behavior or ratified an official custom or policy
of allowing it. As evidence of this ratification, the Lassiters
cite his failure to adequately investigate their claims. The City
is liable on this theory as the employer of the officers and of
Chief Forbes.

   [6] Under Monell v. Department of Social Services, 426
U.S. 658 (1978), the Lassiters must show that the Bremerton
Police Department has a custom or policy of tolerating and
allowing unlawful arrests and arrests with unreasonable force.
Forbes’ decision not to pursue the investigation of the Las-
siters’ claims does not evince such a policy. A single decision
by a municipal policymaker “may be sufficient to trigger Sec-
tion 1983 liability under Monell, even though the decision is
not intended to govern future situations,” but the plaintiff
must show that the triggering decision was the product of a
“conscious, affirmative choice” to ratify the conduct in ques-
tion. Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992)
(citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81,
483-84 (1986)).

   [7] Here, Chief Forbes decided not to pursue an internal
investigation after the Washington State Patrol cleared offi-
cers Thuring and Van Santford of the false swearing and per-
jury charges. However, his decision was also based on his
conclusion that the officers had not violated Department pol-
icy. Thus, this single decision not to pursue an additional
investigation into the specific arrest claims cannot be fairly
characterized as an affirmative choice to ratify the alleged
conduct, since he believed they had not engaged in such con-
duct. Moreover, the jury acquitted both officers of the exces-
sive force charges, and on appeal the evidence regarding those
claims must be viewed “in the light most favorable to the ver-
2364             LASSITER v. CITY OF BREMERTON
dict.” Larez v. City of Los Angeles, 946 F.2d 630, 634 (9th
Cir. 1991). The jury’s verdicts thus lend support to Forbes’
conclusion that the officers had not violated Department pol-
icy. Therefore, Chief Forbes is not liable on the Lassiters’
claims in either his official or individual capacity. Id. at 645-
46.

   The district court’s dismissal of the § 1983 claims against
Chief Forbes and the City for excessive force and unlawful
arrest is therefore affirmed.

                        CONCLUSION

   We affirm the district court’s dismissal of the Lassiters’
claims on summary judgment, and find no error in the court’s
jury instructions.

  AFFIRMED.
