                                                                                FILED
                            NOT FOR PUBLICATION                                  JUL 13 2011

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



                            FOR THE NINTH CIRCUIT


                                                  No. 10-35009
LEONARD N. BROWNING,
                                                  D.C. No. 2:07-cv-00286-CI
              Plaintiff - Appellant,
  v.
                                                  MEMORANDUM*
PEND OREILLE COUNTY SHERIFF’S
DEPARTMENT; G. W. BARRETT,

              Defendants - Appellees.


                     Appeal from the United States District Court
                        for the Eastern District of Washington
                    Cynthia Imbrogno, Magistrate Judge, Presiding

                            Submitted March 22, 2011**

Before: SKOPIL, FARRIS, and LEAVY, Circuit Judges.

       Leonard Browning appeals a summary judgment order and an adverse jury

verdict in his pro se civil rights action alleging false arrest and use of excessive

force. We affirm.



        *
             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).
                                  DISCUSSION

1.    False Arrest

      To prevail on his claim for false arrest, Browning was required to

demonstrate “there was no probable cause to arrest him.” See Norse v. City of

Santa Cruz, 629 F.3d 966, 978 (9th Cir. 2010) (en banc) (internal quotation marks

omitted). “Probable cause exists when the facts and circumstances within the

officer’s knowledge are sufficient to cause a reasonably prudent person to believe

that a crime has been committed.” Lassiter v. City of Bremerton, 556 F.3d 1049,

1053 (9th Cir. 2009).

      Here, the arresting officer was properly granted summary judgment because

probable cause supported Browning’s arrest for refusing to cooperate and resisting

arrest. Browning did not cooperate, responded with profanity, engaged in

aggressive and threatening behavior toward the arresting officer, and attempted to

walk away during the questioning. The arresting officer’s violation of state law

when he arrested Browning does not constitute a Fourth Amendment violation.

See Martinez-Medina v. Holder, 2011 WL 855791 *7 (9th Cir. Mar. 11, 2011)

(citing Virginia v. Moore, 553 U.S. 164. 177-78 (2008)).

      The responding officers were also entitled to summary judgment because

they were not present and did not participate in the arrest. Hopkins v. Bonvicino,

573 F.3d 752, 774 (9th Cir. 2009), cert. denied, 130 S. Ct. 2342 (2010). Finally,

                                        -2-
because there is no constitutional violation, there can be no “municipal liability”

for the county defendant. See Long v. City and County of Honolulu, 511 F.3d 901,

907 (9th Cir. 2007).

2.    Excessive Force

      “An excessive-force claim that arises in the context of an arrest is properly

characterized as one invoking the protections of the Fourth Amendment.” Norse,

629 F.3d at 978. The Fourth Amendment does not, however, “prohibit a police

officer’s use of reasonable force during an arrest.” Tatum v. City and County of

San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006). Rather, the officer’s actions

must be “objectively reasonable” in light of all the facts and circumstances,

“including whether the suspect was resisting arrest.” Id.

      The district court properly granted summary judgment to the responding

officers because they did not witness the alleged excessive force or have any

opportunity to prevent the use of force. See Hopkins, 573 F.3d at 777 (affirming

summary judgment on excessive force claim for officer who did not participate in

the arrest). Because those officers did not violate Browning’s constitutional rights,

the claim against the county employer also fails. See Gregory v. County of Maui,

523 F.3d 1103, 1109 (9th Cir. 2008) (“Because we conclude that the officers did

not use excessive force in violation of the Fourth Amendment, [the] claims against

the county also fail.”).

                                         -3-
      A jury rejected Browning’s claim of excessive force against the arresting

officer. Browning argues he did not receive a fair trial because the district court

excluded evidence regarding the legality of the arrest and instructed the jury that an

individual does not have a right to resist even if the arrest is unlawful. We reject

those arguments. The district court did not abuse its discretion when it excluded

evidence the arresting officer lacked authority under Washington law to arrest

Browning because this evidence was irrelevant to the question whether the

arresting officer used excessive force. Moreover, the court correctly ruled and

appropriately instructed the jury that Browning was not entitled to resist the arrest.

See Luchtel v. Hagemann, 623 F.3d 975, 981 (9th Cir. 2010) (“A person does not

have the right to resist arrest even if the charges are false or the arrest unlawful.”)

(internal parenthetical and quotation marks omitted). To the extent the court’s

rulings constituted a modification of the pretrial order, there was no abuse of

discretion. See Hoffman v. Tonnemacher, 593 F.3d 908, 912 (9th Cir. 2010)

(noting standard of review); Mechmetals Corp. v. Telex Computer Products, Inc.,

709 F.2d 1287, 1294 (9th Cir. 1983) (noting “pretrial order is not an inexorable

decree and may, under proper circumstances, be modified”).

      AFFIRMED.




                                           -4-
