NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 7 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANNI MA, No. 17-56544

Plaintiff-Appellant, D.C. No. 2:16-cv-05819-DMG-RAO v.

CITY OF LOS ANGELES; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Submitted March 5, 2019** Pasadena, California

Before: FERNANDEZ and OWENS, Circuit Judges, and DONATO,*** District Judge.

Plaintiff Anni Ma appeals from the district court’s order granting summary

judgment to Defendants City of Los Angeles (City), Los Angeles Police

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. Department (LAPD), and individual police officers in Ma’s 42 U.S.C. § 1983

action arising from her arrest for the indecent exposure of her bare breasts and

nipples. As the parties are familiar with the facts, we do not recount them here.

We affirm.

Ma argues that the district court erred in granting summary judgment to the

individual officers because they violated her constitutional right to be free from

false arrest. In the context of an unlawful arrest, officers are entitled to qualified

immunity if it is at least “reasonably arguable that there was probable cause for

arrest.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011). Here,

the officers had “reasonably arguable” probable cause to arrest Ma because

“reasonable officers could disagree” as to whether California Penal Code section

314(1)’s prohibition on the exposure of “private parts” includes female breasts and

nipples. See id.

Ma also contends that the district court erred in granting summary judgment

to the City and LAPD—entities that “may not be held liable under 42 U.S.C.

§ 1983, unless a policy, practice, or custom of the entity can be shown to be a

moving force behind a violation of constitutional rights.” Dougherty v. City of

Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citation omitted). For the first time on

appeal, Ma argues that the City and LAPD acted with deliberate indifference

towards her constitutional rights by incorrectly training officers that section 314(1)

2 applies to female breasts and nipples. We decline to exercise our discretion to

consider Ma’s waived argument, in part because it “depend[s] on the factual record

developed below,” which has not been fully developed. In re Mercury Interactive

Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010).

AFFIRMED.

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