NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 11 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

APRIL HENRIETTA RIVERA, No. 18-16468

Plaintiff-Appellant, D.C. No. 4:16-cv-00164-CKJ

v.

MEMORANDUM*

TOWN OF PATAGONIA, an Arizona municipality; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Submitted February 7, 2020** Arizona State University, Phoenix, Arizona

Before: TASHIMA, HURWITZ, and MILLER, Circuit Judges.

April Rivera appeals from the summary judgment entered in favor of the

Town of Patagonia, Marshal Joseph Patterson, and Deputy Marshal Ronald Davis

on Rivera’s claims under 42 U.S.C. § 1983 and Arizona law. Rivera argues that

* 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). local law enforcement violated her Fourth Amendment rights through a series of

arrests and citations that lacked probable cause. We have jurisdiction under 28

U.S.C. § 1291. We review de novo, considering the evidence in the light most

favorable to Rivera. See Gordon v. County of Orange, 888 F.3d 1118, 1122 (9th

Cir. 2018). We affirm.

1. We agree with the district court that law enforcement officials had

probable cause each time they arrested or cited Rivera. Probable cause exists when

“the facts and circumstances within the officer’s knowledge are sufficient to

warrant a prudent person to believe ‘that the suspect has committed, is committing,

or is about to commit an offense.’” Barry v. Fowler, 902 F.2d 770, 773 (9th Cir.

1990) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). Probable cause

does not require certainty of criminal conduct, but only “a fair probability, given

the totality of the circumstances.” United States v. Lopez, 482 F.3d 1067, 1078 (9th

Cir. 2007).

During a three-month period in 2014, Rivera had several significant contacts

with law enforcement, beginning with her arrest on March 15 for disorderly

conduct after Rivera hit her ex-husband in the head with a bottle during a domestic

altercation. Rivera does not contest the validity of her March 15 arrest, but argues

that many of the later arrests and citations lacked probable cause. We agree with

2 the district court that, for each challenge, Rivera has not shown a genuine factual

dispute material to the existence of probable cause.

For example, with respect to Rivera’s April 2 citation for interfering with a

court order, it is undisputed that officers understood that Rivera had approached

her ex-husband at their shared workplace, and persisted in approaching him during

his one-time visit to retrieve belongings from their formerly shared residence,

despite direction from law enforcement to avoid contact. These contacts violated

the conditions of Rivera’s release from jail for the March 15 offense and were

contrary to instructions from law enforcement present at the time. The officers had

probable cause to cite Rivera for a violation of Ariz. Rev. Stat. § 13-2810(A)(2),

which prohibits the knowing resistance of a court order.

For Rivera’s April 19 citation, it is undisputed that Rivera repeatedly called

911 without informing the dispatcher of an emergency. That conduct provided

probable cause that Rivera was committing a crime. See Ariz. Rev. Stat. § 40-

340(C). Because the inquiry into probable cause is an objective one, it is irrelevant

that law enforcement issued a citation to Rivera under different statutory

provisions. See Edgerly v. City & County of San Francisco, 599 F.3d 946, 954 (9th

Cir. 2010); see also Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

Rivera also argues that Patterson lacked probable cause when on April 19 he

instructed her to vacate the mobile home where she resided, or be arrested for

3 criminal trespass. But Rivera does not contend that she was arrested for criminal

trespass.

Rivera does not contest her April 19 arrest for driving under the influence,

but argues that law enforcement then impounded her car without authority. That is

incorrect. Rivera’s car was ultimately towed incident to her arrest for driving under

the influence, as permitted by Arizona law. See Ariz. Rev. Stat. § 28-872(C)(3).

As for Rivera’s arrest on June 17 for driving with a suspended license,

resisting arrest, and other violations, the record shows that officers reasonably

understood that Rivera’s license was suspended at that time. Law enforcement

therefore had probable cause to cite Rivera. See Ariz. Rev. Stat. § 28-3473(A). Her

conduct during the traffic stop provided probable cause for other violations. See,

e.g., id. § 13-2508(A)(3) (resisting arrest).

For each arrest or citation, Rivera does not show that exculpatory evidence,

ignored by the officers, would definitively “negate a finding of probable cause.”

Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015) (quoting

Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003)). A reasonable jury could

not find that the facts known to law enforcement were insufficient to establish

probable cause.

2. Even assuming that law enforcement lacked probable cause to arrest

or cite Rivera for any of the incidents, the officers are entitled to qualified

4 immunity because they “reasonably but mistakenly conclude[d] that probable

cause [wa]s present.” District of Columbia v. Wesby, 138 S. Ct. 577, 591 (2018)

(quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Because a reasonable

officer “could have interpreted the law as permitting the arrests” and citations, see

id. at 593, summary judgment was appropriate.

3. Rivera raised a variety of other claims below but has not preserved

them on appeal. Generally, we do not consider issues that a party does not

specifically raise and support by argument in the opening brief, and we find no

reason to depart from that practice here. See France v. Johnson, 795 F.3d 1170,

1175 (9th Cir. 2015); see also Fed. R. App. P. 28(a)(8).

AFFIRMED.

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