Sharp v. Larriva, 022019 FED9, 17-56362

Docket Nº:17-56362
Party Name:TIMOTHY SHARP, Plaintiff-Appellee, v. RAY LARRIVA, Defendant-Appellant.
Judge Panel:Before: RAWLINSON, HURWITZ, and MELLOY, Circuit Judges.
Case Date:February 20, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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TIMOTHY SHARP, Plaintiff-Appellee,

v.

RAY LARRIVA, Defendant-Appellant.

No. 17-56362

United States Court of Appeals, Ninth Circuit

February 20, 2019

NOT FOR PUBLICATION

Argued and Submitted November 9, 2018

Appeal from the United States District Court for the Central District No. 2:16-cv-02097-AB-KS of California Andre Birotte, Jr., District Judge, Presiding

Before: RAWLINSON, HURWITZ, and MELLOY, [**] Circuit Judges.

MEMORANDUM [*]

Ray Larriva, a City of El Monte detective, appeals a district court order denying his motion seeking summary judgment based on qualified immunity. We have jurisdiction of this interlocutory appeal under the "collateral order" doctrine of 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Our review is limited, however, to determining whether "the facts, even when considered in the light most favorable to the plaintiff, show no violation of a constitutional right, or no violation of a right that is clearly established in law." Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938, 945 (9th Cir. 2017) (internal quotation omitted). Applying that standard of review, we affirm.

1. Larriva first contends that he had - or reasonably believed that he had - probable cause to arrest Sharp for possession of illegal fireworks for sale and for assault on a police officer. But, the facts taken "in the light most favorable to the plaintiff," id., establish only that Sharp had limited access to the property where illegal fireworks were found, another person at that property admitted to the offense Larriva was investigating, Larriva arrested that person (who was later charged with the offense), and Sharp had a prior arrest for a fireworks violation. These facts are insufficient under controlling Supreme Court precedent to establish either probable cause or a reasonable belief that probable cause existed. See Beck v. State of Ohio, 379 U.S. 89, 94-97 (1964) (holding that prior criminal record and officer's knowledge of what defendant looked like, despite the alleged tip of an unnamed informant, do not give rise to probable cause).1

2.Larriva also argues he is entitled to qualified...

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