Anni Ma v. City of Los Angeles;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNI MA,
Plaintiff-Appellant,
v.
CITY OF LOS ANGELES; et al.,
Defendants-Appellees.
No. 17-56544
D.C. No.
2:16-cv-05819-DMG-RAO
MEMORANDUM*
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.
FILED
MAR 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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)

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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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