Jason MEGGS; et al., Plaintiffs-Appellants, v. CITY OF BERKELEY; et al., Defendants-Appellees, 246 F. App'x 402

MEMORANDUM Viewing the facts in the light most favorable to Salsbury, no reasonable jury could conclude that his arrest was unsupported by probable cause. Presented with the totality of circumstances known to the arresting officers, a prudent person would conclude that there was a “fair probability,” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007), Salsbury had committed the crime invoked at the time of his arrest—incitement to riot under California Penal Code § 404.6. Further, the evidence indisputably demonstrates probable cause to believe Salsbury committed several other crimes.

Therefore the arrest was lawful. See Devenpeck v. Alford, 543 U.S. 146, 152-53, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). The use of force to repel Meggs and Salsbury from the skirmish line is properly analyzed under the Fourteenth Amendment guarantee of substantive due process and not under the Fourth Amendment because it did not occur “in the course of an arrest, investigatory stop, or other seizure.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted).

Given the circumstances, no reasonable juror could find that the level of force used met the “shocks-the-conscience test,” County of Sacramento v. Lewis, 523 U.S. 833, 854, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), applicable here. Salsbury argues that the quantum of force used to place him under arrest was unreasonable under the Fourth Amendment because the underlying seizure was unlawful. Because the arrest was supported by probable cause, this argument fails. Further, there is no evidence that force was intentionally applied to Salsbury’s person during the transport van’s detour into lower Sproul plaza.

Salsbury’s unsupported assertion to the contrary does not create a genuine issue of material fact. See Roley v. New World Pictures, Ltd., 19 F.3d 479, 482 (9th Cir.1994) (explaining that “naked allegations and speculation” are insufficient to preclude

summary judgment). Appellants’ remaining claims are plainly without merit and were properly dismissed by the district court. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.