FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERRIS EDGERLY,

Plaintiff-Appellant,

v.

CITY AND COUNTY OF SAN

FRANCISCO; DAVID GOFF; JOHN

CONEFREY,

Defendants-Appellees.

No. 11-15655

D.C. No.

3:03-cv-02169-

CRB

OPINION

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

March 11, 2013—San Francisco, California

Filed April 10, 2013

Before: John T. Noonan, Jr., Raymond C. Fisher, and

Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Fisher
2 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO

SUMMARY*

Civil Rights

The panel affirmed in part and vacated in part the district

court’s judgment, entered following a jury trial, and

remanded in this 42 U.S.C. § 1983 action alleging unlawful

search and false arrest. 

The panel held that California Penal Code § 853.5

provides the exclusive grounds for the custodial arrest of a

person arrested for an infraction. The panel rejected

defendants’ argument that California Penal Code § 853.6(i),

which provides additional broader grounds for the custodial

arrest of a person arrested for a misdemeanor, also applied to

the nonrelease of a person arrested for an infraction. The

panel therefore vacated the judgment in favor of the

defendants on plaintiff’s state law false arrest claim and

remanded for further proceedings.

The panel affirmed the district court’s judgment in favor

of defendants on plaintiff’s unlawful search claim. The panel

held that plaintiff had not shown that the district court’s error

on the false arrest claim tainted the jury’s finding that he was

not subjected to a strip search.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 3

COUNSEL

Gregory M. Haynes, San Francisco, California, for PlaintiffAppellant.

Sean F. Connolly, Deputy City Attorney, San Francisco,

California, for Defendants-Appellees.

OPINION

FISHER, Circuit Judge:

This appeal requires us to decide when a person arrested

for an infraction may be taken into custody under California

law. California Penal Code § 853.5 provides three narrow

grounds for the nonrelease of a person arrested for an

infraction. California Penal Code § 853.6(i) provides 10

broader grounds for the nonrelease of a person arrested for a

misdemeanor. The defendants argue – and the district court

ruled – that the grounds for custodial arrest specified in

§ 853.6(i) apply not only to misdemeanors but also to

infractions. We disagree. Consistent with decisions of the

California Court of Appeal and the statute’s plain language,

we hold that Penal Code § 853.5 provides the exclusive

grounds for custodial arrest of a person arrested for an

infraction. We therefore vacate the judgment in favor of the

defendants on the plaintiff’s state law false arrest claim and

remand for further proceedings.

BACKGROUND

In 2000, Erris Edgerly was standing by himself inside a

playground at the Martin Luther King/Marcus Garvey
4 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO

Housing Cooperative in San Francisco, where he was not a

resident. The playground was surrounded by a fence and had

“No Trespassing” signs posted at every entrance. Two San

Francisco Police Department officers, John Conefrey and

David Goff, arrested Edgerly for trespassing. The officers

conducted a pat-down search, then transferred Edgerly to the

Park Police Station, where they performed an additional

search. The search did not reveal any contraband and

Sergeant Frederick Schiff, the police supervisor on duty at the

time, authorized the officers to issue Edgerly a citation for

trespass and release him. Edgerly was cited and released. 

Edgerly was not prosecuted for trespass or any other offense.

Edgerly filed this 42 U.S.C. § 1983 action against Goff,

Conefrey, Schiff and the City and County of San Francisco,

alleging that Goff and Conefrey unlawfully arrested and

searched him in violation of the Fourth Amendment, and that

Schiff and the City were liable for the officers’

unconstitutional actions. Edgerly also asserted various state

tort claims, including, as relevant here, claims for false arrest

and unlawful search.

The case went to trial and, at the close of evidence, the

district court granted the defendants’ motion for judgment as

a matter of law on Edgerly’s false arrest claim. The court

ruled that, as a matter of law, Goff and Conefrey had

probable cause to arrest Edgerly under California Penal Code

§ 602(l) (now § 602(m)) or § 602.8. Edgerly appealed.1

1 For the procedural history on Edgerly’s remaining claims, which are

not relevant to this appeal, see Edgerly v. City &County of San Francisco,

599 F.3d 946, 951–53 (9th Cir. 2010).
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 5

On appeal, we held that the officers lacked probable cause

to arrest Edgerly under § 602(l) but that probable cause for an

arrest existed under § 602.8. See Edgerly v. City & Cnty. of

S.F., 599 F.3d 946, 954 (9th Cir. 2010).2 We held, however,

 

2

 Section 602.8 provides in relevant part:

(a) Any person who without the written permission

of the landowner, the owner’s agent, or the person in

lawful possession of the land, willfully enters any lands

under cultivation or enclosed by fence, belonging to, or

occupied by, another, or who willfully enters upon

uncultivated or unenclosed lands where signs

forbidding trespass are displayed at intervals not less

than three to the mile along all exterior boundaries and

at all roads and trails entering the lands, is guilty of a

public offense.

(b) Any person convicted of a violation of

subdivision (a) shall be punished as follows:

(1) A first offense is an infraction punishable

by a fine of seventy-five dollars ($75).

(2) A second offense on the same land or any

contiguous land of the same landowner, without

the permission of the landowner, the landowner’s

agent, or the person in lawful possession of the

land, is an infraction punishable by a fine of two

hundred fifty dollars ($250).

(3) A third or subsequent offense on the same

land or any contiguous land of the same

landowner, without the permission of the

landowner, the landowner’s agent, or the person in

lawful possession of the land, is a misdemeanor.

Cal. Penal Code § 602.8(a)–(b).
6 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO

that the officers lacked authority under state law to place

Edgerly into custody. See id. at 956. We explained that

a first offense under section 602.8(a) is

punishable only as an infraction and, under

California law, “[i]n all cases . . . in which a

person is arrested for an infraction,” custodial

arrest is authorized “[o]nly if the arrestee

refuses to sign a written promise [to appear],

has no satisfactory identification, or refuses to

provide a thumbprint or fingerprint.” Cal.

Penal Code § 853.5(a).

Here, because the Officers did not testify

that Edgerly met any of these three

requirements, or that they had reason to

believe that he previously violated section

602.8(a), the custodial arrest was not

authorized by state law. . . . We therefore

reverse and remand for further proceedings on

this state law claim.

Id. at 959 (alterations in original but last ellipsis added).3

 

3

 Section 853.5(a) provides:

Except as otherwise provided by law, in any case

in which a person is arrested for an offense declared to

be an infraction, the person may be released according

to the procedures set forth by this chapter for the

release of persons arrested for an offense declared to be

a misdemeanor. In all cases, except as specified in

Sections 40302, 40303, 40305, and 40305.5 of the

Vehicle Code, in which a person is arrested for an

infraction, a peace officer shall only require the arrestee
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 7

On remand, the defendants raised a new argument that

Edgerly’s custodial arrest was authorized by Penal Code

§ 853.6(i).4 On its face, § 853.6(i), which specifies 10 

to present his or her driver’s license or other

satisfactory evidence of his or her identity for

examination and to sign a written promise to appear

contained in a notice to appear. If the arrestee does not

have a driver’slicense or other satisfactory evidence of

identity in his or her possession, the officer may require

the arrestee to place a right thumbprint, or a left

thumbprint or fingerprint if the person has a missing or

disfigured right thumb, on the notice to appear. Except

for law enforcement purposes relating to the identity of

the arrestee, no person or entity may sell, give away,

allow the distribution of, include in a database, or create

a database with, this print. Only if the arrestee refuses

to sign a written promise, has no satisfactory

identification, or refuses to provide a thumbprint or

fingerprint may the arrestee be taken into custody.

Cal. Penal Code § 853.5(a).

 

4

 Section 853.6(i) provides:

Whenever any person is arrested by a peace officer

for a misdemeanor, that person shall be released

according to the procedures set forth by this chapter

unless one of the following is a reason for nonrelease,

in which case the arresting officer may release the

person, except as provided in subdivision (a), or the

arresting officer shall indicate, on a form to be

established by his or her employing law enforcement

agency, which of the following was a reason for the

nonrelease:

(1) The person arrested was so intoxicated that he

or she could have been a danger to himself or herself or

to others.
8 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO

(2) The person arrested required medical

examination or medical care or was otherwise unable to

care for his or her own safety.

(3) The person was arrested under one or more of

the circumstances listed in Sections 40302 and 40303

of the Vehicle Code.

(4) There were one or more outstanding arrest

warrants for the person.

(5) The person could not provide satisfactory

evidence of personal identification.

(6) The prosecution of the offense or offenses for

which the person was arrested, or the prosecution of

any other offense or offenses, would be jeopardized by

immediate release of the person arrested.

(7) There was a reasonable likelihood that the

offense or offenses would continue or resume, or that

the safety of persons or property would be imminently

endangered by release of the person arrested.

(8) The person arrested demanded to be taken

before a magistrate or refused to sign the notice to

appear.

(9) There is reason to believe that the person would

not appear at the time and place specified in the notice. 

The basis for this determination shall be specifically

stated.

(10) The person was subject to Section 1270.1.

The form shall be filed with the arresting agency as

soon as practicable and shall be made available to any
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 9

grounds for nonrelease, applies only to misdemeanors. The

defendants argued, however, that § 853.6(i) applies to

infractions as well, relying on the first sentence of § 853.5(a),

which states: “[e]xcept as otherwise provided by law, in any

case in which a person is arrested for an offense declared to

be an infraction, the person may be released according to the

procedures set forth by this chapter for the release of persons

arrested for an offense declared to be a misdemeanor.” Cal.

Penal Code § 853.5(a) (emphasis added).

The district court agreed with the defendants that “these

ten exceptions from section 853.6 are incorporated into

section 853.5.” In support of this conclusion, the district

court cited People v. Arnold, 132 Cal. Rptr. 922, 925 n.2

(App. Dep’t Super. Ct. 1976), and California Criminal

Procedure § 3:58 (2010-11 ed.).

Having decided that § 853.6(i) applies to infractions, the

district court permitted three of § 853.6(i)’s grounds for

nonrelease to be submitted to the jury. See Cal. Penal Code

§ 853.6(i)(4), (7).5 The jury determined that these grounds

party having custody ofthe arrested person, subsequent

to the arresting officer, and to any person authorized by

law to release him or her from custody before trial.

Cal. Penal Code § 853.6(i).

 

5

 The verdict form asked:

1. Given what you find the officers knew, did they

transfer Mr. Edgerly to the station to determine

whether Mr. Edgerly had any: (a) Outstanding

warrants; [or] (b) Stay-away orders, holds,

admonishments, or other restrictions?
10 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO

for nonrelease applied to Edgerly’s arrest. As a result, the

district court entered judgment in favor of the defendants on

Edgerly’s false arrest claim. Edgerly once again appeals.

STANDARD OF REVIEW

The district court’s interpretation of state law is reviewed

de novo. See Lahoti v. Vericheck, Inc., 636 F.3d 501, 505

(9th Cir. 2011).

DISCUSSION

I.

Edgerly was arrested for trespass under Penal Code

§ 602.8. A first or second offense under § 602.8 is an

infraction. See Cal. Penal Code § 602.8(b). Penal Code

§ 853.5(a) governs when a person arrested for an infraction

can be taken into custody. It provides:

2. Given what you find the officers knew, did they

believe that there was a reasonable likelihood that

Mr. Edgerly’s trespass offense would continue or

resume if the officers did not transport him from

the scene of the arrest?

3. Given what you find the officers knew, was it

reasonable for them to believe that the safety of

persons (including Officers Goff and Conefrey,

Mr. Edgerly, or anyone else) would be imminently

endangered by the release of Mr. Edgerly at the

scene of the arrest?

The jury answered each of these questions in the affirmative.
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 11

[1] Except as otherwise provided by law, in

any case in which a person is arrested for an

offense declared to be an infraction, the

person may be released according to the

procedures set forth by this chapter for the

release of persons arrested for an offense

declared to be a misdemeanor. [2] In all

cases, except as specified in Sections 40302,

40303, 40305, and 40305.5 of the Vehicle

Code, in which a person is arrested for an

infraction, a peace officer shall only require

the arrestee to present his or her driver’s

license or other satisfactory evidence of his or

her identity for examination and to sign a

written promise to appear contained in a

notice to appear. [3] If the arrestee does not

have a driver’s license or other satisfactory

evidence of identity in his or her possession,

the officer may require the arrestee to place a

right thumbprint, or a left thumbprint or

fingerprint if the person has a missing or

disfigured right thumb, on the notice to

appear. [4] Except for law enforcement

purposes relating to the identity of the

arrestee, no person or entity may sell, give

away, allow the distribution of, include in a

database, or create a database with, this print. 

[5] Only if the arrestee refuses to sign a

written promise, has no satisfactory

identification, or refuses to provide a

thumbprint or fingerprint may the arrestee be

taken into custody.

Cal. Penal Code § 853.5(a) (sentence numbering added).
12 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO

By its express terms, § 853.5(a) specifies only three

situations in which custodial arrest is permitted for an

infraction: (1) the arrestee refuses to sign a written promise to

appear; (2) the arrestee is unable to produce satisfactory

identification; or (3) the arrestee refuses to provide a

thumbprint or fingerprint.

At the same time, however, § 853.5(a) also expressly

incorporates the procedures for release applicable to

misdemeanor arrests. Section 853.5(a) thus incorporates, at

least in part, § 853.6. The question presented here is whether

§ 853.5(a) incorporates all of § 853.6 – including its grounds

for nonrelease in § 853.6(i) – or only some of § 853.6. The

defendants argue that § 853.5(a) incorporates all of § 853.6,

including § 853.6(i), whereas Edgerly argues that § 853.5(a)

incorporates only § 853.6’s release procedures, not its

grounds for nonrelease. We conclude that Edgerly is correct.

“In a case requiring a federal court to apply California

law, the court must apply the law as it believes the California

Supreme Court would apply it.” Kairy v. SuperShuttle Int’l,

660 F.3d 1146, 1150 (9th Cir. 2011) (internal quotation marks

omitted). In the absence of a controlling California Supreme

Court decision, “we follow decisions of the California Court

of Appeal unless there is convincing evidence that the

California Supreme Court would hold otherwise.” Carvalho

v. Equifax Info. Servs., LLC, 629 F.3d 876, 889 (9th Cir.

2010).

Here, there are two California Court of Appeal decisions

on point, and each supports Edgerly’s position. In In re

Rottanak K., 43 Cal. Rptr. 2d 543 (Ct. App. 1995), the court

of appeal stated:
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 13

For adults accused of violating penal laws,

several types of release are possible. When an

adult is arrested for an infraction (with the

exception of a few specified Veh. Code

violations), the arresting officer requires that

the person present a driver’s license or other

satisfactory evidence of identification and

sign a promise to appear. Only if the person

refuses to present identification or to sign the

promise to appear can he or she be taken into

custody. (Pen. Code, § 853.5.) . . .

When an adult is arrested for a

misdemeanor and does not demand to be

taken before a magistrate, he or she must be

released once the arresting officer has

prepared a written notice to appear in court

and the arrestee has given a written promise to

appear as specified in the notice, unless the

officer makes special findings. (Pen. Code,

§ 853.6, subds. (a), (d), (i).)

Id. at 552–53 (emphasis added). Similarly, in People v.

Williams, 5 Cal. Rptr. 2d 59 (Ct. App. 1992), the court of

appeal stated:

When a person is arrested for an offense

declared to be an infraction, the person is

ordinarily released after the officer prepares a

notice to appear and the person arrested gives

his written promise to appear in court as

specified in the notice. Only if the arrestee

refuses to present written identification or to

sign the written promise to appear may he be
14 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO

taken into custody. (Pen. Code, §§ 853.5,

853.6, subd. (a).)

Id. at 61 n.1 (emphasis added). Notably, although Williams

cited § 853.5 and § 853.6(a), it did not cite § 853.6(i). Each

of these decisions said that § 853.5(a), not § 853.6(i),

provides the exclusive grounds for nonrelease of a person

arrested for an infraction. They make clear that § 853.6(i)

does not apply to infractions.

We recognize that Rottanak K. and Williams conflict with

People v. Arnold, 132 Cal. Rptr. 922, 925 n.2 (App. Dep’t

Super. Ct. 1976), which stated that § 853.6(j) – now

§ 853.6(i) – applies to infractions as well as misdemeanors. 

Arnold, however, is a decision of the appellate department of

the superior court, which is inferior to the California Court of

Appeal and the California Supreme Court. See Snukal v.

Flightways Mfg., Inc., 3 P.3d 286, 300 (Cal. 2000). The

appellate department’s decisions are not binding on the

California Court of Appeal, see Carter v. Cohen, 116 Cal.

Rptr. 3d 303, 311–12 (Ct. App. 2010); Worthington v. Cal.

Unemployment Ins. Appeals Bd., 134 Cal. Rptr. 507, 510 (Ct.

App. 1976), and we do not follow decisions of the appellate

department when, as here, they conflict with decisions of the

California Court of Appeal, cf. McSherry v. Block, 880 F.2d

1049, 1053 n.2 (9th Cir. 1989). Arnold, therefore, does not

diminish the respect we owe to Rottanak K. and Williams.

As noted, “we follow decisions of the California Court of

Appeal unless there is convincing evidence that the California

Supreme Court would hold otherwise.” Carvalho, 629 F.3d

at 889. Here, we find no evidence that the California

Supreme Court would depart from these decisions. On the
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 15

contrary, California’s rules of statutory construction strongly

support Rottanak K. and Williams’ construction of § 853.5(a).

Under California law, “ourfundamental task in construing

a statute is to ascertain the intent of the lawmakers so as to

effectuate the purpose of the statute.” Martinez v. Combs,

231 P.3d 259, 268 (Cal. 2010) (alteration omitted). “In this

search for what the Legislature meant, the statutory language

itself is the most reliable indicator, so we start with the

statute’s words, assigning them their usual and ordinary

meanings, and construing them in context.” Id. (alteration

and internal quotation marks omitted). “If the words

themselves are not ambiguous, we presume the Legislature

meant what it said, and the statute’s plain meaning governs.” 

Id. “On the other hand, if the language allows more than one

reasonable construction, we may look to such aids as the

legislative history of the measure and maxims of statutory

construction. In cases of uncertain meaning, we may also

consider the consequences of a particular interpretation,

including its impact on public policy.” Id.

The defendants’ statutory construction argument relies on

the first sentence of § 853.5(a). This sentence says:

Except as otherwise provided by law, in any

case in which a person is arrested for an

offense declared to be an infraction, the

person may be released according to the

procedures set forth by this chapter for the

release of persons arrested for an offense

declared to be a misdemeanor.

Cal. Penal Code § 853.5(a) (emphasis added). As the

defendants point out, this language incorporates “procedures
16 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO

. . . for . . . release” governing misdemeanors and makes them

applicable to infractions, except as otherwise provided by

law. The defendants argue that the grounds for nonrelease

specified by § 853.6(i) are “procedures for release” and that

they are therefore incorporated by § 853.5(a). We find this

argument unpersuasive.

First, giving the phrase “procedures for release” its

natural and ordinary meaning, one would not generally

understand that term to extend to grounds for nonrelease. 

Procedures for release and grounds for nonrelease appear to

constitute two different, albeit related, subjects. There is,

therefore, nothing in § 853.5(a)’s plain language to suggest

that the legislature intended to incorporate § 853.6(i) in the

first instance.

Second, even if § 853.6(i)’s grounds for nonrelease could

be considered release procedures (and, hence, potentially

subject to incorporation), the first six words of § 853.5(a) –

“Except as otherwise provided by law” – would bar that

result. Incorporating § 853.6(i) into § 853.5(a) would conflict

with § 853.5(a) itself, which specifies in its fifth and final

sentence only three grounds for nonrelease for a person

arrested for an infraction. The grounds for nonrelease

specified in § 853.5(a) would therefore control.

Third, it is a general rule of statutory interpretation that “a

statutory provision containing a specific enumeration shall

take precedence over another couched in more general

language.” People v. Valentine, 121 Cal. Rptr. 438, 440 (Ct.

App. 1975); see also Robertson v. Willis, 143 Cal. Rptr. 523,

527 (Ct. App. 1978) (“When specific language conflicts with

the general, the specific provisions will prevail.”). As applied

here, § 853.5(a)’s specific enumeration of the grounds for
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 17

nonrelease of a person arrested for an infraction takes

precedence over its general incorporation of misdemeanor

“procedures . . . for . . . release.”

Fourth, “[i]t is a settled principle of statutory

construction, that courts should strive to give meaning to

every word in a statute and to avoid constructions that render

words, phrases, or clauses superfluous.” In re C.H., 264 P.3d

357, 362 (Cal. 2011) (internal quotation marks omitted). If,

as the defendants argue, § 853.6(i) determines when a person

arrested for an infraction can be taken into custody, then

§ 853.5(a)’s fifth sentence – “Only if the arrestee refuses to

sign a written promise, has no satisfactory identification, or

refuses to provide a thumbprint or fingerprint may the

arrestee be taken into custody” – serves no purpose. Under

Edgerly’s reading, by contrast, every word in § 853.5(a) is

given meaning and no words are rendered superfluous. The

first sentence incorporates § 853.6’s release procedures (but

not its grounds for nonrelease) and the fifth sentence specifies

the grounds for nonrelease of a person arrested for an

infraction.

Finally, the defendants’ interpretation contradicts not only

California case law and the statute’s plain language but also

the leading treatise on California law. Witkin explains that

“[a] person arrested for an infraction is subject to the release

procedure specified in P.C. 853.6.” 4 B.E. Witkin, California

Criminal Law § 57, at 299 (4th ed. 2012) (emphasis added). 

When it comes to grounds for nonrelease, however, Witkin

states that § 853.6(i) governs misdemeanors and § 853.5(a)

governs infractions, as Edgerly argues. See id. § 61, at

301–03. According to Witkin: “Except as specified in Veh.

C. 40302, 40303, 40305, and 40305.5 . . . , a person arrested

for an infraction may be taken into custody only if he or she
18 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO

refuses to present satisfactory evidence of identity or refuses

to sign the promise to appear. Otherwise, the person must be

released. (P.C. 853.5.)” Id. at 302–03 (emphasis added);

accord L. Levenson, California Criminal Procedure §§ 3:59,

3:64 (2012-2013 ed.) (same).

In sum, we find no convincing evidence that the

California Supreme Court would not follow Rottanak K. and

Williams. Consistent with those decisions, the statute’s plain

language, the rule against superfluity and other persuasive

authority, we hold that Penal Code § 853.5 provides the

exclusive grounds for custodial arrest of a person arrested for

an infraction.6 We therefore vacate the judgment in favor of

the defendants on Edgerly’s state law false arrest claim and

remand for further proceedings. If there are no further issues

pertaining to liability on this claim, the district court should

enter judgment in favor of Edgerly and proceed to a trial on

damages.

6 The defendants’ arguments to the contrary are wholly without merit. 

Their argument that the second, third and fifth sentences of § 853.5(a)

apply only to Vehicle Code infractions is impossible to reconcile with the

plain language of the statute and contrary to each of the authorities we

have cited. The defendants’ argument that the officers were entitled to

take Edgerly into custody and transport him to the station house in order

“to research” whether this might be his third § 602.8 offense at the same

location, a misdemeanor, is highly unpersuasive. As we explained in

Edgerly, because the officers had no “reason to believe that he had

previously violated section 602.8(a), the custodial arrest was not

authorized by state law.” 599 F.3d at 959. The defendants have pointed

to nothing in § 853.5(a) – or any other provision of California law – that

authorizes police officers to take a defendant into custody based on

nothing more than rank speculation that the defendant may have

committed a misdemeanor. The defendants’ reliance on 58 Cal. Op. Atty.

Gen. 886 (1975) is also misplaced; nothing in § 602.8 grants authorities

discretion to treat a first offense as a misdemeanor.
EDGERLY V. CITY & COUNTY OF SAN FRANCISCO 19

II.

We reject Edgerly’s remaining contentions. First,

although his argument to the contrary is understandable, we

hold that the district court did not violate the law of the case

doctrine or the rule of mandate by submitting Edgerly’s false

arrest claim to the jury. See United States v. Thrasher,

483 F.3d 977, 981 (9th Cir. 2007) (“For the [law of the case]

doctrine to apply, the issue in question must have been

decided explicitly or by necessary implication in the previous

disposition.”); Hall v. City of L.A., 697 F.3d 1059, 1067 (9th

Cir. 2012) (“[T]he rule of mandate allows a lower court to

decide anything not foreclosed by the mandate.”). Second,

Edgerly has not shown that the district court’s error on the

false arrest claim tainted the jury’s finding that he was not

subjected to a strip search. See GCB Commc’ns, Inc. v. U.S.

S. Commc’ns, Inc., 650 F.3d 1257, 1262 (9th Cir. 2011) (“We

review evidentiary rulings for abuse of discretion, but will not

reverse those unless it is more probable than not that an error,

if any, tainted the outcome.”); Clem v. Lomeli, 566 F.3d 1177,

1182 (9th Cir. 2009) (“An error in instructing the jury in a

civil case requires reversal unless the error is more probably

than not harmless.”). The judgment on Edgerly’s unlawful

search claims therefore stands.

CONCLUSION

We affirm judgment in favor of the defendants on

Edgerly’s unlawful search claims. We vacate judgment in
20 EDGERLY V. CITY & COUNTY OF SAN FRANCISCO

favor of the defendants on Edgerly’s state law false arrest

claim and remand for further proceedings. Costs of appeal

are awarded to Edgerly.

AFFIRMED IN PART, VACATED IN PART AND

REMANDED.