author: LEAVY, Circuit Judge:

text:
    DENBICARE U.S.A. INC., and Ernest McCoy, Plaintiffs-Appellants, v. TOYS “R” US, INC., Defendant-Appellee.
    No. 94-16615.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Feb. 14, 1996.
    Decided May 24, 1996.

      Ernest H. McCoy, Bruce & McCoy, Oakland, California; Christopher J. Palermo, Fish & Richardson, Menlo Park, California, for plaintiffs-appellants.
    Paul Fields, Darby & Darby, New York City; Neil A.- Smith, Limbach & Limbach, San Francisco, California, for defendant-ap-pellee.
    Before ALARCON, LEAVY, and KLEINFELD, Circuit Judges.
   LEAVY, Circuit Judge:

Denbicare U.S.A Inc. (“Denbicare”) and Ernest H. McCoy appeal from a partial final judgment entered under Ride 54(b) after grants of summary judgment against them on their claims of copyright infringement, trademark infringement, unfair competition, and tortious denial of contract against Toys “R” Us (“Toys”). We have jurisdiction under 28 U.S.C. § 1291 and affirm.

FACTUAL BACKGROUND

Denbi Products, Inc. (“DPI”), a California company founded in 1981, sold reusable diapers made according to a design patented by its president, Debra Shaw. In 1983, DPI ordered a large quantity of diapers from its Hong Kong manufacturer. Approximately 450,000 diapers (the “Hong Kong diapers”) were shipped by the manufacturer to the United States and held in the foreign trade zone in San Francisco awaiting DPI’s payment of import duties. The parties dispute whether these diapers were defective, but Denbicare does not dispute that DPI did not formally reject the diapers as defective.

DPI filed for bankruptcy in the Northern District of California in 1984. At a trustee’s sale in September 1985, McCoy purchased DPI’s United States and Canadian patents on the diapers, its copyrights in the packaging, and its trademarks. McCoy then formed Denbicare, became its president, and licensed the purchased intellectual property rights to it; Denbicare began making and selling reusable diapers. Toys purchased diapers from Denbicare.

In November 1986, DPI’s bankruptcy trustee applied to the bankruptcy court for approval of a sale of the Hong Kong diapers, which were still in the foreign trade zone, to Marc Rosenberg and Raul Martinez. McCoy objected to the sale because of his ownership of the United States patents, trademarks, and copyrights, and asked the court to confirm the sale only in conjunction with the issuance of a permanent injunction against “selling, reselling, distributing or disposing” of the diapers in the United States or Canada. The bankruptcy court entered such an injunction on December 4, based on the “stipulation of [McCoy and the purchasers] in open court.” McCoy registered no further objection and the court approved the sale on December 29,1986.

In March 1987, Denbicare’s CEO and its manufacturers representative met with a Toys buyer at Toys’ headquarters in Para-mus, New Jersey. The meeting concerned Toys’ inventory of Denbicare diapers, which was packaged in a format that Denbicare was no longer using. The parties dispute whether an agreement was reached at this meeting concerning the repackaging of this inventory and what the terms of any such agreement were.

Clark Harris, doing business as Clark Harris Sales, bought about 235,000 of the Hong Kong diapers from Jaime Martinez, and in turn sold the diapers to Toys under a contract dated August 17,1987. Neither Harris nor Toys had any notice of the bankruptcy court’s injunction or any reason to believe that the diapers were not legally in the United States and freely marketable. Denbicare discovered in October 1987 that Toys was selling the diapers in the original copyrighted boxes (bearing the original trademark) and attempted unsuccessfully to persuade Toys to remove the diapers from sale. Toys attempted unsuccessfully to persuade Harris to take back the diapers.

PROCEDURAL HISTORY

In November 1987, Denbicare brought this action in the United States District Court for the Northern District of California alleging patent infringement, copyright infringement, trademark infringement, unfair competition, breach of contract, and tortious bad-faith denial of contract. At Denbicare’s request the district court enjoined sale of the Hong Kong diapers.

In January 1989, after a two-day hearing, then-Magistrate Judge Claudia Wilken found that the diapers were not defective. The district court dissolved the injunction against sale in May 1989, but did not adopt Judge Wilkeris finding that the diapers were not defective, stating that the issue of defectiveness was to be decided at trial.

Denbicare moved for dismissal of its claim for patent infringement. Toys opposed the motion and sought leave to amend its answer to add a counterclaim seeking a declaratory judgment that Denbicare’s patents were invalid. The district court granted Denbicare leave to amend its complaint pursuant to Federal Rule of Civil Procedure 15 to dismiss the patent infringement claim with prejudice. The district court also granted Toys leave to amend, but asked the parties to brief whether it had jurisdiction to hear the counterclaim under the Declaratory Judgment Act. After briefing, the district court found that Toys potential for liability was “purely speculative,” and dismissed the counterclaim under Societe de Conditionnement en Aluminium v. Hunter Eng’g Co., 655 F.2d 938, 944 (9th Cir.1981), which requires a party seeking a declaratory judgment of patent invalidity to demonstrate “a real and reasonable apprehension that he will be subject to liability” for his activity.

On October 5, 1989, the court granted Toys’ motion for summary judgment on Den-bicare’s claim of copyright infringement. At the same time, the court granted Denbicare’s motion for summary judgment on its trademark infringement claims, but on November 7 it granted Toys’ motion for reconsideration and denied summary judgment on the trademark claims.

Although the case had been set for trial in November 1989, the Loma Prieta earthquake in October of that year forced a delay until March 1991. Meanwhile, the case was transferred to Judge Fern Smith, who referred it to a magistrate judge and then adopted his recommendation that she review the trademark claims de novo. In December 1991, Judge Smith ruled against Denbicare on its trademark claims. In May 1993, Judge Smith granted Toys’ motion for summary judgment on Denbicare’s claim of tortious denial of contract. In October 1993, the case was reassigned to Chief Judge Henderson for trial.

As the trial was set to begin, Clark Harris was unable to appear because of a serious back injury he had just suffered. In the interests of judicial economy, the parties and the court agreed that the court should enter a partial final judgment under Rule 54(b) on its summary judgment rulings against the plaintiff on the copyright, trademark, unfair competition, and tortious denial of contract claims in order to allow the plaintiff to appeal those rulings; the trial of the remaining contract issue was stayed pending, a decision on appeal. Denbicare and McCoy timely appealed.

JURISDICTION

Toys moved to dismiss this appeal, arguing that appellate jurisdiction in this case lies properly in the Court of Appeals for the Federal Circuit.

1. Discussion

The Federal Circuit has exclusive jurisdiction under 28 U.S.C. § 1295(a)(1) over appeals from final district court decisions when the district court’s jurisdiction “was based, in whole or in part,” on the patent provisions of 28 U.S.C. § 1338. A district court has jurisdiction under the relevant portions of § 1338 over actions “arising under any Act of Congress relating to patents.” The Supreme Court has held that the standards for determining whether an action “arises under” the patent laws are the same as those for determining whether an action “arises under” federal law for purposes of the general federal-question jurisdiction granted in 28 U.S.C. § 1331 and include the well-pleaded-complaint rule. See, e.g., Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 807-809, 108 S.Ct. 2166, 2172-74, 100 L.Ed.2d 811 (1988).

The mere fact that the present appeal relates only to nonpatent issues does not mean that jurisdiction is not in the- Federal Circuit. “[W]hen the district court’s jurisdiction is based in part on § 1338, the appeal of the entire case, not solely the patent claims, lies in” the Federal Circuit. Schwarzkopf Dev. Corp. v. Ti-Coating, Inc., 800 F.2d 240, 244 (Fed.Cir.1986) (emphasis supplied). See also Abbott Lab. v. Brennan, 952 F.2d 1346, 1349-50 (Fed.Cir.1991) (“The path of appeal is determined by the basis of jurisdiction in the district court, and is not controlled by the district court’s decision or the substance of the issues that are appealed.”), cert. denied, 505 U.S. 1205, 112 S.Ct. 2993, 120 L.Ed.2d 870 (1992). The Federal Circuit has also held that it has exclusive appellate jurisdiction “when a nonfrivolous well-pleaded compulsory patent law counterclaim is present in a ease originally and properly filed in the district court.” Aerojet-General Corp. v. Machine Tool Works, Oerlikon-Buehrle Ltd., 895 F.2d 736, 741 (Fed.Cir.1990). See also Xeta, Inc. v. Atex, Inc., 825 F.2d 604 (1st Cir.1987).

As discussed above, both Denbicare’s patent claim and Toys counterclaim for a declaratory judgment that Denbieare’s patents are invalid were dismissed by the district court. The propriety of these dismissals is not before us in this appeal, although, by opposing the dismissals, Toys has preserved its right to raise the issue in a subsequent appeal.

A district court’s dismissal of all patent claims or' patent counterclaims, when unopposed, will remove the appeal of a district court decision on nonpatent issues from the exclusive jurisdiction of the Federal Circuit. See Gronholz v. Sears, Roebuck and Co., 836 F.2d 515, 518 (Fed.Cir.1987); Schwarzkopf Dev. Corp., 800 F.2d at 245. Here, however, while all patent claims have been dismissed from the case, the dismissals were contested. We must decide whether we, nonetheless, have jurisdiction over the appeal of a partial final judgment granted under Rule 54(b) on certain nonpatent issues.

The legislative history of the Federal Courts Improvement Act of 1982, the law that created the Court of Appeals for the Federal Circuit, indicates that we have jurisdiction. The report of the House Judiciary Committee states that “[sjhould questions legitimately arise respecting ancillary and pendent claims and for the direction of appeals in particular cases, the Committee expects the courts to establish, as they have in similar situations, jurisdictional guidelines respecting such cases.” H.R.Rep. No. 97-312, 97th Cong., 1st Sess. 41. One prominent commentator has suggested the use of Rule 54(b) in such situations: “If there is to be any such division and channeling of appeals, the appropriate vehicle would seem to be the procedures and standards already developed under Rule 54(b)....” Chisum, Patents § 11.06[3][e][iii]. In addition, at least one circuit has suggested this approach. In Unique Concepts, Inc. v. Manuel, 930 F.2d 573 (7th Cir.1991), Judge Easterbrook rejected a patent plaintiff’s argument that the regional circuit had jurisdiction over its appeal of a judgment against it on the defendant’s state-law counterclaims heard in diversity, even though the patent claims had been bifurcated for trial after the state-law claims and the plaintiff, after losing on the latter claims, was granted leave (conditioned on execution of a covenant not to refile) to dismiss its patent claims without prejudice. The court noted that “[i]f the district judge had used Fed. R.Civ.P. 54(b) to separate the [state-law] claims from the patent claims, then [plaintiff] would have a better argument. That final decision really would depend wholly on § 1332 [for jurisdiction].” 930 F.2d at 575.

The Senate Judiciary Committee Report also lends support to this approach. That committee expressed concern that parties might insert patent claims into a case in order to avoid the appellate jurisdiction of the relevant regional circuit; • it gave the example of a plaintiff who joined a patent claim to “a case whose gravamen is antitrust.” S.Rep. No. 97-275, 97th Cong., 1st Sess. 20 (1981), reprinted in 1982 U.S.C.C.A.N. 11, 30 (hereinafter Senate Report). The report explained how to avoid this problem:

Federal District judges are encouraged to use their authority under the Federal Rules of Civil Procedure, see Rules 13(i), 16, 20(b), 42(b), 54(b), to ensure the integrity of the jurisdiction of the federal court of appeals by separating final decisions on claims involving substantial antitrust issues from trivial patent claims, counterclaims, cross-claims, or third party claims raised to manipulate appellate jurisdiction.
The Committee intends for the jurisdictional language to be construed in accordance with the objectives of the Act and these concerns. If, for example, a patent claim is manipulatively joined to an antitrust action but severed or dismissed before final decision of the antitrust claim, jurisdiction over the appeal of the antitrust claim should not be changed by this Act but should rest with the regional court of appeals.

Id. Here, the district court’s use of Rule 54(b) to separate the certain nonpatent claims for partial final judgment fits within the scope of the committee’s intent. Because the district court both dismissed all patent claims from this case and separated its decision on the merits of the nonpatent claims through the grant of a partial final judgment under Rule 54(b), we have appellate jurisdiction over the partial final judgment.

DISCUSSION

I. Copyright Claims

A. Importation

Denbicare claims that Toys has infringed its exclusive right of distribution in a copyrighted work — the box in which the diapers are packaged — through the sale of copies imported without authorization. Section 106 of Title 17 of the United States Code grants a copyright owner the exclusive right to distribute copies of the copyrighted work. Section 602 of the Act provides that “[importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106.” 17 U.S.C. § 602(a). Section 602 bars unauthorized importation only of “copies ... that have been acquired outside the United States.” Id. The legislative history of the Act highlights this fact: “Section 602(a) first states the general rule that unauthorized importation is an infringement merely if the copies or phonorecords ‘have been acquired outside the United States’_” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 169 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5785. Given the 1976 Act’s definition of the term “United States,” it seems highly improbable that Congress intended, without remarking on the fact at all, that Foreign Trade Zones on the geographic and political territory of the United States be considered “outside the United States” for purposes of the acquisition required for a violation of § 602 by importation. As the Customs Court has noted, the laws authorizing these zones draw “a patent distinction ... between the boundaries delineating the geographical territory of the United States and the Customs territory of the United States.” Hawaiian Indep. Refinery v. United States, 81 Cust.Ct. 117, 121-22, 460 F.Supp. 1249, 1253 (1978). Because the diapers were already in the United States, Toys did not violate Denbicare’s exclusive distribution right under § 602.

B. First Sale

A copyright owner receives, under 17 U.S.C. § 106(3), the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending” or to authorize such distribution. While Toys is not liable for violating the distribution right by an importation prohibited by § 602, its sales of the diapers to the public could violate the basic distribution right itself, since Denbicare, as copyright owner, has the exclusive right to sell copies to the public and Toys does not have Denbi-care’s authorization for its sales. Denbi-eare’s exclusive distribution right, however, is limited by the “first sale” doctrine set forth in 17 U.S.C. § 109(a): “the owner of a particular copy or phonorecord lawfully made under this title ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” Whether Toys’ sales of the diapers infringe Denbicare’s exclusive distribution right therefore turns on whether or not the diapers have already been the subject of a first sale. Toys asserts, and the district court ruled, that the sale of the diapers by the bankruptcy trustee constituted a first sale.

Denbicare argues that there has been no first sale for the purposes of § 109 because such a sale must be in the United States and the sale by the bankruptcy trustee occurred in a foreign trade zone and not in the United States. The requirement that the sale be in the United States comes from our opinions in BMG Music v. Perez, 952 F.2d 318 (9th Cir.1991), cert. denied, 505 U.S. 1206, 112 S.Ct. 2997, 120 L.Ed.2d 873 (1992), and Parfums Givenchy, Inc. v. Drug Emporium, Inc., 38 F.3d 477 (9th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1315, 131 L.Ed.2d 197 (1995), cases which examined the relationship between the importation right in § 602 and the first-sale doctrine of § 109. BMG Music held that “[t]he words ‘lawfully made under this title’ in § 109(a) grant first sale protection only to copies legally made and sold in the United States.” 952 F.2d at 319 (emphasis supplied). Parfums Givenchy acknowledged widespread criticism of this language, which, “if taken literally, would render the first sale doctrine wholly inapplicable to foreign manufactured goods, even after the goods have been lawfully imported into the United States with the authorization of the U.S. copyright holder.” 38 F.3d at 482 n. 8. Agreeing that “such a result would be untenable, and that nothing in the legislative history or text of [the 1976 Copyright Act] supports such an interpretation,” we held that the language in BMG Music was limited to the facts of that case and “sales abroad of foreign manufactured United States copyrighted materials do not terminate the United States copyright holder’s exclusive distribution rights in the United States under §§ 106 and 602(a).” Id. (citations omitted) (emphasis in original). Thus, under the law of the circuit, § 109 applies to copies made abroad only if the copies have been sold in the United States by the copyright owner or with its authority.

In this case, there was such a sale. As discussed above, the foreign trade zone is part of the United States, although it is not part of its customs territory. The bankruptcy trustee’s sale of the diapers in the foreign trade zone was therefore a sale in the United States sufficient to bring § 109 into play.

Denbicare next argues that no first sale occurred because such a sale requires the consent of the copyright owner and it consented only to the sale of the diapers outside the United States and Canada. It is clear, however, that McCoy consented to the first sale, i.e., the sale of the diapers by the bankruptcy trustee, although with a restriction (imposed through an injunction issued by the bankruptcy court) that the buyers not resell the diapers in the United States or Canada. The bankruptcy trustee filed an application to sell the diapers. McCoy filed an objection to the sale, stating that the distribution of the diapers in the United States or Canada would injure his business and requesting that the court not approve the sale unless it also enjoined the buyers from reselling the diapers in those countries. Based on a “stipulation ... stated in open court” by McCoy, the debtor, and the purchasers, the court enjoined the prospective purchasers of the diapers from reselling them in the United States and Canada and filed an order approving the sale.

When McCoy objected to the sale of the diapers, he could have exercised his right as the owner of the copyright in the diaper boxes to prevent the bankruptcy trustee’s sale altogether. The proposed sale would have constituted a distribution of copies of the copyrighted work, and McCoy, as the copyright owner, had the exclusive right under § 106(3) to make or authorize such distributions. Without his authorization, the bankruptcy trustee’s sale—a sale of copies located within the physical territory of the United States that required the approval of a federal court in California—would have been an infringement of his copyright. Instead of seeking to prevent this infringing sale, however, McCoy stipulated in court that the sale could proceed if the buyers were enjoined from reselling in the United States and Canada. Thus, McCoy consented to the sale of the copies; the fact that the buyers later violated the conditions imposed on the sale does not negate his consent. Cf. United States v. Wise, 550 F.2d 1180, 1187 (9th Cir.1977).

Finally, Denbicare argues that no first sale occurred because it received no economic reward as copyright owner from the sale. Denbicare bases its argument that such a reward is a prerequisite to a first sale not on the language or history of § 109 but on Platt & Munk Co. v. Republic Graphics, Inc., 315 F.2d 847 (2d Cir.1963), a case interpreting § 27 of the 1909 Copyright Act, the predecessor provision to § 109.

Even if the “reward” test of Platt & Munk is a proper interpretation of § 109(a) in civil cases in this circuit, it is not relevant to this case. Platt & Munk involved a situation in which the defendant had not acquired the copies through a prior sale that was allegedly a first sale; rather, the defendant owned the copies because it had manufactured them under authority of the copyright owner, and it argued that this ownership qualified it for the exemption, granted by § 27, from the copyright owner’s exclusive distribution right. Toys does not argue that the bankruptcy trustee was entitled to sell the diaper boxes because the debtor owned them through its lawful manufacture of them while the debtor owned the copyright. Instead, Toys argues that the bankruptcy trustee’s sale was a first sale because the owner of the copyright at the time of the sale — McCoy— consented to that sale. Because the “reward” test of Platt & Munk is designed to determine when a sale that is “not ... truly voluntary” is a first sale, 815 F.2d at 854, that test is irrelevant here: the bankruptcy trustee’s sale was voluntary as to Denbicare and to McCoy because McCoy consented. Just as courts will not inquire into the sufficiency of consideration, there is no justification for reexamining the adequacy of the “reward” received by the copyright owner in an alleged first sale where the owner has consented to that sale.

II. Trademark Claims

Denbicare appeals the district court’s grant of summary judgment, based on the “first sale” doctrine, on its trademark infringement claims. In Sebastian Int'l, Inc. v. Longs Drug Stores Corp., 53 F.3d 1073 (9th Cir.), cert. denied, — U.S.-, 116 S.Ct. 302, 133 L.Ed.2d 207 (1995), we held that, subject to certain exceptions, “the right of a producer to control distribution of its trademarked product does not extend beyond the first sale of the product. Resale by the first purchaser of the original article under the producer’s trademark is neither trademark infringement nor unfair competition.” Id. at 1074. Thus, if the bankruptcy trustee’s sale of the diapers was a first sale, Toys’ resale of the diapers would not in itself infringe Den-bicare’s trademark. Denbicare argues that the trustee’s sale was not a trademark first sale for the same reasons that it argued it was not a copyright first sale. Denbicare has not argued that different criteria apply in determining what constitutes a first sale in the copyright and trademark contexts. Since the trustee’s sale qualified as a first sale for copyright purposes, it is a trademark first sale as well.

Denbicare tries to bring itself within an exception to the “first sale” rule by arguing that the rule does not apply if the goods sold subsequently deteriorate in the chain of distribution, citing Shell Oil Co. v. Commercial Petroleum, Inc., 733 F.Supp. 40 (W.D.N.C.1989), aff'd 928 F.2d 104 (4th Cir.1991); Adolph Coots Co. v. A. Genderson & Sons, Inc., 486 F.Supp. 131 (D.Colo.1980); Polaroid Corp. v. Blue Dot Corp., 214 U.S.P.Q. 192, 1981 WL 48175 (D.N.J.1981), aff'd 688 F.2d 823 (3d Cir.1982); J.C. Penney Co. v. Charbeth’s Little Gen. Store, 185 U.S.P.Q. 254, 1975 WL 21130 (E.D.N.Y.1975); and J.C. Penney Co. v. Parrish Co., 335 F.Supp. 209 (D.Idaho 1971). Denbicare, however, has not raised any genuine issue of material fact that the diapers in this case deteriorated in the distribution chain after the trustee’s sale or were the type of product subject to such deterioration. At best, Denbicare has raised a triable issue as to whether the diapers were defective when they arrived in the foreign trade zone and were sold by the trustee. Even if Denbicare can prove that the diapers were defective at the time of the trustee’s sale, it will only have demonstrated that it consented to the release of the diapers into commerce with knowledge of their defectiveness; that knowledge and consent at the time of the sale bar Denbicare from now asserting that it has the right, despite the “first sale” doctrine, to prevent Toys from selling the diapers in order to protect the reputation of its mark from injuries stemming from the sale of defective diapers.

Denbicare also argues that this case is controlled by A. Bourjois & Co. v. Katzel, 260 U.S. 689, 43 S.Ct. 244, 67 L.Ed. 464 (1923). We have interpreted the holding in Katzel as being limited to “cases presenting the same ‘equities’” as that case. NEC Elecs. v. CAL Circuit Abco, 810 F.2d 1506, 1510 (9th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987). This case does not fall within the “equities” of Katzel, and, under NEC Elees., the Katzel decision does not control this case.

Finally, Denbicare argues that the bankruptcy court’s injunction, which barred the original purchasers of the diapers from selling them in the United States or Canada, created an express condition that ran with an implied license to sell the goods. Arguing by analogy to patent law, where a first sale is considered to grant the purchaser an implied license to use or sell the patented good or process, Denbicare suggests that the trademark “first sale” doctrine contains an implied license component. Denbicare cites no authority for this proposition and offers no explanation of why trademark’s “first sale” doctrine should be made to conform to patent law, rather than to copyright law, which holds that conditions placed on a first sale do not run with the goods. See, e.g., American Int’l Pictures, Inc. v. Foreman, 576 F.2d 661, 664 (5th Cir.1978) (“first sale” buyer’s disregard of restrictions on resale does not make buyer — or subsequent buyer — an infringer; copyright holder’s remedy is suit for breach of contract containing the restrictions); United States v. Wise, 550 F.2d 1180, 1187 (9th Cir.) (after first sale, “exclusive right to vend the transferred copy rests with the vendee, who is not restricted by statute from further transfers of that copy, even though in breach of an agreement restricting its sale”; vendee “may be liable for the breach but he is not guilty of infringement”), cert. denied, 434 U.S. 929, 98 S.Ct. 416, 54 L.Ed.2d 290 (1977).

III. Unfair Competition Claims

Denbicare appeals the district court’s grant of summary judgment to Toys on the various federal and state unfair competition claims. The district court held that its ruling that the “first sale” doctrine defeated Denbicare’s trademark claims also defeated “those causes of action that sound in trademark,” and “all the ... unfair competition causes of action” were therefore dismissed. Denbicare now argues that “some” of its unfair competition claims are based on deceptive trade practices rather than trademark infringement, but it does not identify which claims those are.

Denbicare’s claim under the Lanham Act § 43(a), 15 U.S.C. § 1125(a), clearly sounds in trademark; Denbicare complains that Toys’ “use of the mark ‘DenBfi and the trade dress, style, and labeling of plaintiffs[ ] ... have the effect of creating a false designation of origin or a false description as to the source” of the goods. Denbicare also alleges that Toys “competed unfairly by selling smuggled diapers at a devastating price advantage,” but it has failed to cite any authority indicating the Lanham Act offers a remedy for the sale of “smuggled” products at a price advantage, even if it has raised a genuine issue as to whether the diapers were smuggled. Denbicare argues that Toys sold the diapers without marking them as defective or irregular, but even if Denbicare has raised a genuine issue as to irregularity or defectiveness, it consented to the original sale of the diapers without such markings. Denbicare’s common-law unfair competition cause of action alleges that Toys is “palming or passing off [the Hong Kong diapers] as those of DENBICARE,” but the diapers Toys sold were in fact manufactured for the trademark owner from which Denbicare bought its trademark rights.

Denbicare also alleges that Toys violated § 17200 of California’s Business and Professions Code. “[S]tate common law claims of unfair competition and actions pursuant to California Business and Professions Code § 17200 are ‘substantially congruent’ to claims made under the Lanham Act.” Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir.1994) (citing Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc., 944 F.2d 1446, 1457 (9th Cir.1991)). Thus, since dismissal of Denbicare’s Lanham Act claim was proper, dismissal of its § 17200 claim was proper as well.

Finally, Denbicare claimed Toys violated § 17500 of the Business and Professions Code, which prohibits making any “statement,” in connection with the sale of personal property, “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” At least one reported case has held that “imitation of ... distinctive packaging and trade dress” violates § 17500, St. Ives Lab., Inc. v. Nature’s Own Lab., 529 F.Supp. 347, 350 (C.D.Cal.1981), but that case held that the same conduct also violated § 43(a) of the Lanham Act. Thus, even if Denbicare has alleged conduct that would violate § 17500, that claim was properly dismissed since the Lanham Act unfair competition claim was properly dismissed.

IV. Tortious Denial of Contract Claim

Denbicare appeals the district court’s grant of summary judgment to Toys on Den-bieare’s claim of tortious denial of contract. The district court held that New Jersey law governed the contract between the parties and granted summary judgment to Toys since New Jersey law does not recognize a tort of denial of contract. Denbicare argues that the district court erred in ruling that New Jersey law, rather than California law, governs the contract.

This issue is now moot because while this appeal was pending the California Supreme Court abolished the tort of denial of contract. Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal.4th 85, 44 Cal.Rptr.2d 420, 900 P.2d 669 (1995). Thus, even if California law governed the contract, Toys would still have been entitled to summary judgment against Denbicare’s claim for tortious denial. Therefore, the district court’s grant of summary judgment is affirmed.

CONCLUSION

We have jurisdiction over this appeal because the district court eliminated all patent claims from this case and its grant of a partial final judgment on certain nonpatent issues sufficiently separated out the nonpa-tent issues. The district court’s grant of summary judgment for Toys on Denbicare’s copyright, trademark, unfair competition, and tortious denial of contract claims is

AFFIRMED.

      . A foreign trade zone is "a restricted-access site, in or adjacent to a Customs port of entry.” 15 C.F.R. § 400.2 (1995). "Goods that are in these zones may be stored, sold, exhibited, broken-up, repacked, assembled, distributed, sorted, and mixed with foreign or domestic merchandise without being subject to customs laws. Through these zones, United States citizens [can] be involved in and, consequently financially profit from the breaking down, repacking and relabell-ing of the goods.” Ocean Garden, Inc. v. Marktrade Co., 953 F.2d 500, 504 (9th Cir.1991) (citations and internal quotation marks omitted).

      . For a general discussion of the patent jurisdiction of the Federal Circuit, see Donald S. Chi-sum, 3 Patents § 11.06[3][e] (1995).

      . The court noted, however, that it "need not decide whether Rule 54(b) can be used to direct an appeal to a particular circuit.” Id.

      . The 1976 Copyright Act does not define that phrase, or the word “importation,” and we have found no reported cases interpreting those terms as used in § 602. We have also found no reported cases concerning the general applicability of copyright laws in a foreign trade zone, although courts have held that patent and trademark laws apply in such zones. Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161, 1179-80 (11th Cir.1994) (trademarks); Ocean Garden, 953 F.2d at 504-06 (trademarks); A.T. Cross Co. v. Sunil Trading Corp., 467 F.Supp. 47 (S.D.N.Y.1979) (trademarks); G.D. Searle & Co. v. Byron Chem. Co., 223 F.Supp. 172, 174 (E.D.N.Y.1963) (patent). In addition, at least one Customs Decision has held that “[fjoreign goods entering a foreign trade zone are considered to be physically imported into the United States” though those goods are not subject to import duties in the zone. 16 Oust. B. & Dec. 701, 702 (1981) (C.S.D.82-16). This decision relied on a prior customs decision holding that "unless it clearly appears that Congress intended otherwise, the term 'importation' ... mean[s] the bringing of goods within the jurisdictional limits of the United States with intent to unlade.” Id. (citing American Customs Brokerage Co. v. United States, 72 Cust.Ct. 245, 375 F.Supp. 1360 (1974)).

      . "The 'United States’, when used in a geographical sense, comprises the several States, the District of Columbia and the Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the United States Government.” 17 U.S.C. § 101.

      . See, e.g., Paul Goldstein, Copyright § 5.6.1.2.a.

      . We rejected the test in the criminal context in United States v. Atherton, 561 F.2d 747, 751 (9th Cir.1977), and one commentator has questioned whether or not this interpretation of § 109’s predecessor should be applied to § 109 at all, given the differences between the two sections and the two Acts. 2 Melville B. Nimmer & David Nim-mer, Nimmer on Copyright § 8.12[B][3][b]-[c].

      . "As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code."


source: Caselaw Access Project

license: Public Domain

text:
    PACIFIC TELESIS GROUP; Pacific Bell; Nevada Bell, Plaintiffs-Appellants, v. UNITED STATES of America, et al.; Federal Communications Commission; Janet Reno, Attorney General, Defendants-Appellees, and California Cable Television Association, Intervenor-Appellee. US WEST, INC.; US West Communications; US West Multimedia Communications, Inc., Plaintiffs-Appellees, and Washington Independent Telephone Association; Pacific Telecom, Inc. (PTI), and its Subsidiaries, Plaintiffs-Intervenors-Appellees, v. UNITED STATES of America; Federal Communications Commission; Janet Reno, Attorney General, Defendants-Appellants.
    Nos. 94-16064, 94-35775.
    United States Court of Appeals, Ninth Circuit.
    May 24, 1996.
    Before: ALARCON and HALL, Circuit Judges, and KING, District Judge.

      The Honorable Samuel P. King, Senior District Judge for the District of Hawaii, sitting by designation.

   ORDER

The joint motion of the parties in case no. 94-16064, which was filed with the court on April 29, 1996, is GRANTED. This case is hereby remanded to the district court. The district court order of May 17, 1994, shall be vacated and the case dismissed as moot.

Case no. 94-35775 is hereby remanded to the district court. The district court shall vacate its order granting summary judgment and the case shall be dismissed as moot.


author: EUGENE A. WRIGHT, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Darryl E. JACKSON, Defendant-Appellant.
    No. 95-30211.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 6, 1996.
    Decided May 28, 1996.

      Thomas M. Gannon, United States Department of Justice, Washington, DC, and Ronald W. Skibbie, Assistant United States Attorney, Spokane, Washington, for plaintiff-appellee.
    Brian C. O’Brien, Dorn & O’Brien, Spokane, Washington, for defendant-appellant.
    Before: LAY, WRIGHT and LEAVY, Circuit Judges.

       Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.

   EUGENE A. WRIGHT, Circuit Judge.

Jackson was convicted of possession of cocaine base with intent to distribute and conspiracy to possess cocaine base with intent to distribute. On appeal he complains of several trial errors and argues that his sentence is unconstitutional. We affirm.

FACTS

In October 1994, the Spokane police orchestrated several drug transactions in which their confidential informant (“Cl”) bought crack cocaine from Steven Brown. On October 19, Brown’s girlfriend, Angela Brasch, dropped him off at a gas station for another transaction. The Cl was expecting Brown to give him crack in exchange for a handgun, but Brown demurred, saying he had to replenish his drug supply. He offered instead to give the Cl cash for the gun. They made the trade, then Brown was arrested. He told the police they could find Brasch at Tracy Nowacki’s apartment.

The police found Brasch sitting with Jackson in Brown’s car outside Nowacki’s apartment. While the police watched, Jackson went into the apartment and came out again. After he returned, they searched the ear and found a bag containing 4.3 grams of cocaine. They arrested Brasch and Jackson.

With Nowacki’s consent, the police searched the apartment. They found 852 grams of crack cocaine behind the freezer compartment of her refrigerator. They also found a cell phone, a pager, a black bag containing $2,000 and a pager receipt in the name of John Davis (an alias Jackson used); $6,400 in a denim vest in the closet, and a digital scale.

Brown, Brasch and Jackson were indicted for conspiracy to possess cocaine base with intent to distribute and possession of cocaine base with intent to distribute. Brown and Brasch pleaded guilty and testified against Jackson.

At trial, NowaeM testified that Jackson lived with her and her boyfriend Kenny Conway from time to time. He put a bag of crack cocaine in her refrigerator in December, 1993. He and Conway (who was Jackson’s cousin and was in jail at the time of Jackson’s arrest) regularly took drugs from the refrigerator, weighed them and bagged them. Nowacki drove Jackson to several drug transactions while he stayed with her. He had a key to the apartment and came by regularly to pick up crack. Even when he was not sleeping at her apartment, he kept drugs there, along with the black bag in which the police found the money and pager receipt. She also testified that on October 19, just before his arrest, Jackson came to her apartment and got something out of the refrigerator.

Braseh testified that she dated Jackson from January to March, 1994. When they broke up, she took some of his belongings, including five ounces of crack. She said that when Jackson learned of the theft, he threatened to kill her or members of her family unless she sold drugs for him to work off her debt. She made several sales between March and October. She told the jury that on the day of their arrest she was meeting Jackson to pick up a quarter-ounce of cocaine for Steve Brown.

Jackson testified at trial. He claimed to have no knowledge of the cocaine in No-wacki’s refrigerator. He said he was meeting with Braseh, who was pregnant, to discuss arrangements for their unborn child.

Jackson was convicted of conspiracy to possess 4.3 grams of cocaine base with intent to distribute, and of possession of 856.3 grams with intent to distribute. He was sentenced to 188 months.

DISCUSSION

I. “Immunized Witness” Instruction

Nowacki was never arrested in connection with the cocaine found in her apartment. In return for her cooperation, the government paid her $700 for relocation expenses. The court was prepared to instruct the jury that, because Nowacki received “compensation” from the government, it should “examine Miss Nowaeki’s testimony with greater caution than that of ordinary witnesses.”

The defense argued that in addition to paying her, the government implicitly immunized Nowacki, promising that she would not be prosecuted if she testified that the drugs belonged to Jackson. Defense counsel suggested an instruction that would identify Nowacki as an immunized witness and caution the jury to examine her testimony with greater care and consider her motive to falsify

The court found that there was no evidence in the record that Nowacki had been immunized. The judge agreed, over government objection, to replace the word “compensation” in the instructions with the word “benefits” so as to “allow both of you to argue your theories of the case.” Jackson argues that this instruction was insufficient to permit him to present his theory that Nowacki was effectively immunized and had a motive to implicate him.

“It is settled law that a defendant is entitled to have the judge instruct the jury on his theory of the case, provided that it is supported by law and has some foundation in the evidence.” United States v. Sarno, 73 F.3d 1470, 1485 (9th Cir.1995) (quotations omitted). We review for abuse of discretion the district court’s “determination of the factual basis for a requested instruction,” as well as the “form in which the court has expressed the defendant’s theory of the case.” Id.

This record reveals no evidence that Nowacki was immunized, and we therefore find no error in the court’s instruction. Contrary to Jackson’s argument, the word “benefits” gave his implicit immunity theory the weight it deserved.

II. Prosecutorial Vouching

Jackson contends that the prosecutor vouched for Nowacki’s credibility in his closing argument. Because there was no objection to his comments, we review for plain error. We reverse only if the error is plain, affects substantial rights, and “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. at 1779 (quotation and alteration omitted).

“As a general rule, a prosecutor may not express his ... belief in the credibility of government witnesses. Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness’s veracity, or suggesting that information not presented to the jury supports the witness’s testimony.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.1993) (citations omitted). But the prosecutor must have “reasonable latitude in fashioning closing arguments,” and can make reasonable inferences based on the evidence. Id.

Jackson points to two incidents of vouching. In one, the prosecutor told jurors, “I imagine the police officers would have been a little bit upset if it was found out later that Miss Nowacki had been lying to them [about ownership of the cocaine].” This was not vouching. It was a reasonable inference from the evidence. The police had questioned Nowacki and relied on her account. The prosecutor gave no personal assurance that she was telling the truth and never suggested that the police would be able to determine whether she lied. Cf. United States v. Roberts, 618 F.2d 530, 533 (9th Cir.1980) (improper for prosecutor to tell jury that police were monitoring the trial to determine that witness testified truthfully); United States v. Shaw, 829 F.2d 714, 717 (9th Cir.1987) (finding vouching where prosecutor implied that he would be able to determine whether witness was testifying truthfully).

The prosecutor also told jurors that “[t]here was no benefit of lack of incarceration to Ms. Nowacki in this ease. She’s not guilty of a crime.” He argued that she did not possess the cocaine under the legal definition of “possession” laid out in the jury instructions.

Even if we were to hold that these comments were vouching, we would not reverse because they did not “seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. at 1779. In deciding whether to reverse for vouching, we consider the form of the statement, the degree of personal opinion asserted, the seriousness of the vouching, the timing, the importance of the witness and the vouching to the case, the extent to which the witness’s credibility was attacked and any curative instructions. Necoechea, 986 F.2d at 1278. Few of these factors favor Jackson.

The prosecutor’s remarks were an invited response to the defense’s attempt to paint Nowacki as an uncharged accomplice. United States v. de Cruz, 82 F.3d 856, 863 (9th Cir.1996) (holding prosecutor’s improper rebuttal argument to be harmless in part because it was an invited response). There was abundant evidence against Jackson, and although Nowacki was an important witness, her testimony was corroborated in most respects by physical evidence and by Brasch. The jury was instructed to view her testimony with caution and was told that the arguments of counsel were not evidence. There was no plain error in allowing this argument.

III. Evidence of Other Acts

Jackson moved the court to prohibit any mention of his alleged membership in the Crips gang, his prior arrest for cocaine possession at a notorious nightclub and any pri- or drug sales. After hearing argument, the court ruled that his gang membership and prior arrest could not be mentioned but that incidents of prior drug sales could be admitted “as [they] relate[ ] to issues concerning [the conspiracy count] in this matter.”

Jackson contends that the district court abused its discretion by admitting this evidence. He argues that the evidence was inadmissible under Federal Rules of Evidence 404(b) and 403. We review for abuse of discretion the court’s decision to admit this evidence, but we consider de novo whether evidence is directly relevant to the crime charged or relevant only to “other crimes.” United States v. Santiago, 46 F.3d 885, 888 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995).

Under Rule 404(b), evidence of “other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). It may, however, be admitted for other purposes, including “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Id. Rule 404(b) “is a rule of inclusion.” United States v. Meling, 47 F.3d 1546, 1557 (9th Cir.1995) (quotation omitted). Unless the evidence of other crimes tends only to prove propensity, it is admissible. United States v. Ayers, 924 F.2d 1468, 1473 (9th Cir.1991); see also Meling, 47 F.3d at 1557 (“[E]vidence is admissible under Rule 404(b) if it is relevant to an issue in the case other than [the] defendant’s criminal propensity”). We must consider several factors to determine if Rule 404(b) permits admission, such as whether the evidence proves a material element of the offense charged, whether it is similar to the offense charged, whether there is sufficient evidence of the prior conduct and temporal proximity. United States v. Basinger, 60 F.3d 1400, 1408 (9th Cir.1995).

The disputed evidence satisfies these requirements. The government introduced evidence only of similar drug transactions that involved drugs stored in NowacM’s refrigerator, or that involved Jackson and the coconspirators. This evidence tended to prove the material elements of knowledge and intent. It also proved opportunity, plan and preparation. It served to link the coconspirators and explain their criminal relationship. Jackson does not contend that there was insufficient evidence of the prior conduct. Finally, the court admitted prior acts from only a limited time period.

Jackson also contends that the evidence of prior drug transactions violated Rule 403 and that the court never engaged in an explicit Rule 403 analysis. See Meling, 47 F.3d at 1557 (“Evidence admissible under Rule 404(b) may nevertheless be excludable under Rule 403 if its prejudicial impact outweighs its probative value.”). The district court, however, is not required to recite Rule 403 for the record. United States v. Ono, 918 F.2d 1462, 1465 (9th Cir.1990). “It is enough that this court can conclude, based on a review of the record, that the district court considered Rule 403’s requirements.” Id. Here, immediately before the court’s initial decision to admit the evidence, Jackson’s counsel argued repeatedly that it was unduly prejudicial. We find that the court “implicitly made the necessary finding.” United States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir.1992) (finding implicitly made where trial brief reminded judge that probative value and unfair prejudice must be balanced); see also Ono, 918 F.2d at 1465. There was no error.

IV. Cocaine and Cocaine Base

Section 841(b)(1)(A) prescribes a 10-year minimum penalty for any person convicted of possession with intent to distribute

(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of-
... (II) cocaine, its salts, optical and geometric isomers, and salts of isomers;
(IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III); ...
(in) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base....

21 U.S.C. § 841(b). Jackson was sentenced under subsection (iii) for possession of cocaine base.

At his sentencing hearing, Jackson presented expert testimony that a substance containing “cocaine” necessarily contains “cocaine base.” He also submitted evidence from the record of United States v. Davis, 864 F.Supp. 1303 (N.D.Ga.1994). In that ease, the district court, presented with expert testimony that cocaine and cocaine base were synonymous, held that section 841(b) provides two different penalties for the same offense. It applied the rule of lenity and sentenced the defendant under the provisions for “cocaine” rather than “cocaine base.” Id. at 1309.

Jackson argues that we should follow Davis. We decline to do so, as have the other circuit courts that have faced this issue. See, e.g., United States v. Booker, 70 F.3d 488, 489-91 (7th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1334, 134 L.Ed.2d 484 (1996); United States v. Jackson, 64 F.3d 1213, 1219-20 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996); United States v. Fisher, 58 F.3d 96, 98-100 (4th Cir.), cert. denied, — U.S.-, 116 S.Ct. 329, 133 L.Ed.2d 229 (1995).

The government does not dispute Jackson’s argument on scientific grounds. It concedes that, to a chemist, cocaine and cocaine base are the same substance. But it counters that the two terms are not “legislatively synonymous,” and that Congress intended the term “cocaine base” to denote the smokable form of cocaine.

United States v. Shaw, 936 F.2d 412, 414-16 (9th Cir.1991), supports this position. In that case, the defendants argued that they could not be sentenced under the “cocaine base” provisions because the government had not proven that the cocaine they possessed contained a hydroxylion. A hydroxylion is a necessary component of a “base,” as that term is used in chemistry. We held that the term “cocaine base” is not limited to substances that test basic rather than acidic. Looking to the legislative history of section 841(b), we found that Congress intended “cocaine base” to refer to “cocaine that can be smoked, unlike cocaine hydrochloride.” Id. at 416. We held that as long as cocaine and cocaine base, as those terms were understood by Congress, are “objectively distinguishable,” the statute is not vague. Id.

Shaw implies that the distinction between cocaine and cocaine base may be a practical one and not a scientific one: we are not bound to construe the statute as if it were a chemistry text. Shaw also provides a workable distinction between “cocaine” and “cocaine base” as those terms are used in the statute: “cocaine base” is the form of the drug that is intended to be smoked. As the Seventh Circuit remarked in Booker, “Congress intended ‘cocaine base’ to mean crack.” 70 F.3d at 493. By crack, the 1986 Congress meant “a new, smokable form of cocaine that was more dangerous than powder cocaine, less expensive and highly addictive.” Id.

Jackson argues that this court should not look to the legislative history to resolve any ambiguity in a criminal statute. See United States v. R.L.C., 503 U.S. 291, 308, 112 S.Ct. 1329, 1339-40, 117 L.Ed.2d 559 (1992) (Scalia, J., concurring) (arguing that legislative history cannot clarify an ambiguous criminal statute). But the rule of lenity applies only if “ ‘reasonable doubt persists even after resort to the language, structure, legislative history and motivating policies of the statute.’ ” Id. at 305-06, 112 S.Ct. at 1336 (plurality opinion) (quoting Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990)), The Supreme Court has not rejected the use of legislative history in this context, and Ninth Circuit precedent makes use of it to define “cocaine base.” See Shaw, 936 F.2d at 415-16.

Section 841(b) draws a sufficient legal distinction between “cocaine” and “cocaine base.” We need not resort to the rule of lenity.

V. Rationality of Sentencing Disparity

Jackson argues that the 100:1 ratio in the sentencing provisions for crack and powder cocaine offenses violates the Equal Protection Clause. He acknowledges that we have already rejected this argument. See United States v. Harding, 971 F.2d 410, 413 (9th Cir.1992), cert. denied, 506 U.S. 1070, 113 S.Ct. 1025, 122 L.Ed.2d 170 (1993). He contends that the rational basis for the 100:1 ratio has eroded because the Sentencing Commission, after some study, recently recommended that the disparity be eliminated. Congress disapproved its recommendation. Pub.L. No. 104-38, 109 Stat. 334 (1995).

We do not agree that the Commission’s report, or Congress’s decision to reject it, affects the precedential value of our ruling that Congress had a rational basis for the 100:1 ratio. Several members of the committee dissented from the recommendation to eliminate the sentencing disparity. They argued that, although the differential was too high, there are good reasons to treat crack differently from powder cocaine, including the quicker and higher “highs” from crack, the youth of its users and sellers, the low per-dose cost that leads to easy distribution and the violence associated with distribution of the drug. These reasons are essentially those that have been attributed to Congress’s initial decision to enact the 100:1 ratio. See Harding, 971 F.2d at 413-14. That decision was rational, even though it differs from the Sentencing Commission’s current recommendation regarding the magnitude of the disparity. Id.; accord, Booker, 70 F.3d at 494 n. 24.

CONCLUSION

We affirm. There were no trial errors requiring reversal. We find no ambiguity in section 841(b) that would require resort to the rule of lenity and there is still a rational basis for the 100:1 cocaine base/cocaine sentencing disparity.

AFFIRMED.

      . The instruction given was: “You have heard testimony that Tracy Nowacki, a witness, has received benefits from the government in connection with this case. In evaluating her testimony, you should consider the extent to which it may have been influenced by the receipt of benefits from the government. You should examine Miss Nowacki’s testimony with greater caution than that of ordinary witnesses. Although it is ultimately up to you to decide how much weight her testimony deserves.”

      . Jackson also argues that Nowacki was an accomplice, and that the jury should have been instructed to view her testimony with caution for that reason. Because the accomplice argument was not raised at trial, we review for plain error. Fed.R.Crim.P. 52(b). The cautionary instruction the court gave with respect to Nowacki's testimony is nearly the same as the one it gave regarding Jackson's charged accomplices, Braseh and Brown, and Jackson’s counsel was free to argue that Nowacki was an accomplice. We find no error that could have "affected the outcome of the District Court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993).

      . Jackson argues that the court did not give an adequate limiting instruction. Although he nev- . er requested an instruction at trial, the court sua sponte told the jurors that they must "consider the evidence in the case for only those purposes for which it has been admitted” and cautioned that they must “[r]emember that the defendant is on trial only for the crimes charged. Not for anything else.” Jackson referred specifically to the judge’s instructions in his closing argument. In these circumstances, the instruction was sufficient.

      . Jackson argues that the court should have excluded evidence of a trip he and Brasch made to buy drugs in California. We do not determine whether the court properly admitted this evidence because any error was harmless in light of the strength of the government's case.

      . The Seventh Circuit, confronted with similar expert testimony, explained in detail the scientific basis for the defendant’s argument. Booker, 70 F.3d at 489-91.

      . Jackson argues that Shaw is not controlling because it was based on the scientifically incorrect premise that cocaine hydrochloride contains no cocaine base. We do not address this question because we draw from Shaw no conclusion about the chemical composition of cocaine and cocaine base. Rather, we follow only Shaw's holding that the "correct definition of cocaine base ... as a matter of statutory interpretation” is grounded in congressional intent, and not in chemistry. Of course, the statute must adequately convey this intent so that it provides fair notice of what conduct is prohibited. Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). Jackson does not argue that the statute failed to give such notice.

      .There was expert testimony that cocaine hydrochloride is technically smokable. But the expert made clear that it is not intended to be smoked, and that, "if given a choice, no one would smoke cocaine hydrochloride because it would bum their nostrils and is very caustic and very little of that would get in their system.”

      . We note that it may be unnecessary to consult the legislative history. At least one other court has concluded that section 841(b) is not ambiguous without relying on it. In United States v. Fisher, 58 F.3d 96, 99 (4th Cir.1995), the Fourth Circuit employed the canon of statutory construction that a court should "give meaning to all statutory provisions and seek an interpretation that permits us to read them with consistency.” It reasoned that clause (ii), which prescribes the penally for cocaine must necessarily exclude cocaine base, because clause (iii), which gives heavier penalties for cocaine base, would otherwise be rendered superfluous. Because the court found the statute to be unambiguous, it found there was no need to look to the legislative history. Id.

      . Although Congress rebuffed the Commission’s suggestion that the disparity be eliminated entirely, it did request that the Commission study the matter further and recommend a sentencing ratio of less than 100:1 but more than 1:1. This directive indicates that Congress may at a later time consider changing the sentencing structure, but it does not affect our decision that there is a rational basis for the 100:1 ratio.

      .Jackson also argues that because the sentencing disparity has a disparate impact on African-Americans, the court should apply “active” or "biting" rational basis scrutiny. This novel suggestion is foreclosed by United States v. Dumas, 64 F.3d 1427, 1430-32 (9th Cir.1995) (applying rational basis review where defendant could not make out case of racially discriminatory intent in enactment or application of section 841).


author: GEORGE, District Judge: PREGERSON, Circuit Judge,

text:
    Jeanette REYNOLDS, as Administrator of the Estate of Paul Reynolds, deceased, and individually, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO; Jeffrey Jackson, Jim Roache, Sheriff, Defendants-Appellees. Denise REYNOLDS, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO; Jeffrey Jackson, Jim Roache, Sheriff, Defendants-Appellees.
    No. 94-56262.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 6, 1996.
    Decided May 28, 1996.

      Michael L. Crowley, San Diego, California, for plaintiffs-appeEants.
    Gerald P. Schneeweis, Douglas J. Collodel, and Richard H. Nakamura, Jr., Morris, Po-lich & Purdy, San Diego, California, for defendant-appellee Jackson.

      Before: PREGERSON, T.G. NELSON, Circuit Judges, and GEORGE, District Judge.

       Honorable Lloyd D. George, Chief United States District Judge for the District of Nevada, sitting by designation.

   Opinion by Judge GEORGE; Dissent by Judge PREGERSON.

GEORGE, District Judge:

Paul Reynolds (“Reynolds”) was shot to death by Deputy Jeffrey Jackson (“Jackson”) during an altercation near a gas station. Plaintiffs-appellants Jeanette and Denise Reynolds, decedent’s wife and mother respectively, challenge the district court’s determination that defendant-appellee Deputy Jackson was entitled to summary judgment against their civil rights claims because he was protected from liability under the doctrine of qualified immunity. Appellants also dispute the district court’s holding that there is no basis for liability against Jackson under California Civil Code Section 52.1 nor under state tort claims for negligence and wrongful death. This court has jurisdiction over appeals from final judgments under 28 U.S.C. §§ 1291 and 1294. We affirm in part and remand in part.

I. FACTS AND PROCEDURAL BACKGROUND

At approximately 1:00 a.m. on February 18, 1992, Joseph Kirchevel, a gas station attendant, noticed the decedent, Paul Reynolds, behaving in a strange manner near the gas pumps. As Reynolds approached the window, Kirchevel asked if he could help Reynolds. Reynolds responded, “Yes, I think you can,” and placed his face up against the glass of the service window. Reynolds then walked away from the window, picked up a squeegee, and started swinging it back and forth. Reynolds placed the squeegee on the cashier’s tray at the service window, Kirchevel asked Reynolds to replace the squeegee and called the Sheriffs department. After calling the department, Kirchevel noticed that Reynolds had drawn a knife. Kirchevel contacted the Sheriffs department again and informed them that Reynolds now had a weapon.

At this time, appellee Deputy Jeffrey Jackson was on routine patrol in the area. Thomas Cornish, a passerby, stopped Deputy Jackson and told him that someone was acting strangely down the road and appeared to have some type of bottle in his hand. Deputy Jackson proceeded to the location specified by Cornish. As Deputy Jackson approached the gas station he noticed Reynolds’s car stopped in the roadway, blocking traffic with the driver’s side door open.

Deputy Jackson exited his vehicle and proceeded toward Reynolds’s car on foot. While he was standing next to Reynolds’s car, Robert Wapnowski, a truck driver who was delivering gasoline to the station, yelled at Jackson to stop Reynolds. Wapnowski also indicated that Reynolds had some kind of knife. Jackson saw Reynolds being chased from the gas truck by Wapnowski. Jackson drew his gun and told Reynolds to stop. Jackson noticed that Reynolds was holding a knife and ordered him to put his hands in the air. Reynolds complied, and about this time, Michael Tucker, a passing motorist, stopped to observe the incident.

After Reynolds placed his hands in the air, he walked to the middle of the road. Deputy Jackson followed and told Reynolds to get on the ground, Reynolds complied. Jackson then moved toward Reynolds and told him to drop the knife. Reynolds put the knife on the ground next to his body. According to Wapnowski, Jackson then slowly approached Reynolds, repeatedly telling Reynolds not to move. Nevertheless, as Jackson moved closer, it is undisputed that Reynolds suddenly sat up and grabbed the knife.

Deputy Jackson alleges that he then moved behind Reynolds and attempted to disarm Reynolds by kicking him, but that he missed. Wapnowski, however, did not see Jackson’s attempt to kick Reynolds. In addition, in his first interview after the incident, Jackson did not mention that he tried to disarm Reynolds by kicking him.

Deputy Jackson continued to move toward Reynolds from behind and eventually put his knee in Reynolds’s back and his gun on Reynolds’s neck. Again, Jackson ordered Reynolds to drop the knife. Instead, it is undisputed that Reynolds twisted his body and made a sudden, backhanded, upward swing toward Jackson with his right hand which was holding the knife. According to Wapnowski, “[Reynolds’s] whole body — it looked like his whole body has twisted to the right. Just — that’s all I can say. He just turned to his right real quick like that. And that was after he was warned not to move.” Michael Tucker, the motorist who stopped to observed the incident, saw the weapon in Reynolds’s hand and Reynolds “swinging” it toward Deputy Jackson.

At this time, Deputy Jackson stated that he feared for his life and pulled the trigger on his gun, but the gun did not fire. Jackson immediately pulled the trigger again. According to Jackson, he took half a step back before pulling the trigger again and fired the gun approximately six inches from Reynolds’s neck. This time the gun fired. Reynolds died of a single gunshot wound to the neck.

Richard Whalley, a forensic criminologist and one of appellants’ experts, speculates that Jackson’s gun did not fire the first time because it was pressed too hard into Reynolds’s neck. In addition, Whalley believes that the fatal wound was made while the gun was actually in contact with Reynolds’s neck, rather than six inches away.

Following the incident, Jeanette and Denise Reynolds, the decedent’s wife and mother respectively, each filed a civil rights action against Deputy Jackson, San Diego County Sheriff Jim Roach, and the County of San Diego, alleging that Jackson’s use of force was unreasonable and that Roach and the County were liable for Jackson’s actions because they failed to enforce laws and regulations pertaining to the use of deadly force. Both appellants also invoked the district court’s pendent jurisdiction to consider claims under California Civil Code Section 52.1 and various state law claims including wrongful death, excessive force, assault and battery, negligence, and negligent hiring. Jeanette Reynolds also sued for loss of consortium and violation of the California Public Records Act. Appellants’ actions were consolidated.

Deputy Jackson filed a motion for summary judgment, which the County of San Diego and Sheriff Jim Roach joined. According to the district court, the joinder did not properly specify which of Jackson’s legal arguments applied to the County and which applied to Roach. Therefore, the district court denied the County of San Diego’s and Roach’s motions for summary judgment.

The district court granted Deputy Jackson’s motion for summary judgment for all allegations directed against Jackson in the complaint. Reynolds v. County of San Diego, 858 F.Supp. 1064 (1994). The court determined that Jackson was immune from liability for the appellants’ civil rights claims because he acted reasonably under the circumstances. In addition, the court ruled that Deputy Jackson was immune from appellants’ state law claims for negligence and assault and battery, and Jeanette Reynolds’s claim of wrongful death. Moreover, the court ruled that Denise Reynolds did not have standing under California state law to bring a state law wrongful death action because she is neither the intestate heir of the decedent nor was she dependent on the decedent. Finally, the court found that Jeanette Reynolds could not maintain a cause of action under California Civil Code Section 52.1.

II. STANDARD OF REVIEW

The district court’s decision to grant a motion for summary judgment is reviewed de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). The court may affirm on any ground supported by the record. In re Apple Computer Secs. Litig., 886 F.2d 1109, 1112 (9th Cir.1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3229, 110 L.Ed.2d 676 (1990).

III. DISCUSSION

Appellants appeal the district court’s grant of summary judgment in favor of Jackson on their federal civil rights claims. They contend that because there are genuine issues of material fact regarding the reasonableness of Jackson’s conduct, the district court erred in determining that Jackson was entitled to summary judgment on the issue of qualified immunity. Additionally, Jeanette Reynolds maintains that the district court erred in determining that she has no cause of action under California Civil Code Section 52.1. Appellants also state that the district court erred in granting summary judgment to Jackson on appellants’ negligence and wrongful death actions. Appellants, however, do not argue that the district court’s finding that Denise Reynolds lacks standing to pursue a wrongful death claim was error. Therefore, the court considers that issue waived. See Miller v. Fairchild Industries, Inc., 797 F.2d 727, 738 (9th Cir.1986), cert. denied, 494 U.S. 1056, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1990).

A. Summary Judgment Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is only proper where the pleadings, discovery, and affidavits show that there is “no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all of the evidence in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). However, “in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden,” Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986), while leaving “credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts” to the jury. Id. at 255, 106 S.Ct. at 2513. Once the moving party meets its initial burden, a nonmoving party must go beyond the pleadings and, by its own affidavits or by the depositions, answers to interrogatories, and admissions on file, come forth with specific facts to show that a genuine issue of material fact exists and that a reasonable jury could return a verdict for the nonmoving party. Hughes v. United States, 953 F.2d 531, 541-42 (9th Cir.1992); Lindahl v. Air France, 930 F.2d 1434, 1436-37 (9th Cir.1991) (citing Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986)); Fed.R.Civ.P. 56(e).

B. Civil Rights Claims

The Supreme Court has ruled that to hold an official liable for violating an individual’s constitutional rights, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Hunter v. Bryant, 502 U.S. 224, 226, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (qualified immunity protects officials from liability if a reasonable officer could have believed his actions were lawful in light of clearly established law and the information the officer possessed). The Court has given further instruction on this standard by stating that, viewed in light of pre-existing law, the unlawfulness of the official action must be apparent. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. The standard therefore provides that “ ‘regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by the appellant was “not clearly established” or the officer could have reasonably believed that his particular conduct was lawful.’” DeNieva v. Reyes, 966 F.2d 480, 484-85 (9th Cir.1992) (quoting Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991)). Finally, the Supreme Court has stressed “the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter, 502 U.S. at 227, 112 S.Ct. at 536 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). We thus have acknowledged that immunity issues should be “determined by the district court at the earliest possible point in the litigation” and “[w]here the underlying facts are undisputed, a district court must determine the issue on a motion for summary judgment.” Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993).

Given this interpretation, we make three inquiries to determine whether the defense of qualified immunity is available to an officer. First, we identify the right which was allegedly violated. Second, we determine whether the law governing the official’s conduct is clearly enough established to alert a reasonable officer to its constitutional parameters. Third, we consider whether, under that law, a reasonable officer could have believed that his conduct was lawful DeNieva, 966 F.2d at 484-85; Act Up!/Portland, 988 F.2d at 871.

Appellants allege that Deputy Jackson violated their constitutional' rights because he wrongfully used deadly force in his encounter with Reynolds, thereby depriving them of his companionship. “There is no question that the apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Curnow v. Ridgecrest Police, 952 F.2d 321, 324 (9th Cir.1991), cert, denied, 506 U.S. 972, 113 S.Ct. 460, 121 L.Ed.2d 369 (1992). Appellants dispute only the third prong of the test, maintaining that a reasonable officer in Jackson’s situation would not have believed that the use of deadly force was lawful.

A reasonable officer’s belief that his conduct was lawful must be analyzed under an objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872-73, 104 L.Ed.2d 443 (1989). In conducting such an analysis, the court must balance the nature and quality of the intrusion against the governmental interests at stake. Curnow, 952 F.2d at 324-25. “The court’s inquiry is therefore whether the totality of the circumstances (taking into consideration the facts and circumstances of the particular case; including the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the officers or others; and whether he is actively resisting arrest or attempting to evade arrest by flight) justified the particular type of seizure.” Id. at 325. The Supreme Court has held that an officer’s use of deadly force is reasonable if “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 1697, 85 L.Ed.2d 1 (1985). All determinations of unreasonable force, however, “must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872.

Under this standard, Deputy Jackson’s use of deadly force was reasonable. Given Reynolds’s erratic behavior and the fact that he had a weapon, it was reasonable for Jackson to attempt to restrain him. Cornish had told Jackson of Reynolds’s strange behavior. Upon arriving at the scene, Jackson heard Wapnowski call out at him to stop Reynolds. The gas station attendant also perceived Reynolds as a threat — twice calling the Sheriffs Department to report Reynolds’s behavior. It was thus reasonable for Jackson to consider Reynolds a threat to the people in the area. Moreover, it was reasonable for Jackson to attempt to disarm Reynolds by approaching him from behind and by telling him to drop the weapon. Reynolds was not in a confined area and there were other people in the vicinity. Finally, under the circumstances, it was reasonable for Deputy Jackson to fire his weapon. He had warned Reynolds to drop the weapon and not move. Up to that point, Reynolds had complied with some of Jackson’s commands. Jackson, therefore, had no reason to believe Reynolds did not understand his orders. By suddenly swinging at Jackson with the knife, Reynolds threatened Jackson’s life or at least put him in fear of great bodily injury. Therefore, the district court correctly ruled that Jackson was immune from liability.

Appellants argue that the trial court erroneously extended the doctrine of qualified immunity. According to appellants, it was error for the district court to find that immunity questions should be resolved at the earliest possible stage of litigation. Appellants contend that in Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th Cir.1994), the court questioned whether the ultimate determination of the objective reasonableness of an officer’s actions should be left to the judge or the jury. In Sloman, the court stated that there is no reason to think that having the jury rather than the judge assess the reasonableness of officer’s conduct would be inimical to the policies that govern immunity. However, this observation was made in the context of a discussion about whether the judge or jury should make the reasonableness determination where “officials are forced to go to trial because their right to immunity turns on the resolution of disputed facts” — not in the context of a summary judgment which is intended to test the existence of genuine issues of fact. Indeed, in Sloman, we reiterated that in the context of a motion for summary judgment, “immunity ‘ordinarily should be decided by the court’ and should not ‘routinely’ be sent to the jury,” 21 F.3d at 1467 (quoting Hunter v. Bryant, 502 U.S. at 228, 112 S.Ct. at 537), and that in “the ‘ordinary5 or routine case it should be decided at the earliest possible moment to spare the appellee the trauma of trial or its anticipation.” Id. at 1468.

Appellants also maintain that summary judgment in favor of Jackson was inappropriate because genuine issues of material fact exist regarding the reasonableness of Jackson’s conduct. They claim that the expert testimony of criminologist Richard Whalley and police tactics expert Lou Reiter creates a genuine issue of material fact regarding the reasonableness of Jackson’s conduct.

In his deposition, Whalley testified that Jackson caused Reynolds to make the sudden movement by pressing his gun so hard into Reynolds’s neck. According to Whalley, Reynolds was turning around to see what was pressing into his neck. Whalley also concluded that Reynolds’s wound was a contact wound, suggesting that Jackson’s gun was actually touching Reynolds’s neck when it was fired rather than being six inches away as Deputy Jackson had reported. According to appellants, “[i]f the jury was to believe the findings and testimony of Whalley they would have to disbelieve Deputy Jackson’s testimony in whole or at least in part and would likely find for the appellants.”

Whalley’s conclusion that Jackson caused Reynolds to move suddenly fails to raise an issue of material fact about the reasonableness of Jackson’s conduct. Whalley conducted tests on the same type of gun Jackson used and determined that the gun would not fire when eight pounds of pressure were on a mechanism of part of the gun. Whalley speculates that the same amount of pressure must have been applied to Reynolds’s neck when Jackson first pulled the trigger and the gun did not fire. Whalley then extrapolates that Reynolds suddenly moved in response to the pressure that was placed on his neck. Whalley bases this conclusion not on any scientific or medical knowledge, but rather on this “understanding of human nature and human factors and working in gunshot cases.” The tests Whal-ley conducted may raise an issue of fact regarding why the gun did not fire-an immaterial issue; however; the conclusions about why Reynolds moved are nothing more than speculation and fail to raise an issue of fact about the reasonableness of Jackson’s con-ducta material issue. United States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir.1981) (“in the context of a motion for summary judgment, an expert must back up his opinion with specific facts”); Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir.1985) (a party may not avoid summary judgment solely on the basis of an expert’s opinion that fails to provide specific facts from the record to support his eoncluso-ry allegations).

While we have recognized that a claim of excessive force may be based on a showing that officers “used excessive force in creating the situation which caused [the decedent] to take the actions he did,” Alexander v. City of and County of San Francisco, 29 F.3d 1355, 1366 (9th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 735, 130 L.Ed.2d 638 (1995), such a claim must be analyzed under the reasonableness standard. Id. (“a police officer’s use of force in apprehending a suspect violates the Fourth Amendment if it is unreasonable in light of the facts and circumstances confronting the officer”) (citing Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989)). In Alexander, we determined that a factual issue existed regarding whether police officers used excessive force when they stormed the house of a man who they knew to be a mentally ill, elderiy, half-blind recluse who had threatened to shoot anyone who entered. Id. at 1366-67.

Nevertheless, as the Supreme Court explained in Graham, when assessing the reasonableness of an officer’s conduct, the court must allow for the fact that officers are forced to make split second decisions in tense situations. An officer cannot be expected to accurately anticipate all of the possible responses a subject may have to his commands and then tailor his actions accordingly in order for his conduct to fall into the category of what is considered reasonable. Thus, even if Jackson was applying some pressure to Reynolds’s neck with his gun, his conduct still falls within the parameters of what is reasonable given that he was in a rapidly evolving situation and was dealing with a subject who was behaving strangely, had a weapon, and posed a threat of serious injury to others in the area.

Appellants contend that the discrepancy between Jackson’s statement that he shot from six inches away and Whalley’s conclusion that Reynolds suffered a contact wound would cause a reasonable jury to discount Jackson’s testimony and find for the appellants. This alleged discrepancy fails to raise a genuine issue of material fact regarding the reasonableness of Jackson’s use of force. Cases involving an officer’s use of deadly force can pose difficult problems for determining the reasonableness of the officer’s conduct because the officer appellee is often the only surviving eyewitness. See Hopkins v. Andaya, 958 F.2d 881, 885-88 (9th Cir.1992), cert. denied, — U.S. -, 115 S.Ct. 1097, 130 L.Ed.2d 1065 (1995). In such eases, the court must examine all of the evidence in the record as well as any expert testimony to determine if the officer’s story is internally consistent and consistent with other known facts. Id. Here, however, the material aspects of Jackson’s version of events is corroborated by two independent eyewitnesses. Both Wapnowski and Tucker testified that Reynolds suddenly swung at Jackson. Furthermore, appellants fail to explain how the inconsistency regarding the distance of the gun from Reynolds when fired suggests that the use of force was unreasonable. Illuminating a potential minor inconsistency in Deputy Jackson’s version of events is insufficient to raise a genuine issue of material fact regarding the reasonability of the use of force, particularly given the independent eyewitness testimony. City of Vernon v. Southern Cal. Edison Co., 955 F.2d 1361, 1369 (9th Cir.), cert. denied, 506 U.S. 908, 113 S.Ct. 305, 121 L.Ed.2d 228 (1992) (a party cannot defeat a summary judgment motion by producing a “mere scintilla of evidence to support its case”); Neely v. St. Paul Fire and Marine Ins. Co., 584 F.2d 341, 344 (9th Cir.1978) (while summary judgment is improper if sufficient evidence supporting a claimed factual dispute is adduced, “this evidence must be ‘significantly probative’ of the disputed fact”).

Similarly, appellants allege that police tactics expert Lou Reiter’s testimony creates a genuine issue of material fact regarding the reasonableness of Jackson’s use of deadly force. In his deposition, Reiter stated that Jackson used “reckless” tactics to restrain Reynolds. Reiter concluded that Jackson should have called for back-up, talked to Reynolds in calm tones, and refrained from approaching Reynolds while he had the knife. Plaintiffs argue that Reiter’s testimony creates a genuine issue of material fact regarding whether his conduct was objectively reasonable.

Reiter’s findings, however, are insufficient to raise a genuine issue of material fact regarding the reasonability of Jackson’s use of force. The fact that an expert disagrees with an officer’s actions does not render the officer’s actions unreasonable. The inquiry is not “whether another reasonable or more reasonable interpretation of events can be constructed ... after the fact.” Hunter, 502 U.S. at 228, 112 S.Ct. at 537. Rather, the issue is whether a reasonable officer could have believed that his conduct was justified. “This is so notwithstanding that reasonable officers could disagree on the issue.” Act Up!/Portland, 988 F.2d. at 872. Given that Reynolds was behaving in a strange manner and wielded a knife, it was reasonable for Jackson to try to confine and attempt to disarm him. In addition, because Reynolds’s sudden, swing at Jackson threatened the officer with death or at least great bodily injury and, if successful in disabling the police officer, others in the area could have been in great danger, it was reasonable for Jackson to respond with deadly force. The fact that Reiter disagrees with the steps Jackson took is not enough to raise a genuine issue of material fact regarding the reasona-bility of Jackson’s conduct.

C. Claims under California Civil Code Section 52.1

Appellants appeal the district court’s ruling that summary judgment was proper as to Jeanette Reynolds’s claim under California Civil Code Section 52.1. Appellants maintain that California Civil Code Section 52.1 “by its terms creates a cause of action under the California Constitution” and that the statute “represents an independent state basis for liability.” Appellants argue that the district court erred in dismissing the claim because there is “no authority for the proposition that federal qualified immunity standards apply to the California Constitution.”

Appellants misinterpret the reasoning of the district court on this issue. California Civil Code Section 52.1 provides that:

(b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may-institute and prosecute in his or her own behalf a civil action for damages including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right secured or rights secured.

As the district court explained, Section 52.1 does not provide any substantive protections; instead, it enables individuals to sue for damages as a result of constitutional violations. Appellants, however, fail to specify any conduct of Jackson’s that constituted a violation of the state constitution but not the federal constitution. In other words, appellants have not accused Jackson of violating any state constitutional right which is separate and distinct from federal protections. Therefore, because there is no federal constitutional violation and no conduct specified which constitutes a state constitutional violation, there is no conduct upon which to base a claim for liability under 52.1. Thus, the district court properly granted summary judgment in favor of Jackson as to Jeanette Reynolds’s Section 52.1 claim.

D. State Tort Law Claims

Appellants also appeal the district court’s grant of summary judgment in favor of Jackson on plaintiffs’ state tort law claims.

In United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court noted the existence of pendent jurisdiction over related state law claims, but stressed that the power to assert pendent jurisdiction need not be exercised. Id. at 725-26, 86 S.Ct. at 1138-39. The Court explained, “[e]ertainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” Id. In Hodge v. Mountain States Tel. & Tel. Co., 555 F.2d 254, 261 (9th Cir.1977), a district court had granted summary judgment on a plaintiffs federal and state claims. Relying on different reasons than the district court, we affirmed the summary judgment in favor of the defendant as to the federal claims. However, following Gibbs, we explained, “[i]n light of our disposition of the federal claims, we feel that it is appropriate to remand the state law claims to the district court with instructions to dismiss for want of federal jurisdiction.” Id.

More recently, the Circuit vacated a district court’s judgment dismissing both state and federal claims. We determined that the district court did not err in dismissing the pendent state law claims after all of the federal claims were dismissed, but vacated “the judgment with instructions that it be modified to make clear that dismissal of the pendent claims [was] without prejudice.” Gini v. Las Vegas Metropolitan Police Dept., 40 F.3d 1041, 1046 (9th Cir.1994). The court explained that “ ‘[i]n the usual ease in which federal-law claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state law claims.’” Id. (quoting Schneider v. TRW. Inc., 938 F.2d 986, 993 (9th Cir.1991)); see also Wren v. Sletten Const. Co., 654 F.2d 529, 536 (9th Cir.1981) (‘When the state issues apparently predominate and all federal claims are dismissed before trial, the proper exercise of discretion requires dismissal of the state claim.” (emphasis added)).

Similar to Hodge, in this case the district court granted summary judgment on plaintiffs’ federal and state claims. Instead, after granting summary judgment on the civil rights claim, the court should have dismissed the state law claims without prejudice. Therefore the state tort law claims are REMANDED to the district court with instructions to dismiss without prejudice for want of federal jurisdiction.

AFFIRMED in part and REMANDED in part.

PREGERSON, Circuit Judge,

dissenting:

This case raises the question whether Deputy Jackson was entitled to qualified immunity when he used deadly force against Paul Reynolds. The answer to that question depends on whether “the totality of the circumstances ... justified the particular type of seizure” that sadly was carried out by Deputy Jackson. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.1991). Because material factual questions remain unanswered, I believe a jury should determine whether the totality of the circumstances that Deputy Jackson faced warranted his use of deadly force against Reynolds. Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th Cir.1994). Accordingly, I dissent.

I agree that we should not use the “20/20 vision of hindsight” to second guess the actions of police officers when they use deadly force to defend themselves from imminent harm. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871-72, 104 L.Ed.2d 443 (1989). But this does not mean that a finding of qualified immunity is automatic. Rather, courts must assess whether the use of deadly force to effect a seizure was reasonable according to the requirements of the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985). Part of this analysis requires us to determine whether the suspect posed “a threat of serious physical harm either to the officer or to others.” Id. at 11, 105 S.Ct. at 1701. This inquiry is usually a question of fact for the jury. Sloman, 21 F.3d at 1468; Hopkins v. Andaya, 958 F.2d 881, 885 (9th Cir.1992).

I am concerned that the facts as stated in the majority opinion leave unanswered factual questions regarding the actual threat of serious physical harm that Reynolds, who was sitting on the ground, posed to Deputy Jackson. Before he used lethal force, Deputy Jackson had his knee in Reynolds’s back and the barrel of his gun on Reynolds’s neck. Reynolds then suddenly “twisted” to the right, “swinging” a three-inch marlin spike in a backward motion towards Deputy Jackson. Jackson pulled the trigger of his gun, but the gun failed to fire. Jackson then stepped back and successfully fired his gun directly at Reynolds’s neck. In these circumstances a jury could reasonably conclude that Deputy Jackson should have dealt with the threat by using a billy club to subdue Reynolds, by stepping back further and trying to talk him into submitting, or by using other non-deadly means to take Reynolds into custody.

A jury could also find that Reynolds posed no threat to the public that would require an immediate deadly seizure of his person. There is no indication that Reynolds was trying to escape. If anything, the facts depict a disoriented individual, perhaps in need of medical attention, rather than someone attempting to kill or commit violent mischief against another person. Given these facts, a reasonable jury could have concluded that Reynolds did not actually pose a “threat of serious physical harm either to the officer or to others.” Garner, 471 U.S. at 11, 105 S.Ct. at 1701. Such a finding would preclude a grant of qualified immunity in this case. See Alexander v. City and County of San Francisco, 29 F.3d 1355, 1356 (9th Cir.1994) (Kozinski, J., concurring) (noting that in dealing with “a half-blind recluse, an eccentric, perhaps in need of medical attention,” who posed a non-dangerous nuisance to the community, the use of deadly force was a “mas-sivefly] disproportional[ ]” response to the problem).

In short, I believe a reasonable jury could conclude that Deputy Jackson’s seizure of Reynolds evinced an unwarranted use of deadly force, especially because the facts could support a finding that Reynolds posed no immediate threat of serious physical harm to the officer or other members of the community. I would reverse.

      . The district court noted that Reynolds’s weapon is referred to by the parties as both a "marlin spike” and a "knife.” A marlin spike is a spike-shaped tool used for untying nautical knots. Reynolds's weapon is somewhat similar to a marlin spike. It has a blade that folds like a pocketknife and a spiked portion that is approximately three and one-half inches long. Thus, the weapon is referred to as both a "knife” and a “marlin spike.”

      . At least as to the federal civil rights claims, if Deputy Jackson's actions were reasonable, there can be no municipal liability. “While liability of municipalities doesn’t turn on the liability of individual officers, it is contingent on a violation of constitutional rights.” Scott v. Henrich, 39 F.3d 912, 916 (9th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 2612, 132 L.Ed.2d 855 (1995).

      . The district court’s order discusses only Jeanette Reynolds’s allegations under California Civil Code Section 52.1. Denise Reynolds’s complaint also mentions 52.1 as a basis of liability. The district court’s order did not specifically address whether Denise Reynolds lacked standing to pursue a claim under 52.1. Because appellants do not address in their opening brief whether Denise Reynolds has a cause of action under 52.1, the court may consider the issue waived. Nevertheless, the issues related to 52.1 are the same for both appellants.

      . Appellants do not address the district court's finding that summary judgment was proper on their claims for assault and battery and excessive force. Nor does appellant Jeanette Reynolds dispute the district court's finding that summary judgment in favor of Deputy Jackson was appropriate for her violation of the California Public Records Act claim.

      . The district court explained that, "the [Supreme] Court in Hunter noted that 'we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.' ” Reynolds, 858 F.Supp. at 1070 (citing Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).

      . In excessive force cases, the issue of qualified immunity should be considered together with the question whether the use of deadly force was reasonable. As we explained in Hopkins:

      Police officers are entitled to assert a defense of qualified immunity from section 1983 liability if they reasonably believed in good faith that their actions were constitutional. In Fourth Amendment unreasonable force cases ... the qualified immunity inquiry is the same as the inquiry made on the merits.
      958 F.2d at 885 n. 3 (citations omitted).