                                                                               FILED
                                                                                MAR 11 2011

                              NOT FOR PUBLICATION*                          MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                       UNITED STATES COURT OF APPEALS

                               FOR THE NINTH CIRCUIT

                                                     No. 07-15241
    DAVID M. TUTTELMAN,
                                                     D.C. No. CV-02-02656-(WHA)
               Plaintiff-Appellant,
     v.
                                                     MEMORANDUM*
    CITY OF SAN JOSE, SAN JOSE POLICE
    OFFICER ANTHONY LUISI, SAN JOSE
    POLICE OFFICER RONALD BAYS,

               Defendant-Appellees.


                       Appeal from the United States District Court
                         for the Northern District of California
                       William H. Alsup, District Judge, Presiding

                        Argued and Submitted November 2, 2010
                               San Francisco, California

Before: GOULD and CALLAHAN, Circuit Judges, and KORMAN,** District Judge.

          This is an appeal from a judgment of the United States District Court for the



*
  This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
  The Honorable Edward R. Korman, Senior United States District Judge for the
Eastern District of New York, sitting by designation.
                                            1
Northern District of California, entered in favor of San Jose Police Officers Anthony

Luisi and Ronald Bays and the City of San Jose, after a jury returned a verdict in favor

of the defendants on plaintiff’s claims for excessive force, unlawful arrest, and

interference with plaintiff’s right of free speech. These claims, which invoked 42

U.S.C. § 1983 and Cal. Civil Code § 52.1, arose out of a routine traffic stop, late at

night on July 28, 1998.

      David Tuttelman, who was driving his pickup truck in San Jose, California, was

pulled over by two San Jose police officers, Luisi and Bays, because the license plate

on Tuttelman’s truck was obstructed and unlit. Once Tuttelman was pulled over, he

exited his truck and walked back towards the patrol car. One word led to another and

ultimately to an attempted pat-down search by Luisi, followed by a scuffle, which led

to Tuttelman’s arrest for resisting, delaying, or obstructing a police officer, in

violation of Cal. Penal Code § 148. He was later formally charged with that offense

and with battery on a police officer, in violation of Cal. Penal Code § 243.

      Tuttelman moved successfully to suppress the Officers’ testimony concerning

both charges on the ground that the attempted pat-down search, which set the

subsequent events in motion, was not justified by a reasonable suspicion that

Tuttelman was armed and dangerous.             A subsequent appeal to the Appellate

Department of the Santa Clara County Superior Court resulted in a holding that: (1)


                                           2
the attempted pat-down search was unlawful; (2) Tuttelman could not be prosecuted

for either resisting arrest or battery on an officer because Luisi was not lawfully

performing his duties—a prerequisite for both charges; (3) Tuttelman could be

prosecuted for the charge of simple battery, which did not depend on proof that Luisi

was lawfully performing his duties; and (4) the testimony of the Officers was not

subject to suppression in connection with that charge.

      After further proceedings on remand, Tuttelman pleaded guilty to having an

obstructed license plate on the night of the incident. Thereafter, he filed the civil

rights lawsuit at issue in this case, alleging various causes of action. This appeal

followed the entry of a final judgment in favor of the defendants.

      In Jones v. Barnes, 463 U.S. 745 (1983), the Supreme Court observed that

“[e]xperienced advocates since time beyond memory have emphasized the importance

of winnowing out weaker arguments on appeal and focusing on one central issue if

possible, or at most on a few issues.” Id. at 751–52. The brief filed by Tuttelman in

this appeal takes the opposite course. Instead of winnowing out weaker arguments on

appeal, Tuttelman challenges virtually every pre-trial, trial, and post-trial ruling made

by the district judge.

                                               I.

      Tuttelman’s appeal principally challenges the district court’s grant of the


                                           3
Officers motion for summary judgment on the cause of action arising out of the

attempted pat-down search. We reject this challenge.

      First, as a threshold matter, we reject Tuttelman’s contention that the Officers

are collaterally estopped from arguing that the attempted pat-down was supported by

reasonable suspicion. Under California law, “the party against whom preclusion is

sought must be in privity with the party to the former proceeding.” People v. Garcia,

141 P.3d 197, 201 (Cal. 2006). Indeed, Lynch v. Glass, 119 Cal. Rptr. 139 (Cal. Ct.

App. 1975), one of the leading cases, held that “[d]ue process requires that the

nonparty have had an identity or community of interest with, and adequate

representation by, the losing party in the first action.” Id. at 142; see also Clemmer

v. Hartford Ins. Co., 587 P.2d 1098, 1102 (Cal. 1978) (“[C]ollateral estoppel may be

applied only if due process requirements are satisfied.”). The Supreme Court has

similarly so held. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979)

(“It is a violation of due process for a judgment to be binding on a litigant who was

not a party or a privy and therefore has never had an opportunity to be heard.”).

      In Davis v. Eide, 439 F.2d 1077 (9th Cir. 1971), we held that two Los Angeles

police officers, who were defendants in a subsequent federal civil action, were not in

privity with the prosecution in a prior state criminal action; because “[t]he defendants

were city police officers not directly employed by the state [of California],” who “had


                                           4
no measure of control whatsoever over the criminal proceeding and no direct

individual personal interest in its outcome[,] . . . there was no privity sufficient to

invoke the doctrine of collateral estoppel.” Id. at 1078. These factors are consistent

with the factors that California courts have since recognized as the essence of privity

under California law. See, e.g., Clemmer, 587 P.2d at 1102; Lynch, 119 Cal. Rptr. at

141–42.

      Neither of the Officers had an identity or community of interest with, or were

represented by, the Santa Clara County District Attorney’s Office, which “represents

the State of California in the name of the ‘People’ at criminal prosecutions.” People

v. Sims, 651 P.2d 321, 333 (Cal. 1982) (citing Cal. Penal Code § 684). None of the

Officers’ personal interests were at stake in the suppression hearing. Obviously,

neither of the Officers had a proprietary or financial interest in or was in control of the

criminal prosecution of Tuttelman. Not only did the Officers and the City not join in

that action, they would not have been able to do so. Indeed, Bays was not even called

to testify at the suppression hearing. Under these circumstances, the Officers were not

in privity with the Santa Clara County District Attorney.

      The only case Tuttelman cites for the proposition that both the Officers and the

City of San Jose are in privity with the prosecution in the prior state court case is

Miller v. Superior Court, 214 Cal. Rptr. 125 (Cal. Ct. App. 1985). Miller was a civil


                                            5
lawsuit for damages against a Los Angeles Police Department officer who had

previously been convicted of having raped the plaintiff-victim. Id. at 126. Because

the officer was a party to that proceeding, he was precluded from relitigating the jury’s

verdict finding him guilty. Although the City of Los Angeles was not a party to the

criminal proceeding, the Miller Court held that it was collaterally estopped from

litigating the issue whether the officer had raped the plaintiff-victim. Id. at 130–31.

      In so holding, however, Miller conflated the doctrines of judicial and collateral

estoppel. The latter doctrine is based on privity “between the party to be estopped and

the unsuccessful party in the prior litigation . . . .” Sims, 651 P.2d at 333 (quoting

Clemmer, 587 P.2d at 1102) (emphasis added). Miller found that the “City [of Los

Angeles] was in privity with the People of the State of California,” 214 Cal. Rptr. at

129, represented by the district attorney, who was the successful party in the criminal

prosecution.

      We are not aware of any authority supporting the proposition that, even

assuming the existence of privity, the doctrine of collateral estoppel bars the

successful party in a prior action from relitigating the issue on which he was

successful. The estoppel that Miller applied could only be the doctrine of judicial

estoppel. As Professors Wright, Miller, and Cooper observe:

               Judicial estoppel has little to do with preclusion by
               judgment, even when it requires reliance by a court on a

                                           6
              prior inconsistent position. Courts do not relish the
              prospect that an adept litigant may succeed in proving a
              proposition in one action, and then succeed in proving the
              opposite in a second. . . . The theories of judicial estoppel
              that reduce these risks do not draw directly from the fact of
              adjudication.     Instead, they focus on the fact of
              inconsistency itself.

18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice

and Procedure § 4477 (2d ed. 2002); see also Wagner v. Prof’l Eng’rs in Cal. Gov’t,

354 F.3d 1036, 1044 (9th Cir. 2004) (“Judicial estoppel is an equitable doctrine that

is intended to protect the integrity of the judicial process by preventing a litigant from

playing fast and loose with the courts.” (internal quotation marks omitted)).

      By treating the City of Los Angeles and the People of the State of California as

one, Miller was effectively invoking the doctrine of judicial estoppel to prevent the

City from taking a position in the civil case that was inconsistent with the position that

the State of California, in the name of the People, took in the criminal case. Whether

this was a proper application of the doctrine of judicial estoppel is a matter of

California law that we need not resolve here. This case does not call for the

application of that doctrine and, even if it did, “[f]ederal law governs the application

of judicial estoppel in federal courts.” Johnson v. Oregon, 141 F.3d 1361, 1364 (9th

Cir. 1998).

      We do note, however, that the considerations of policy that Miller also invoked


                                            7
to justify its holding are not applicable here. Specifically, Miller was concerned that

permitting the relitigation of the issue of rape would expose the plaintiff-victim to

vexatious litigation, reopen the question of the officer’s guilt, and destroy the finality

of a criminal prosecution concluded against the defendant by a jury beyond a

reasonable doubt. See Miller, 214 Cal. Rptr. at 131. But none of those prospects

loomed over Tuttelman’s civil lawsuit in the district court. The only criminal

prosecution and guilty verdict in this case were against Tuttelman.

      Finally, our review of the record satisfies us that the attempted pat-down search

was justified by reasonable suspicion and did not violate the Fourth Amendment. “To

justify a patdown of the driver or a passenger during a traffic stop[,] . . . the police

must harbor reasonable suspicion that the person subjected to the frisk is armed and

dangerous.” Arizona v. Johnson, 129 S. Ct. 781, 784 (2009). The determination of

reasonable suspicion involves consideration of “the totality of the circumstances

surrounding the stop,” United States v. Burkett, 612 F.3d 1103, 1107 (9th Cir. 2010)

(internal quotation marks omitted), and “must be based on commonsense judgments

and inferences about human behavior,” Illinois v. Wardlow, 528 U.S. 119, 125 (2000).

      Considering the totality of the circumstances—instead of analyzing them

piecemeal, as the state court did—Luisi’s attempted pat-down search of Tuttelman

was reasonable. The Officers stopped Tuttelman at approximately 11:00 p.m.


                                            8
Tuttelman immediately exited his pickup truck and walked towards the rear of his

vehicle; was agitated and loud; failed to produce his drivers license; walked past Bays

and began to return to his truck; failed to comply with Bays’s instruction to stop

walking away; and had a discernible bulge in his left front pants pocket.3

      Ample precedent supports a finding of reasonable suspicion here. See, e.g.,

Wardlow, 528 U.S. at 124 (“[N]ervous, evasive behavior is a pertinent factor in

determining reasonable suspicion.”); Ramirez v. City of Buena Park, 560 F.3d 1012,

1022 (9th Cir. 2009) (stating that “an officer’s observation of a visible bulge in an

individual’s clothing” supports reasonable suspicion); United States v. Brown, 273

F.3d 747, 748 (7th Cir. 2001) (“A nighttime traffic stop, especially in an area where

crime is not a stranger, is more fraught with potential danger to an officer than would

be a stop during the light of day.”); United States v. Baker, 78 F.3d 135, 137 (4th Cir.

1996) (“Based on the inordinate risk of danger to law enforcement officers during

traffic stops, observing a bulge that could be made by a weapon in a suspect’s clothing

reasonably warrants a belief that the suspect is potentially dangerous, even if the

suspect was stopped only for a minor violation.”); United States v. Holifield, 956 F.2d

3
    Tuttelman argues that “Luisi’s suppression hearing testimony reveals an
understanding [at the time of the traffic stop] that the item [creating the bulge in
Tuttelman’s clothing] was a wallet.” Luisi’s testimony in fact states that the shape of
the bulge, which gave rise in the circumstances to his suspicion that Tuttelman might
be armed, “could be consistent with a wallet gun,” the possession of which is
specifically prohibited by Cal. Penal Code § 12020(a)(1).
                                           9
665, 667 (7th Cir. 1992) (“The officers could have had a reasonable belief that [the

suspect] presented a danger to themselves and others. Their belief was not based upon

a ‘hunch’ but upon [the suspect’s] boisterous, aggressive approach to the squad car.”).

                                               II.

      Tuttelman challenges the district court’s grant of summary judgment to the City

of San Jose. But Tuttelman does not have a claim against the City because respondeat

superior is not a theory of municipal liability under § 1983. See Monell v. Dep’t of

Soc. Serv. of N.Y., 436 U.S. 658, 691 (1978). Instead, “[t]o establish [municipal]

liability [under 42 U.S.C. § 1983], [the plaintiff] must show that (1) [he] was deprived

of a constitutional right; (2) the [municipality] had a policy; (3) the policy amounted

to a deliberate indifference to [his] constitutional right; and (4) the policy was the

moving force behind the constitutional violation.” Mabe v. San Bernardino Cnty.,

Dept. of Public Soc. Servs., 237 F.3d 1101, 1110–11 (9th Cir. 2001) (internal

quotation marks omitted).

      The district court correctly determined that Tuttelman’s Monell claim was

without merit. Tuttelman arguments to the contrary are sufficiently meritless as to

obviate the need for additional discussion. Moreover, notwithstanding the fact that

the City had previously withdrawn its summary judgment motion, the district court

did not abuse its discretion by dismissing the Monell claim before trial. The district


                                          10
court warned Tuttelman at two separate pre-trial conferences that his claim against the

City would be dismissed unless he articulated a triable Monell theory. Indeed,

Tuttelman concedes that the arguments his counsel made at the pre-trial conferences

on the Monell claim “were exactly those he could have made at a hearing on the City’s

prior summary judgment motion.” Under these circumstances, the dismissal of

Tuttelman’s Monell claim was proper. See Celotex Corp. v. Catrett, 477 U.S. 317,

326 (1986).

                                                III.

      Tuttelman argues that he “is entitled to judgment as a matter of law on his state

law section 52.1 claim for unlawful search.” This claim is not specifically asserted

under the § 52.1 count in his complaint, and Tuttelman admits that he is “rais[ing] the

issue for the first time on appeal.” The failure to specifically articulate the state law

claim for unlawful search in the district court proceedings precludes Tuttelman from

raising it on appeal. See Ohel Rachel Synagogue v. United States, 482 F.3d 1058,

1060 n.4 (9th Cir. 2007) (declining to remand with leave to amend complaint where

plaintiffs “neither relied on this proposed cause of action below nor sought leave of

the district court to amend their complaint to add it”). His argument that he should be

excused for not having specifically presented his claim to the district court, because

he mistakenly believed that it would have been subject to the defense of qualified


                                           11
immunity under California law, is premised upon a simple misreading of the case law

he cites. Indeed, the post-judgment case he relies upon for an alleged change in

California law on this issue, Venegas v. Cnty. of Los Angeles, 63 Cal. Rptr. 3d 741

(Cal. Ct. App. 2007), expressly followed earlier precedents such as Ogborn v. City of

Lancaster, 124 Cal. Rptr. 2d 238, 246 (Cal. Ct. App. 2002) (“The doctrine of qualified

governmental immunity is a federal doctrine that does not extend to state tort claims

against government employees.”). The latter case itself followed earlier cases.

                                               IV.

      Tuttelman argues that the district court should have given jury instructions that

the attempted pat-down search was unlawful, and that he had “the right to forcibly

resist an unlawful search attempt” incident to a lawful arrest. We reject these

arguments because, as we have explained, the attempted pat-down search was lawful.

                                               V.

      Tuttelman also argues that the district court erred by denying his motion for

summary judgment on his excessive force claim.4 Specifically, he argues that the

4
  As the Supreme Court recently reinforced, Ortiz v. Jordan, 131 S. Ct. 884, 891–92
(2011), we will not review a denial of summary judgment where a genuine dispute of
material fact precluded entry of judgment as a matter of law for the movant.
Nonetheless, we construe Tuttelman’s arguments related to his excessive force claim
to raise a “purely legal issue,” id., which we may review, see Banuelos v. Constr.
Laborers’ Trust Funds for S. Cal., 382 F.3d 897, 902 (9th Cir. 2004), and which we
must consider regardless in order to address his argument concerning the jury
instructions.
                                          12
district court should have assumed that any use of force by the officers was

unreasonable as a matter law because Tuttelman’s conduct had not created “exigent”

circumstances and because the officers failed to consider or avail themselves of “less

intrusive alternatives to force.” This claim is without merit.

      Here, Luisi grasped Tuttelman’s right wrist, in anticipation of the attempted pat-

down search, only after Tuttelman had refused to comply with Officer Luisi’s

instructions to put his hands above his head and, instead, kept his hands down at this

sides and clenched his fists. This sort of de minimis use of force cannot ground an

excessive force claim under the Fourth Amendment. See Graham v. Connor, 490 U.S.

386, 396 (1989) (“Not every push or shove, even if it may later seem unnecessary in

the peace of a judge’s chambers, violates the Fourth Amendment.” (internal quotation

marks and citation omitted)) ; United States v. Alverez-Tejeda, 491 F.3d 1013, 1017

(9th Cir. 2007) (“While the police may not use excessive force in conducting a search

or seizure, the force here was minimal.” (internal citation omitted)).

      The cases Tuttelman cites are easily distinguished. Tuttelman’s conduct was

not analogous to the conduct of either:         passive political protesters, “sitting

peacefully” and presenting no physical resistance to police, who nonetheless used

pepper spray against them, cf. Headwaters Forest Def. v. Cnty. of Humboldt, 276 F.3d

1125, 1127 (9th Cir. 2002); or a motorist who informed the officers that he was


                                          13
physically incapable of placing his hands behind his back but was nonetheless

slammed onto the hood of his car, cf. Winterrowd v. Nelson, 480 F.3d 1181, 1186 (9th

Cir. 2007); or a mentally ill person thirty-feet away from the defendant officer and

surrounded by other officers, including a canine team, who was nonetheless shot in

the face with a lead-filled beanbag round, cf. Deorle v. Rutherford, 272 F.3d 1272,

1285 (9th Cir. 2001); or a cooperative and calm man, presenting no indication of a

concealed weapon, at whose head a police officer pointed his gun when the man

approached, cf. Robinson v. Solano Cnty., 278 F.3d 1007, 1010 (9th Cir. 2002).5

      AFFIRMED.




5
 We have considered Tuttelman’s remaining arguments and find them likewise to be
without merit.
                                        14
