                                                                               FILED
                            NOT FOR PUBLICATION                                APR 24 2015

                                                                            MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JERRY HARTRIM,                                   No. 13-15396

              Plaintiff - Appellee,              D.C. No. 2:11-cv-00003-MMD-
                                                 PAL
  v.

LAS VEGAS METROPOLITAN POLICE                    MEMORANDUM*
DEPARTMENT; et al.,

              Defendants - Appellants.


                    Appeal from the United States District Court
                             for the District of Nevada
                      Miranda Du, District Judge, Presiding

                       Argued and Submitted April 17, 2015
                            San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and GLEASON,** District
Judge.

       Las Vegas Metropolitan Police Department officers, Ferrante and Delaria

(collectively, “Officers”), appeal from the district court’s order denying their


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
motion for summary judgment on the basis of qualified immunity in a 42 U.S.C. §

1983 action brought by Jerry Hartrim. We have jurisdiction under 28 U.S.C. §

1291 and affirm.

      Summary judgment based on a claim of qualified immunity should not be

granted if (1) “the facts, when taken in the light most favorable to Plaintiff[], show

that Defendants’ conduct violated a constitutional right,” and (2) “the

constitutional right at issue is ‘clearly established.’” Torres v. City of Los Angeles,

548 F.3d 1197, 1210 (9th Cir. 2008).

      1. “Under ordinary circumstances, when the police have only reasonable

suspicion to make an investigatory stop, drawing weapons and using handcuffs and

other restraints will violate the Fourth Amendment.” Washington v. Lambert, 98

F.3d 1181, 1187 (9th Cir. 1996). Nevertheless, “we allow intrusive and aggressive

police conduct without deeming it an arrest . . . when it is a reasonable response to

legitimate safety concerns on the part of the investigating officers.” Id. at 1186

(emphasis in original). We have identified some situations where handcuffs may

be used lawfully as part of an investigation:

      (1) where the suspect is uncooperative or takes action at the scene that
      raises a reasonable possibility of danger or flight; (2) where the police
      have information that the suspect is currently armed; (3) where the stop
      closely follows a violent crime; and (4) where the police have
      information that a crime that may involve violence is about to occur.


                                           2
Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1176 (9th Cir. 2013)

(internal quotation marks omitted). Reviewing the facts as alleged by Hartrim, the

Officers’ handcuffing and subsequent detention of Hartrim was not reasonable. As

represented by Hartrim and his wife, Hartrim complied with each of the Officers’

requests and did not prevent the Officers from entering his room to investigate

Mrs. Wolke’s disappearance. Hartrim was not yelling, nor did he threaten or make

any physical contact with the Officers. Although Hartrim admittedly raised his

voice when directing one question to the Officers, was agitated, and may have had

his hands clenched at his side, these facts are insufficient to justify the Officers’

conduct. Thus, Hartrim’s allegations support his claim that the Officers violated

his Fourth Amendment rights.

      2. The constitutional rights at issue here were clearly established at the time

of the incident. “The dispositive inquiry is ‘whether it would be clear to a

reasonable [official] that his conduct was unlawful in the situation he confronted.’”

CarePartners, LLC v. Lashway, 545 F.3d 867, 883 (9th Cir. 2008) (quoting

Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson

v. Callahan, 555 U.S. 223 (2009)). In regard to Terry stops:

      the law [is] clearly established that, when making a Terry stop,
      officers may not use highly intrusive measures such as [drawing
      weapons and handcuffing], unless the circumstances reasonably


                                           3
      justify such extraordinary procedures in order to ensure the officers’
      safety. The law [is] also clearly established that if the Terry-stop
      suspects are cooperative and the officers do not have specific
      information that they are armed or specific information linking them
      to a recent or inchoate dangerous crime, the use of such aggressive
      and highly intrusive tactics is not warranted, at least when, as here,
      there are no other extraordinary circumstances involved.

Lambert, 98 F.3d at 1192 (internal citations omitted). Applying this precedent to

the facts alleged by Hartrim, it would have been clear to a reasonable police officer

that he was not authorized to handcuff or detain Hartrim. Thus, the district court

did not err in denying the Officers’ motion for summary judgment on grounds of

qualified immunity.

      AFFIRMED.




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