                                                                              FILED
                           NOT FOR PUBLICATION                                APR 14 2010

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



                           FOR THE NINTH CIRCUIT


GUADALUPE MARTINEZ-                              No. 09-35386
RODRIGUEZ,
                                                 D.C. No. 2:08-cv-00265-JLR
             Plaintiff - Appellee,

  v.                                             MEMORANDUM *

UNITED STATES OF AMERICA,

             Defendant,

 and

KEVIN WETTELAND, in his official and
individual capacities,

             Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Western District of Washington
                    James L. Robart, District Judge, Presiding
                             Submitted April 9, 2010**
                               Seattle, Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.

      Kevin Wetteland, a DEA agent, appeals denials of his renewed summary

judgment motion for qualified immunity and motion for reconsideration. Because

Guadalupe Martinez-Rodriguez did not resist arrest, flee, or understand English,

the district court determined that Wetteland used excessive force in violation of the

Fourth Amendment in breaking three of Martinez-Rodriguez’s fingers while

arresting him. We have jurisdiction of this appealable interlocutory order under 28

U.S.C. § 1291 and Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985).

      In our de novo review of the denial of summary judgment for qualified

immunity, we review genuine issues of material fact from the evidence and all

justifiable inferences in favor of the plaintiff. Crowe v. County of San Diego, 593

F.3d 841, 862 (9th Cir. 2010). An officer is entitled to qualified immunity if, (1) in

the light most favorable to the injured party, the alleged facts “show the officer’s

conduct violated a constitutional right,” and (2) the right violated was clearly

established, making it “clear to a reasonable officer that his conduct was unlawful

in the situation he confronted.” Davis v. City of Las Vegas, 478 F.3d 1048, 1053

(9th Cir. 2007) (quoting Saucier v. Katz, 533 U.S. 194, 201, 202 (2001), overruled

on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009)) (internal

quotation marks omitted).


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      In analyzing a Fourth Amendment claim of excessive force in making an

arrest, we use the objective-reasonableness test of Graham v. Connor, 490 U.S.

386, 396-97 (1989). The factors evaluated in assessing the government interests

are “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.” Id. at 396. Martinez-Rodriguez was

arrested following a controlled sale of a pound of methamphetamine to a

Cooperating Source. He posed no danger to the officers or others, and he did not

resist or attempt to flee. The district court correctly determined that whether

Wetteland used excessive force in violation of the Fourth Amendment in arresting

Martinez-Rodriguez and breaking his fingers was a triable question of fact. To the

extent that Wetteland’s relation of the facts differs from that of Martinez-

Rodriguez, the court appropriately accepted the version of the nonmoving party.

      To determine if the Fourth Amendment, excessive-force arrest law was

clearly established at the time of Martinez-Rodriguez’s arrest, we determine

whether the law at that time gave “fair warning” that the force used by Wetteland

in arresting Martinez-Rodriguez was excessive. Hope v. Pelzer, 536 U.S. 730, 741

(2002). Because the roughness Wetteland used in arresting Martinez-Rodriguez

was more egregious than the excessive-force arrest cases in this circuit at the time


                                           3
it occurred, Wetteland had notice that his conduct violated clearly established law.

See, e.g., Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993) (denying

qualified immunity and holding that “abusive application of handcuffs,” causing

pain and bruising was unconstitutional and recognizing that “the use of excessive

force by officers in effecting an arrest was clearly proscribed by the Fourth

Amendment at least as early as 1985”); Hansen v. Black, 885 F.2d 642, 645 (9th

Cir. 1989) (reversing grant of summary judgment to officers who injured arrestee’s

wrist and arm as they handcuffed her).

AFFIRMED.




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