                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 12 2013

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

DAVID PICRAY,                                    No. 12-35557

              Plaintiff - Appellant,             D.C. No. 6:11-cv-06147-AA

  v.
                                                 MEMORANDUM*
JOE HEEB,

              Defendant,

  And

JACK ROGERS; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                    Argued and Submitted November 4, 2013
                               Portland, Oregon

Before: ALARCÓN, M. SMITH, and HURWITZ, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff-Appellant David Picray appeals from the district court’s order

granting Defendants-Appellees’ Motions for Summary Judgment. On appeal,

Picray challenges the district court’s conclusions that: (1) Officers Vu and Graves

did not detain Picray for an unreasonable amount of time in violation of the Fourth

Amendment; and (2) Jack Rogers did not violate Picray’s First Amendment rights

by upholding an order excluding Picray from the Oregon State University campus.

Because the parties are familiar with the facts and procedural history of this case,

we repeat only those facts necessary to resolve the issues raised on appeal. We

affirm.

      The parties do not dispute that Officers Vu and Graves conducted a lawful

Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968). Rather, Picray argues that the

stop’s forty-minute duration converted his detention into an unlawful arrest.

      While Terry stops must “last no longer than is necessary to effectuate the

purpose of the stop,” there are no “rigid time limitation[s]” on such stops. United

States v. Sharpe, 470 U.S. 675, 684–85 (1985) (citations omitted). A suspect’s

conduct often dictates what is reasonable under Terry, and courts “refuse[ ] to

charge police with delays in investigatory detention attributable to the suspect’s

evasive actions.” United States v. Montoya de Hernandez, 473 U.S. 531, 543

(1985) (citing Sharpe, 470 U.S. at 687– 88).


                                          2
      Picray recorded his forty-minute interaction with the officers. A certified

transcript of this recording clearly demonstrates that the officers detained Picray

only for the amount of time necessary to effectuate their investigation and that

Picray’s combative conduct and failure to cooperate caused the investigation to last

forty minutes.

      With regard to the First Amendment claim, the district court did not err in

concluding that Picray identified no record evidence showing that a desire to chill

speech was the but-for cause of Rogers’ decision to uphold the exclusion order.

Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 900–01 (9th Cir. 2008) (quoting

Skoog v. County of Clackamas, 469 F.3d 1221, 1231–32 (9th Cir. 2006)). Absent

such evidence, Picray’s First Amendment claim fails.

      For the foregoing reasons, the district court properly granted Defendants-

Appellees’ motions for summary judgment.

      AFFIRMED.




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