                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 21 2010

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



                            FOR THE NINTH CIRCUIT


THOMAS EDWARD DESKINS,                           No. 09-35519

              Plaintiff - Appellant,             D.C. No. 3:08-cv-05127-RBL

  v.
                                                 MEMORANDUM*
CITY OF BREMERTON,

              Defendant,

  and

KRISTA HEDSTROM, a Washington
State Trooper, as an individual,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                       Argued and Submitted July 14, 2010
                               Seattle, Washington




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: RYMER and N.R. SMITH, Circuit Judges, and HART, Senior District
Judge.**

      Thomas Deskins appeals the summary judgment on his claims under 42

U.S.C. § 1983 against Krista Hedstrom. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.



                                            I

      Hedstrom’s decision to stop Deskins was reasonable. She observed him

driving continuously in the left lane on a two-lane divided highway in violation of

RCW 46.61.100, which Washington categorizes as a “traffic infraction,” see RCW

46.63.020. See also Whren v. United States, 517 U.S. 808, 810 (1996) (“As a

general matter, the decision to stop an automobile is reasonable where the police

have probable cause to believe that a traffic violation has occurred.”).



                                      II

      We also agree with the district court that Hedstrom is entitled to qualified

immunity with respect to Deskins’s arrest. No clearly established law would have

alerted a reasonable officer that she lacked probable cause to arrest Deskins for


        **
             The Honorable William T. Hart, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.

                                           -2-
obstruction under RCW 9A.76.020 when he ignored several commands and was

slow in responding to others.



                                         III

      Nor did Hedstrom use excessive force. She could reasonably fear for her

safety as she was alone with Deskins on a dark highway with little traffic; he failed

to remain in his vehicle, despite Hedstrom’s instructions; his behavior from the

initial encounter on was unusual; he was much larger than Hedstrom; and she did

not know whether Deskins was armed or not. See Graham v. Connor, 490 U.S.

386, 396 (1989); see also Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). She

also had no way of knowing whether Deskins had a hearing problem. But even if

Hedstrom’s conduct were unconstitutional, the law was not clearly established that

drawing a weapon in the circumstances amounted to excessive force. Compare

Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002). Hedstrom is thus

entitled to qualified immunity.

      AFFIRMED.




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