                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 13 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LASONJA PORTER,                                 No.    18-15332

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cv-02984-KJM-DB
 v.

JEFF VIGNAU and DEREK RUSSELL,                  MEMORANDUM*

                Defendant-Appellants,

and

TOM WALTZ; et al.,

                Defendants.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                           Submitted January 15, 2019**
                             San Francisco, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,*** District

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
Judge.

      Late one evening, Lasonja Porter was detained by two police officers, Jeff

Vignau and Derek Russell. Porter was beside her parked car, on her hands and

knees, using a flashlight to look for her keys. The police officers drove by the car

and decided to return to investigate. Officer Vignau ordered Porter to stand up and

walk towards him. As she did so, he saw what looked like a baggie and a white

powdery substance on the ground. Officer Vignau decided to handcuff Porter

before investigating further. The baggie turned out to be a latex glove, and the

officers confirmed that the car was registered to Porter. They then removed the

handcuffs. The entire encounter lasted less than five minutes.

      Porter’s complaint alleged, inter alia, a violation of her rights under the

Fourth Amendment. On the officers’ motion for summary judgment, the district

court held that the officers were “justified in their initial decision to detain and

investigate [Porter],” but that “a reasonable juror could conclude handcuffing [her]

was unreasonable.” The court accordingly denied summary judgment on the claim

that the use of handcuffs rendered Porter’s Terry stop unreasonable.1 See Terry v.

Ohio, 392 U.S. 1, 20 (1968). We have jurisdiction under 28 U.S.C. § 1291, and we

reverse.




      1
             The court granted summary judgment on all other claims.

                                            2                                     18-15332
      We review de novo a district court’s grant or denial of a motion for summary

judgment. Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987,

988 (9th Cir. 2016) (citing Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 908

(9th Cir. 2016)). An investigative Terry stop may, based upon its intrusiveness, the

aggressiveness of the police methods employed, the degree of restriction of liberty,

and the justification for the tactics used, be transformed into an arrest, for which

probable cause is required. Washington v. Lambert, 98 F.3d 1181, 1185-86 (9th

Cir. 1996). The use of handcuffs is one factor in determining whether a stop has

been converted into an arrest. Id. at 1188 (citing United States v. Bautista, 684 F.2d

1286, 1289 (9th Cir. 1982)). However, Porter does not now, and did not in

opposition to the officers’ motion for summary judgment, argue that her detention

amounted to an arrest without probable cause. She has therefore abandoned any

such claim. BankAmerica Pension Plan v. McMath, 206 F.3d 821, 826 (9th Cir.

2000) (citing USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276, 1284 (9th

Cir. 1994)).

      Porter also failed to argue that the mere use of handcuffs rendered her Terry

stop unreasonable. Regardless, the district court erred in holding that a reasonable

juror could conclude that handcuffing her was unreasonable. The court had already

found that the detention was justified, and that no excessive force was employed.

The court was correct in determining that handcuffing is not part of a routine Terry


                                           3                                    18-15332
stop, but that is only relevant to a determination of whether or not the act of

handcuffing transformed a Terry stop into an arrest without probable cause, not

whether the Terry stop itself was unreasonable. Washington, 98 F.3d at 1185,

1188. Again, Porter has forfeited the former argument.

      REVERSED AND REMANDED.




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