                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 02 2013

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



                            FOR THE NINTH CIRCUIT


MALCOLM L. LANDRY,                               No. 11-17588

              Plaintiff - Appellee,              D.C. No. 3:10-cv-04707-RS

  v.
                                                 MEMORANDUM*
MIKE BERRY,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                        Argued and Submitted June 25, 2013
                               Seattle, Washington

Before: McKEOWN, CALLAHAN, and IKUTA, Circuit Judges.

       Mike Berry, a California Highway Patrol officer, appeals from the district

court’s denial of summary judgment. We have jurisdiction under 28 U.S.C.

§ 1291, and we reverse.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      “[W]e are not precluded from hearing this interlocutory appeal merely

because there are issues of fact in dispute.” Wilkins v. City of Oakland, 350 F.3d

949, 951 (9th Cir. 2003). We may “determine if the denial of qualified immunity

was proper by assuming that the version of events offered by [Malcolm Landry] is

correct.” Id.

      We do not consider whether a constitutional violation occurred and decide

only that the district court erred in holding that Berry was not entitled to qualified

immunity. See Pearson v. Callahan, 555 U.S. 223, 235–36 (2009). “Even law

enforcement officials who ‘reasonably but mistakenly conclude that probable cause

is present’ are entitled to immunity.” Hunter v. Bryant, 502 U.S. 224, 227 (1991)

(quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). “[A]n officer who

makes a reasonable mistake as to what the law requires under a given set of

circumstances is entitled to the immunity defense.” Boyd v. Benton Cnty., 374

F.3d 773, 781 (9th Cir. 2004). We conclude that it would not have been “clear to a

reasonable officer that [Berry’s] conduct was unlawful in the situation he

confronted,” Saucier v. Katz, 533 U.S. 194, 202 (2001), because there is no

decisional authority in this or other circuits establishing that detaining someone

under the circumstances Berry confronted—repeated complaints about Landry’s

inexplicably erratic driving, the chaotic state of his car, observations of fresh


                                           2
damage to his car and a nearby guardrail, his refusal to abide by instructions to

remain at a hotel until he could be picked up, and his puzzling responses to Berry’s

questions—is unconstitutional. See Stoot v. City of Everett, 582 F.3d 910, 922 (9th

Cir. 2009). Berry’s conduct was not “so patently violative” of Landry’s rights that

he would have known “without guidance from the courts” that his actions were

unlawful. Boyd, 374 F.3d at 781 (quoting Deorle v. Rutherford, 272 F.3d 1272,

1286 (9th Cir. 2001)). Accordingly, Berry is entitled to summary judgment on the

basis of qualified immunity.

      REVERSED.




                                          3
