                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 9 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DANIEL FERNANDEZ,                               No.    16-55471

                Plaintiff-Appellee,             D.C. No.
                                                8:15-cv-00021-JLS-DFM
 v.

CALIFORNIA HIGHWAY PATROL, an                   MEMORANDUM *
agency of the State of California; DANIEL
HOWARD,

                Defendants-Appellants.

                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                     Argued and Submitted December 7, 2017
                              Pasadena, California

Before: KELLY,** CALLAHAN, and BEA, Circuit Judges.

      On the night of September 20, 2013, Officer Daniel Howard (“Howard”), of

the California Highway Patrol (“CHP”), stopped Daniel Fernandez (“Fernandez”)




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
for driving on southbound Interstate 5 at excessive speed—at 120 mph, almost

twice the speed limit—and for splitting lanes, impounded his motorcycle (because

Fernandez did not have the appropriate driver’s license), and released him.

Fernandez sued Howard and the CHP under the Fourteenth Amendment’s Due

Process Clause, which 42 U.S.C. § 1983 renders actionable, and California’s

negligence law. Howard and the CHP moved for summary judgment on the basis

of qualified immunity.

      The district court denied summary judgment, holding that there are genuine

issues of material fact as to whether Howard endangered Fernandez’s safety and

whether Howard was deliberately indifferent towards Fernandez. Howard appeals

from the denial of summary judgment, asserting qualified immunity. We have

jurisdiction under 28 U.S.C. § 1291, as construed by the collateral-order doctrine.

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

      An official defendant loses his qualified immunity only if: (1) the defendant

violated a plaintiff’s legal rights; and (2) those rights were clearly established when

the violation occurred so that a reasonable officer had notice that he was acting

unlawfully. Pearson v. Callahan, 555 U.S. 223, 232 (2009).

      Under Woods v. Ostrander, 879 F.2d 583 (9th Cir. 1989), an officer may not

be entitled to qualified immunity if the plaintiff was released into a “known or

obvious danger.” Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011)


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(citations and internal quotation marks omitted). However, we hold that in this

case the uncontested facts show that a reasonable officer would not have had notice

that he was releasing Fernandez into a dangerous situation. Fernandez was

released after waiting some time for the tow truck, on a surface street, around

10:00 p.m., within walking distance of open commercial establishments.

Fernandez told Howard that he lived nearby and would walk home. Moreover,

Fernandez, who told Howard that he was sober, walked a mile from where he was

released and onto a freeway before he came to harm. The undisputed facts show

that “as a reasonable officer [Howard] could have believed his actions toward

[Fernandez] were constitutional.” Woods, 879 F.2d at 591. This remains true even

if Howard’s actions violated a constitutional right belonging to Fernandez, an issue

we need not, and do not, reach. Pearson, 555 U.S. at 236—37 (discouraging

“substantial expenditure of scarce judicial resources on difficult questions that

have no effect on the outcome of the case.”).

      Accordingly, Howard is entitled to qualified immunity on the § 1983 claim.

The district court’s denial of summary judgment on this claim is REVERSED and

this matter is REMANDED to the district court for further proceedings consistent

with our disposition.




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