UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN W. BAGLEY,
Plaintiff-Appellant,

v.
                                                                    No. 94-2526
ROBERT W. BOYTE, solely in his
personal capacity; ROBERT BYRD,
solely in his personal capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Joseph F. Anderson, Jr., District Judge.
(CA-94-419-0-17)

Argued: January 29, 1996

Decided: August 16, 1996

Before RUSSELL, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Ernest Eugene Yarborough, YARBOROUGH & CAR-
TER, P.C., Winnsboro, South Carolina, for Appellant. Michael Ste-
phen Pauley, LIDE, MONTGOMERY, POTTS & MEDLOCK, P.C.,
Columbia, South Carolina, for Appellees. ON BRIEF: Vinton D.
Lide, LIDE, MONTGOMERY, POTTS & MEDLOCK, P.C., Colum-
bia, South Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

John W. Bagley brought a § 1983 action against two police offi-
cers, Robert W. Boyte and Robert Byrd, alleging that they had vio-
lated his rights under the Fourth and Fourteenth Amendments by
making an unreasonable show of force during an investigatory stop
and by retaining his firearms for an unreasonable period of time. Bag-
ley appeals the district court's granting of a directed verdict in favor
of the police officers. We affirm.

I.

On December 7, 1993, Deputy Melinda Martin received a call from
the manager of the Winnfield West Apartments, an apartment com-
plex that had a history of drug trafficking. The manager expressed
concern about a man carrying a briefcase and wearing a handgun in
a shoulder holster. The manager provided Deputy Martin with a
description of the man's automobile and the car's license plate num-
ber. By the time Deputy Martin arrived at the apartment complex to
investigate, neither the man nor the vehicle were in sight. Deputy
Martin broadcast this information over the police radio and then pro-
ceeded to a previously-assigned duty.

Later that same day, Deputy Robert Boyte and two other deputies,
responded to a second call from the manager of the apartment com-
plex. The officers observed the car with the license number that the
apartment manager had provided, and they radioed a request for the
registration and status of the car. The search revealed that the automo-
bile was being operated without insurance coverage, in violation of
South Carolina law. Deputy Boyte decided to conduct an investiga-
tory stop.

Earlier that morning, Bagley met Kevin Talbert and Tito Burke,
two friends of his, at his residence at Winnfield West Apartments.

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When Bagley exited his apartment, he carried a case containing two
pistols that he had recently purchased. He placed the case in the trunk
of Talbert's car, and he departed with his friends to go to a field to
test fire the pistols. Talbert drove, Bagley sat in the passenger's seat,
and Burke sat in the back. After they finished shooting, Bagley placed
the two pistols in the glove compartment of the car, and they returned
to the apartment complex around noon. There, some friends of theirs
pulled alongside their car, and they all talked from inside their cars.
After making plans, Talbert drove out of the apartment complex.
Soon after leaving the apartment complex, the car was stopped by the
police.

Because the police had evidence that the passengers in the car had
weapons, they conducted a felony stop. Two police cars arrived at the
scene. Deputy Boyte jumped out of one patrol car and pointed a gun
at Bagley. Bagley put his hands up. Another officer ordered Talbert
out of the car and placed him in handcuffs. Then, the deputies ordered
Bagley to cross over to the passenger's side and exit the vehicle. Once
he did, Bagley was ordered to kneel on the gravel pavement, and he
was placed in handcuffs. Deputy Boyte took Bagley to his police car.
He pulled down Bagley's jacket, revealing an empty shoulder holster.
Deputy Boyte then ordered him into the back seat of his car. From
there, Bagley watched the police take Tito Burke into custody. The
whole incident occurred in broad daylight on a busy street. Many
bystanders watched the spectacle.

Eventually, the officers determined that Bagley, Talbert, and Burke
were not engaged in criminal activity. Talbert, however, was arrested
for driving an uninsured vehicle. Talbert consented to a search of the
vehicle, and the officers found the two pistols in the glove compart-
ment. Bagley explained that he owned the pistols, but he was not car-
rying any written proof of ownership. The deputies impounded the
vehicle and took possession of the guns. Deputy Boyte explained that
Bagley could claim the guns at the sheriff's office after producing
proof of ownership.

Later that day or on the following day, Bagley went to the sheriff's
office to reclaim his pistols. He talked with Captain Byrd, who
refused to release the weapons until he determined that Bagley was
not a convicted felon. Officer Byrd asked Bagley to return on Satur-

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day, December 11. In the meantime, Officer Byrd ran a search and
discovered that Bagley was not a convicted felon. When Bagley
returned to the sheriff's office on December 11, he could not enter the
building because it was closed for the weekend. Bagley was unaware
that he could have reclaimed his pistols if he had gone around back
to the operational portion of the sheriff's department. Instead, he
returned to the administrative office on Monday, December 13, pres-
ented proof of ownership, and retrieved his weapons.

On March 10, 1994, Bagley filed this § 1983 action against Deputy
Boyte and Captain Byrd, claiming that they had violated his Fourth
and Fourteenth Amendment rights. After discovery, the case came
before the district court for trial on November 1, 1994. At the conclu-
sion of Bagley's case, the defendants moved for a directed verdict.
After an extensive hearing on the motion, the district court granted the
motion and dismissed the case. Bagley now appeals.

II.

We review de novo the grant of a motion for a directed verdict.
Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th
Cir. 1985). In considering a motion for a directed verdict, the district
court must construe the evidence in the light most favorable to the
non-moving party. Garraghty v. Jordan, 830 F.2d 1295, 1302 (4th
Cir. 1987). The district court must direct a verdict if, without weigh-
ing the evidence or considering the credibility of the witnesses, it
finds that a reasonable jury could reach but one conclusion. Gairola,
753 F.2d at 1285.

A.

We first consider Bagley's claim that the police officers made an
excessive show of force during their stop of Talbert's vehicle.

A claim that law enforcement officers have used excessive force in
the course of an arrest, investigatory stop, or other seizure of a free
person is analyzed under the Fourth Amendment standard of reason-
ableness. Graham v. Connor, 490 U.S. 386, 395 (1989). As the
Supreme Court has explained:

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          The "reasonableness" of a particular use of force must be
          judged from the perspective of a reasonable officer on the
          scene, rather than with the 20/20 vision of hindsight. . . . Not
          every push or shove, even if it may later seem unnecessary
          in the peace of a judge's chambers, . . . violates the Fourth
          Amendment. The calculus of reasonableness must embody
          allowance for the fact that police officers are often forced to
          make split-second judgments--in circumstances that are
          tense, uncertain, and rapidly evolving--about the amount of
          force that is necessary in a particular situation.

Id. at 396-97 (internal quotes omitted).

The police had a right to conduct an investigatory stop of Talbert's
vehicle because they knew that Talbert was operating an uninsured
vehicle, a crime under South Carolina law. See United States v.
Cortez, 449 U.S. 411, 417 (1981) ("An investigatory stop must be jus-
tified by some objective manifestation that the person stopped is, or
is about to be, engaged in criminal activity."). We have long recog-
nized that "the right to make an arrest or investigatory stop necessar-
ily carries with it the right to use some degree of physical coercion
or threat thereof to effect it." Graham, 490 U.S. at 396. As a general
rule, officers conducting an investigatory stop are authorized to take
such steps as are reasonable necessary to protect their personal safety
and to maintain the status quo during the course of the stop. United
States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995) (citing United
States v. Hensley, 469 U.S. 221, 235 (1985)).

From the apartment manager's tips, the deputies had reason to
believe that one of the passengers of the vehicle was carrying a gun
in a shoulder holster. For their own safety, the deputies had good rea-
son to draw weapons on the vehicle, get the passengers out of the car,
and pat them down for weapons. Once assured that the passengers did
not pose a threat, the deputies could safely investigate the insurance
status of the vehicle.

The deputies also had the authority to use handcuffs and to place
Bagley in the police car. We have held that "drawing weapons, hand-
cuffing a suspect, placing a suspect in a patrol car for questioning, or
using or threatening to use force" is not necessarily inconsistent with

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the parameters of an investigatory stop. Id. at 1109-10. As the Sev-
enth Circuit has stated:

          In the recent past, the "permissible reasons for a stop and
          search and the permissible scope of the intrusion[under the
          Terry doctrine] have expanded beyond their original con-
          tours. . . ." The last decade "has witnessed a multifaceted
          expansion of Terry," including the "trend granting officers
          greater latitude in using force in order to `neutralize' poten-
          tially dangerous suspects during an investigatory detention
          . . . ." For better or for worse, the trend has led to the permit-
          ting of the use of handcuffs, the placing of suspects in police
          cruisers, the drawing of weapons and other measures of
          force more traditionally associated with arrest than with
          investigatory detention.

United States v. Tilmon, 19 F.3d 1221, 1224-25 (7th Cir. 1994).

Once Deputy Boyte removed Bagley from the car and frisked him,
he discovered that Bagley, although wearing a shoulder holster, did
not possess a weapon on him. Nonetheless, Deputy Boyte had reason
to believe that a weapon might be in Talbert's car. If Bagley had not
been restrained during the deputies' investigation, he could have had
the opportunity to lunge for a weapon inside the car. Thus, handcuff-
ing Bagley and placing him in the back of the patrol car fell within
the contours of an investigatory stop.

We recognize that it must have been extremely frightening for Bag-
ley to have a police officer draw a weapon on him, order him to the
ground, and handcuff him. It must also have been embarrassing for
these events to transpire in broad daylight in front of many spectators.
Nevertheless, we cannot conclude that Deputy Boyte acted unreason-
ably in taking these precautionary steps to protect his safety during
the investigatory stop of Talbert's vehicle. We therefore conclude that
Deputy Boyte's actions did not amount to an excessive show of
force.*
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*Even if we held that Deputy Boyte had acted unreasonably, he would
still be protected by qualified immunity. A police officer is immune from

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B.

We next turn to Bagley's claim that the officers' seizure of his fire-
arms violated his right to due process under the Fourteenth Amend-
ment.

The Due Process Clause of the Fourteenth Amendment provides
that "[no State shall] deprive a person of life, liberty, or property,
without due process of law . . . ." In the normal case, due process
requires the state to provide notice and an opportunity for a hearing
before it deprives the person of life, liberty, or property. See Parratt
v. Taylor, 451 U.S. 527, 537-38 (1981), overruled in part not relevant
here, Daniels v. Williams, 474 U.S. 327, 330-31 (1986). In certain cir-
cumstances, however, the requirements of due process may be satis-
fied by the provision of a post-deprivation remedy. Id. at 538. The
Supreme Court has recognized that "either the necessity of quick
action by the State or the impracticality of providing any meaningful
predeprivation process, when coupled with the availability of some
meaningful means by which to assess the propriety of the State's
action at some time after the initial taking, can satisfy the require-
ments of procedural due process." Id. at 539.

In the instant case, the circumstances required Deputy Boyte to
take Bagley's firearms without any predeprivation process. Deputy
Boyte found the firearms in the glove compartment of a car being
operated without insurance. Although Bagley claimed to be the owner
of the firearms, he was not carrying written documentation proving
his ownership. Furthermore, because the deputies impounded Tal-
bert's car, Bagley was forced to return to his residence by foot; it
would have been irresponsible for Deputy Boyte to permit Bagley to
walk home while carrying those weapons.
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liability unless his actions violated clearly established statutory or consti-
tutional rights of which a reasonable person would have known. Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). Bagley would not be able to
show that the officers' actions exceeded the clearly established bounds
of reasonable police conduct. Nonetheless, we need not reach the quali-
fied immunity issue because we hold that Deputy Boyte did not violate
Bagley's constitutional rights.

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The police provided Bagley with a post-deprivation remedy. Dep-
uty Boyte informed Bagley that he could reclaim his firearms by
returning to the sheriff's office and presenting proof of ownership. At
the sheriff's office, Officer Byrd required Bagley to allow the police
an opportunity to determine whether Bagley was a felon in possession
of a firearm. Once the police determined that Bagley was the owner
and that he was not a felon, they returned the firearms to Bagley.

Bagley argues that the seizing of his property violated his right to
substantive due process. A violation of substantive due process occurs
only when the conduct of the state actor "shocks the conscience."
Temkin v. Frederick County Comm'rs, 945 F.2d 716, 719 (4th Cir.
1991) (citing Rochin v. California, 342 U.S. 165, 172 (1952)), cert.
denied, 502 U.S. 1095 (1992). In other words, the protections of sub-
stantive due process extend "only to state action so arbitrary and irra-
tional, so unjustified by any circumstance or governmental interest, as
to be literally incapable of avoidance by any pre-deprivation proce-
dural protections or of adequate rectification by any post-deprivation
state remedies." Rucker v. Harford County, Md., 946 F.2d 278, 281
(4th Cir. 1991), cert. denied, 502 U.S. 1097 (1992).

The actions of Deputy Boyte and Captain Byrd in the instant case
do not shock the conscience. Deputy Boyte found the firearms in an
uninsured vehicle that did not belong to Bagley. Before giving the
firearms to Bagley, he needed to assure himself that Bagley was the
true owner of the weapons. When Bagley produced proof of owner-
ship at the sheriff's office, Officer Byrd retained Bagley's property
for a few extra days until he determined that Bagley was not a felon.
It is unfortunate that it took six days to straighten out the matter, but
the officers did not violate Bagley's substantive due process rights by
holding the guns until they determined that Bagley was the owner and
that he was not a felon.

III.

For the foregoing reasons, we affirm the district court entry of a
directed verdict in favor of the defendants.

AFFIRMED

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