Winterrowd v. Nelson

• Decision Date: 30 March 2007
• Docket Number: No. 04-35855.,04-35855.
• Citation: 480 F.3d 1181
• Parties: Ralph Kermit WINTERROWD, 2nd, Plaintiff-Appellee, v. Brad L. NELSON; John Cyr; Jorge Santiago, Defendants-Appellants, v. Leviticus Washington; Michael E. Burkmire; Del Smith; Dennis Casanovas, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

480 F.3d 1181

Ralph Kermit WINTERROWD, 2nd, Plaintiff-Appellee, v. Brad L. NELSON; John Cyr; Jorge Santiago, Defendants-Appellants, v. Leviticus Washington; Michael E. Burkmire; Del Smith; Dennis Casanovas, Defendants.

No. 04-35855.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 25, 2006.

Filed March 30, 2007.

Gregg D. Renkes, Attorney General, Stephanie Galbraith Moore, Assistant Attorney General, Anchorage, AK, for the defendants-appellants.

Ralph Kermit Winterrowd 2nd, pro se, Knik, AK, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief District Judge, Presiding. D.C. No. CV-02-00097-JKS.

Before KOZINSKI, BERZON and TALLMAN, Circuit Judges.

KOZINSKI, Circuit Judge.

We consider a claim of qualified immunity for the use of force during an ordinary traffic stop.

Facts

Ralph Kermit Winterrowd 2d wasn't weaving across the road when the Alaska State Troopers pulled him over. He wasn't speeding. He didn't even coast through a stop sign. He was pulled over because the troopers suspected his plates were invalid.

As is typical in such circumstances, the troopers who pulled him over—Brad L. Nelson, John R. Cyr, Jorge A. Santiago, and Robert M. Baty—asked Winterrowd to produce his driver's license and registration. Winterrowd was unable to produce valid registration.¹ The troopers then ordered him out of his vehicle. Because they intended to speak with him inside a patrol car, they attempted to perform a routine pat-down for officer safety.

As Winterrowd faced the police car, Nelson ordered him to put his hands behind his back.² Nelson saw no signs of a weapon, and Winterrowd offered no physical threat to the officers. Instead, Winterrowd explained that he could not put his hands behind his back because he had a shoulder injury. According to Winterrowd, the officers responded by forcing him onto the hood of the car. Nelson then grabbed Winterrowd's right arm and forced it up. When Winterrowd screamed in pain, the trooper applied greater pressure, pumping his arm up and down. After several seconds of this treatment, Nelson released Winterrowd, who fell to the ground.³

Winterrowd brought this action in federal court. The district court dismissed most of his claims on summary judgment, but found disputed material facts supporting his 42 U.S.C. § 1983 claim that the troopers used excessive force during the pat-down.⁴ The district judge concluded that defendants weren't entitled to qualified immunity on summary judgment. The troopers now bring this interlocutory appeal.⁵

Analysis

A patrol officer may conduct scores of traffic stops every month, and perform numerous pat-downs. During the course of this work, the officer will inevitably meet individuals who cannot immediately comply with his instructions. People are slow or hard of hearing. They suffer from bad backs, joint problems or tendonitis.

Naturally, a police officer need not endanger himself by unduly crediting a suspect's mere claim of injury. We recognize that some suspects may feign injury in an attempt to hide weapons. But a statement that a suspect is physically unable to comply with a request does not, by itself, justify the use of force. Instead, the police may use force only when the intrusion on the individual's liberty is outweighed by the governmental interests at stake. See Blanford v. Sacramento County, 406 F.3d 1110, 1115 (9th Cir.2005). We must thus determine whether the officers here could reasonably have concluded that the use of force was justified.

Accepting Winterrowd's version of the facts, the troopers could not have so concluded on the basis of the immediate offense. Winterrowd wasn't even suspected of driving dangerously. Instead, the officers believed his license plates were invalid. No reasonable officer could conclude that an individual suspected of a license plate violation posed a threat that would justify slamming him against the hood of a car.

Nor could the troopers have so concluded on the basis of any other fact presented here. Winterrowd didn't take a swing at the officers, nor did the officers detect suspicious bulges or metallic glints on his person. According to Winterrowd, he didn't resist the officers, nor did he flee.

The officers point to only three contemporaneous observations that they believe justified their use of force. First, the officers argue that, because they removed twenty to twenty-five pens and pencils from Winterrowd's person, they could reasonably have concluded that he posed an immediate threat. But pens and pencils have legitimate, non-violent uses; many motorists carry them. The fact that ordinary objects in the possession of a suspect could be used as weapons cannot, standing alone, justify the use of force. There would have to be some indication that the individual in question intended to use these utensils to threaten or harm the officers. Any other rule would authorize the police to use force against virtually all motorists simply because they carry writing utensils, keys or other ordinary objects that could potentially be used as weapons.

Defendants do not claim that Winterrowd reached for a pen or pencil, or that he gave any other indication that he planned to wield those items belligerently. The fact that Winterrowd had more than the usual number of such utensils is of no consequence. Having a large number of pencils may suggest some personal eccentricity, but it does not make it more likely that one of those utensils will be used as a weapon or otherwise enhance the risk to the officers. At most, it might suggest that the officers could reasonably exercise greater caution during the encounter.

Second, the troopers imply that their use of force was justified because Winterrowd carried a firearm in his car.⁶ But they were unaware of this fact when they forced him onto the hood of their car. In any event, Winterrowd was well away from his vehicle, and unable to access the weapon at the time.

Third, the officers point to Winterrowd's belligerent attitude and his belief that he was not required to register his vehicle. But on summary judgment we must accept Winterrowd's claim that he was neither threatening nor physically abusive. Winterrowd believed he was not required to register his vehicle with the State of Alaska. Such a belief—a mistake of law—is no different from that of a motorist who failed to see a stop sign, or who didn't realize the speed limit had dropped to 45 miles per hour. Even if Winterrowd was adamant that registration was not required, that attitude would not justify the deliberate infliction of pain. Winterrowd's objections were entirely verbal. At worst, the officers could conclude that he scoffed at state bureaucracy. Such an attitude poses no physical danger and thus cannot justify the force allegedly used here.

The troopers also claim that they feared for their safety based on prior experiences with Winterrowd. The officers point to no facts that would have justified such a fear, voicing only vague suspicions: "I was aware that Mr. Winterrowd presented officer safety issues, including the exhibition of a hostile attitude toward Law Enforcement officers."

Such generalized concerns, standing alone, cannot justify the use of force. See Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir.2001) ("[A] simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern."). The officers do not cite a single instance where Winterrowd was physically abusive when stopped by the police. At least one of the officers had, in fact, dealt with Winterrowd in the past, see n. 4, supra, yet he presented no declaration that Winterrowd had been physically abusive during the prior encounters. At most, Winterrowd was shown to be verbally abusive; after being forced onto the hood of the car, he called the officers "jackbooted thugs," "armed mercenaries" and "[c]owards." Assuming that Winterrowd had used such epithets in the past, they would not justify the use of force. No officer likes being called a coward, but Winterrowd is well within his rights in making such statements. "[W]hile police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment." Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir.1990).⁷

None of the violations that gave rise to Winterrowd's prior encounters with the police suggest a reasonable fear that he could be dangerous. He had been cited multiple times for having expired vehicle registrations, for failing to carry his driver's license, for failing to display plates and for failing to insure his vehicle. Such passive offenses cannot give rise to a reasonable inference that the suspect is dangerous, no matter how many of them he may have committed.

The officers no doubt had an interest in confirming that Winterrowd was unarmed, but they had no justification for doing so in a physically abusive manner, as Winterrowd alleges. There were many ways the troopers could have checked for weapons short of pushing Winterrowd onto the hood of the police vehicle and yanking the arm he claimed was injured. Even if the officers doubted Winterrowd's claim that he had a shoulder injury, they were not entitled to use force to gain his compliance. When no immediate threat is posed and the police can use other means of patting down a suspect, they may not insist on doing so in a manner that will cause the suspect pain. We do not require officers to risk their own safety by crediting a suspect's claim that he is injured; we hold only that a verbal refusal to comply on grounds of physical impossibility does not justify the kind of manhandling that Winterrowd claims the officers inflicted on him.

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