Lasonja Porter v. Jeff Vignau ( 2019 )

NOT FOR PUBLICATION FILED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.
4 18-15332