Richard Glair v. City of Santa Monica ( 2020 )

FILED
NOT FOR PUBLICATION
SEP 10 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD J. GLAIR, No. 19-55270
Plaintiff-Appellant, D.C. No. 2:11-cv-00093-FFM
v.
MEMORANDUM*
CITY OF SANTA MONICA; et al., AND ORDER
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Frederick F. Mumm, Magistrate Judge, Presiding
Submitted September 8, 2020**
Before: GRABER, BYBEE, and N. R. SMITH, Circuit Judges.
Plaintiff Richard Glair appeals pro se the district court’s order dismissing his
Federal Rule of Civil Procedure 59 motion for a new trial or, in the alternative, to
alter or amend the judgment, against Santa Monica police officer Brent Wilkening.
*
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).
Glair alleges that Wilkening’s warrantless search of his person, which arose from a
traffic stop and citation for riding a bicycle on the sidewalk, violated his First and
Fourth Amendment rights. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
We review for abuse of discretion a ruling on a Rule 59(a) motion for a new
trial. Flores v. City of Westminster, 873 F.3d 739, 755–56 (9th Cir. 2017). A
district court’s decision on a Rule 59(e) motion to alter or amend a judgment also
is reviewed for abuse of discretion. McQuillion v. Duncan, 342 F.3d 1012, 1014
(9th Cir. 2003).
A warrantless search for weapons is permissible under the Fourth
Amendment if, under all the circumstances known to the officer, the officer has a
reasonable suspicion that the person is armed and presently dangerous to the
officer or to others. Terry v. Ohio, 392 U.S. 1, 24, 27 (1968). “The purpose of this
limited search is . . . to allow the officer to pursue his investigation without fear of
violence . . . .” Adams v. Williams, 407 U.S. 143, 146 (1972). The scope of the
search “must be strictly ‘limited to that which is necessary for the discovery of
weapons which might be used to harm the officer or others nearby.’” Minnesota v.
Dickerson, 508 U.S. 366, 373 (1993) (quoting Terry, 392 U.S. at 26).
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The jury may consider the totality of the circumstances in considering the
propriety of a stop. Thomas v. Dillard, 818 F.3d 864, 876–77 (9th Cir. 2016). And
an officer may draw on his or her “own experience and specialized training to
make inferences from and deductions about the cumulative information available.”
United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing United States v. Cortez,
449 U.S. 411, 418 (1981)). The jury was so instructed, in accordance with Ninth
Circuit law.
The district court properly denied Glair’s Rule 59 motion. The court did not
abuse its discretion in ruling that evidence supported the verdict on Glair’s Fourth
Amendment claim. Wilkening suspected Glair to be armed based on the totality of
circumstances, including: excessive agitation in response to being stopped; refusal
to comply with orders; erratic hand motions; continuous movement of hands in and
out of pockets; and the known criminal activity in the area. Wilkening testified at
length to these facts, explained that he had acted in accordance with his specialized
training, and documented the same circumstances contemporaneously in the
citation. The jury was entitled to find Wilkening more credible than Glair, as the
district court observed. Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (per
curiam); Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985) (per curiam).
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Nor did the court abuse its discretion in ruling that evidence supported the
verdict on Glair’s First Amendment claim. Wilkening’s aforementioned rationale
for the search, his testimony that he could not hear Glair’s words clearly, and his
credibility on the stand all point to a lawful search, as opposed to one performed in
retaliation for Glair’s protected speech.
The court did not abuse its discretion in denying a new trial based on its
appointment of counsel, or as a result of appointed counsel’s alleged mistakes. The
district court did not order Glair to accept counsel, Glair made no objection to
counsel, and the record does not reflect any conflict between the two. Even if Glair
were entitled to a certain standard of representation in a civil trial, Nicholson, 767
F.2d at 1427, he fails to persuasively argue that any of counsel’s purported
mistakes prejudiced him in any meaningful way.
We afford broad discretion to a district court’s evidentiary rulings. Harper v.
City of Los Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008). Here, the court properly
admitted evidence of Wilkening’s training at trial, as it went to the manner in
which his specialized training informed his decision to conduct the pat down, and
cannot be said to have tainted the verdict.
Finally, Glair offers up cases with statistics regarding the population in
Santa Monica and pat-down searches in other jurisdictions. Those numbers are
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irrelevant to the legality of the search in question. We deny his requests for judicial
notice of the crime statistics report and Police Standards Training Guide.
AFFIRMED.
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