The opinion
FILED
NOT FOR PUBLICATION APR 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUADALUPE MARTINEZ- No. 09-35386
RODRIGUEZ,
D.C. No. 2:08-cv-00265-JLR
Plaintiff - Appellee,
v. MEMORANDUM *
UNITED STATES OF AMERICA,
Defendant,
and
KEVIN WETTELAND, in his official and
individual capacities,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted April 9, 2010**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.
Kevin Wetteland, a DEA agent, appeals denials of his renewed summary
judgment motion for qualified immunity and motion for reconsideration. Because
Guadalupe Martinez-Rodriguez did not resist arrest, flee, or understand English,
the district court determined that Wetteland used excessive force in violation of the
Fourth Amendment in breaking three of Martinez-Rodriguez’s fingers while
arresting him. We have jurisdiction of this appealable interlocutory order under 28
U.S.C. § 1291 and Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985).
In our de novo review of the denial of summary judgment for qualified
immunity, we review genuine issues of material fact from the evidence and all
justifiable inferences in favor of the plaintiff. Crowe v. County of San Diego, 593
F.3d 841, 862 (9th Cir. 2010). An officer is entitled to qualified immunity if, (1) in
the light most favorable to the injured party, the alleged facts “show the officer’s
conduct violated a constitutional right,” and (2) the right violated was clearly
established, making it “clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.” Davis v. City of Las Vegas, 478 F.3d 1048, 1053
(9th Cir. 2007) (quoting Saucier v. Katz, 533 U.S. 194, 201, 202 (2001), overruled
on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009)) (internal
quotation marks omitted).
2
In analyzing a Fourth Amendment claim of excessive force in making an
arrest, we use the objective-reasonableness test of Graham v. Connor, 490 U.S.
386, 396-97 (1989). The factors evaluated in assessing the government interests
are “the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Id. at 396. Martinez-Rodriguez was
arrested following a controlled sale of a pound of methamphetamine to a
Cooperating Source. He posed no danger to the officers or others, and he did not
resist or attempt to flee. The district court correctly determined that whether
Wetteland used excessive force in violation of the Fourth Amendment in arresting
Martinez-Rodriguez and breaking his fingers was a triable question of fact. To the
extent that Wetteland’s relation of the facts differs from that of Martinez-
Rodriguez, the court appropriately accepted the version of the nonmoving party.
To determine if the Fourth Amendment, excessive-force arrest law was
clearly established at the time of Martinez-Rodriguez’s arrest, we determine
whether the law at that time gave “fair warning” that the force used by Wetteland
in arresting Martinez-Rodriguez was excessive. Hope v. Pelzer, 536 U.S. 730, 741
(2002). Because the roughness Wetteland used in arresting Martinez-Rodriguez
was more egregious than the excessive-force arrest cases in this circuit at the time
3
it occurred, Wetteland had notice that his conduct violated clearly established law.
See, e.g., Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993) (denying
qualified immunity and holding that “abusive application of handcuffs,” causing
pain and bruising was unconstitutional and recognizing that “the use of excessive
force by officers in effecting an arrest was clearly proscribed by the Fourth
Amendment at least as early as 1985”); Hansen v. Black, 885 F.2d 642, 645 (9th
Cir. 1989) (reversing grant of summary judgment to officers who injured arrestee’s
wrist and arm as they handcuffed her).
AFFIRMED.
4