Winterrowd v. Nelson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RALPH KERMIT WINTERROWD, 2ND, 

Plaintiff-Appellee,

v.

BRAD L. NELSON; JOHN CYR; JORGE No. 04-35855

SANTIAGO,

Defendants-Appellants,  D.C. No.

CV-02-00097-JKS

v.

OPINION

LEVITICUS WASHINGTON; MICHAEL

E. BURKMIRE; DEL SMITH; DENNIS

CASANOVAS,

Defendants.



Appeal from the United States District Court

for the District of Alaska

James K. Singleton, Chief District Judge, Presiding

Argued and Submitted

July 25, 2006—Anchorage, Alaska

Filed March 30, 2007

Before: Alex Kozinski, Marsha S. Berzon and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Kozinski

3695

3698 WINTERROWD v. NELSON

COUNSEL

Gregg D. Penkes, Attorney General, Stephanie Galbraith

Moore, Assistant Attorney General, Anchorage, Alaska, for

the defendants-appellants.

Ralph Kermit Winterrowd 2nd, pro se, Knik, Alaska, for the

plaintiff-appellee.

WINTERROWD v. NELSON 3699

OPINION

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 driv-

er’s license and registration. Winterrowd was unable to pro-

duce 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

1

From what we can tell from the record, Winterrowd takes the curious

(and legally unjustified) position that the State of Alaska lacks the author-

ity to require him to register his vehicle.

2

Nelson admits that he could have administered the pat-down in a way

that did not require Winterrowd to put his hands behind his back. A pat-

down can be conducted in a number of ways. The individual could hold

his arms over his head, out to the sides or he could lean forward onto the

police car.

3700 WINTERROWD v. NELSON

him onto the hood of the car. Nelson then grabbed Winter-

rowd’s right arm and forced it up. When Winterrowd

screamed in pain, the trooper applied greater pressure, pump-

ing his arm up and down. After several seconds of this treat-

ment, Nelson released Winterrowd, who fell to the ground.3

Winterrowd brought this action in federal court. The dis-

trict court dismissed most of his claims on summary judg-

ment, 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 defen-

3

Because this case arises on the troopers’ motion for summary judgment

on a qualified immunity claim, we present the facts in the light most favor-

able to Winterrowd. See Adams v. Speers, 473 F.3d 989, 990-91 (9th Cir.

2007). The officers claim Winterrowd turned towards Nelson during the

pat-down, but Winterrowd claims he made no aggressive moves, and that

if he turned, it was an involuntary response to Nelson’s forcing his arm

behind his back. A jury will have to resolve the conflicting versions as to

what transpired after the stop.

Defendants also claim Winterrowd presented no evidence, instead mak-

ing only general assertions in legal memoranda. See British Airways Bd.

v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978). But Winterrowd—who

represents himself—appended affidavits to briefs he submitted to the dis-

trict court after his amended complaint. Those affidavits stated, “I . . . do

swear (or affirm) that the foregoing facts in this document . . . are true and

correct under the penalties of [sic] perjury.” While this procedure is some-

what unorthodox, it substantially complies with Fed. R. Civ. P. 56(e),

because it exposes Winterrowd to prosecution for perjury for any deliber-

ately false factual statements in his briefs. While we might not counte-

nance such a shortcut where a party is represented by counsel, we give pro

se litigants greater latitude as to the format of their presentation. Michen-

felder v. Sumner, 860 F.2d 328, 338 (9th Cir. 1988).

4

We have held that officers are justified in patting down an individual

when they plan to have him sit in a patrol car. See United States v. Thomp-

son, 597 F.2d 187, 190 (9th Cir. 1979). The circumstances in Thompson,

however, differ from those here. In Thompson, “a standard police identifi-

cation process” took place while the suspect was in the patrol vehicle. Id.

Sitting in close proximity with a suspect presents officer safety concerns.

And, as Thompson suggests, those concerns are heightened when an indi-

vidual refuses to present identification. After all, the suspect could be con-

cealing his identity for nefarious purposes.

WINTERROWD v. NELSON 3701

dants 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 tendinitis.

Unlike the situation in Thompson, the officers here were not dealing

with an unknown individual. See p. 3704 infra. Instead, at least one of

those officers, Cyr, indicated that he was familiar with Winterrowd when

they pulled him over; there is no evidence that Winterrowd failed to pro-

duce his driver’s license. Whether the pat-down in this case was legal

under Thompson is thus an open question. Because the legality of the pat-

down is not at issue on this appeal, we assume—without deciding—that

the pat-down was lawful.

5

Winterrowd cross-appeals from the district court’s grant of summary

judgment to defendants on his other claims. We have jurisdiction to hear

the government’s appeal of his denial of qualified immunity because such

denial is an appealable final decision. Wong v. United States, 373 F.3d

952, 960 (9th Cir. 2004). We may exercise jurisdiction over Winterrowd’s

other claims only if “the ruling is ‘inextricably intertwined’ with a claim

properly before us on interlocutory appeal.” Id. (quoting Cunningham v.

Gates, 229 F.3d 1271, 1284-85 (9th Cir. 2000)).

Winterrowd’s other claims against the defendants—that they unconsti-

tutionally seized his property, failed to comply with various federal and

state regulations and issued citations that were incompatible with federal

law—and his claim that his constitutional rights were violated during the

course of the district court proceedings, are all unrelated to the question

of whether the troopers used excessive force against him. We need not

decide the merits of those claims in order to dispose of the qualified

immunity claim, and we therefore lack jurisdiction to decide those issues

in this appeal. Id.

Winterrowd also raises new claims and provides new evidence on

appeal. We grant the defendants’ motion to strike, to the extent that the

material presented was not before the district court.

3702 WINTERROWD v. NELSON

[1] Naturally, a police officer need not endanger himself by

unduly crediting a suspect’s mere claim of injury. We recog-

nize 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 intru-

sion on the individual’s liberty is outweighed by the govern-

mental 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.

[2] Accepting Winterrowd’s version of the facts, the troop-

ers could not have so concluded on the basis of the immediate

offense. Winterrowd wasn’t even suspected of driving danger-

ously. Instead, the officers believed his license plates were

invalid. No reasonable officer could conclude that an individ-

ual suspected of a license plate violation posed a threat that

would justify slamming him against the hood of a car.

[3] 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 Winter-

rowd, he didn’t resist the officers, nor did he flee.

The officers point to only three contemporaneous observa-

tions 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

WINTERROWD v. NELSON 3703

all motorists simply because they carry writing utensils, keys

or other ordinary objects that could potentially be used as

weapons.

[4] 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 Win-

terrowd had more than the usual number of such utensils is of

no consequence. Having a large number of pencils may sug-

gest 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.

[5] 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.

[6] 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 Winter-

rowd’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 ada-

mant that registration was not required, that attitude would not

justify the deliberate infliction of pain. Winterrowd’s objec-

tions were entirely verbal. At worst, the officers could con-

clude that he scoffed at state bureaucracy. Such an attitude

6

Nothing in the record suggests that Winterrowd’s possession of the gun

was illegal.

3704 WINTERROWD v. NELSON

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.”

[7] Such generalized concerns, standing alone, cannot jus-

tify 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 Win-

terrowd had been physically abusive during the prior encoun-

ters. At most, Winterrowd was shown to be verbally abusive;

after being forced onto the hood of the car, he called the offi-

cers “jackbooted thugs,” “armed mercenaries” and

“[c]owards.” Assuming that Winterrowd had used such epi-

thets 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 awe-

some power at their disposal to punish individuals for conduct

that is not merely lawful, but protected by the First Amend-

ment.” Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th

Cir. 1990).7

7

Indeed, this fact may cut the other way. Having recognized Winter-

rowd, the officers may have remembered that he didn’t pay them the def-

erence they believed was their due. Their behavior, then, may have been

a response to his exercise of First Amendment rights, rather than to the

WINTERROWD v. NELSON 3705

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 hav-

ing expired vehicle registrations, for failing to carry his driv-

er’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.

[8] 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 manhan-

dling that Winterrowd claims the officers inflicted on him.

[9] We now turn to whether a reasonable officer would

have known that the use of force here was excessive. See Sau-

cier v. Katz, 533 U.S. 194, 202 (2001). Officers are entitled

to qualified immunity unless they have been given fair notice

that their conduct was unreasonable “in light of the specific

present situation. While we must consider the facts here “without regard

to the arresting officer’s subjective motivation for using force,” Tatum v.

City & County of S.F., 441 F.3d 1090, 1095 (9th Cir. 2006), the officers’

underlying motivations could cast doubt on their version of the incident.

This is a matter to be sorted out by the trier of fact.

3706 WINTERROWD v. NELSON

context of the case.” Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (per curiam) (quoting Saucier, 533 U.S. at 201). In

Meredith v. Erath, 342 F.3d 1057 (9th Cir. 2003), we found

the suspect “did not pose a safety risk and made no attempt

to leave.” Id. at 1061. Likewise, the crimes being investigated

were “nonviolent offenses.” She may have “loudly asked . . .

to see a search warrant” and “passively resisted” handcuffing,

but did not use physical force. We found it clearly established

that “grab[bing] [her] by the arms, throw[ing] her to the

ground, and twist[ing] her arms while handcuffing her” was

unreasonable. Id. Because we held in Meredith that the law on

this point was clearly established as of July 10, 1998, it was

also clearly established for the later incident here. No reason-

able officer would believe he could constitutionally force a

harmless motorist against the hood of a car and cause him

unnecessary pain. See id. That the suspect claims he is unable

to comply with instructions to put his arm behind his back

provides no further justification. No reasonable officer could

have thought otherwise.

* * *

[10] An officer may not use force solely because a suspect

tells him he is incapable of complying with a request during

the course of an ordinary pat-down. The officers here admit

that they could have patted Winterrowd down without forcing

his arm behind his back. They have shown no justification for

pushing him onto the hood of the police car and yanking his

arm. While the officers tell a different story, we must accept

Winterrowd’s version of the event. Because the facts, if

resolved in Winterrowd’s favor, would show the officers vio-

lated his clearly established constitutional rights, the district

court did not err in denying the motion for summary judgment

on grounds of qualified immunity.

AFFIRMED.