Donald Dunlap v. Anchorage Police Department

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 27 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD W. DUNLAP, No. 16-35259

Plaintiff-Appellant, D.C. No. 3:10-cv-00242-SLG

v.

MEMORANDUM*

ANCHORAGE POLICE DEPARTMENT;

et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Alaska

Sharon L. Gleason, District Judge, Presiding

Argued and Submitted October 3, 2017

Seattle, Washington

Before: LIPEZ,** WARDLAW, and OWENS, Circuit Judges.

Donald W. Dunlap (Dunlap) appeals from the district court’s grant of

summary judgment in favor of Officer Shaun Henry (Henry), the Anchorage Police

Department (APD), and the Municipality of Anchorage (MOA). Henry arrested

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The Honorable Kermit Victor Lipez, United States Circuit Judge for

the First Circuit, sitting by designation.

Dunlap pursuant to an Alaska statute requiring individuals to notify police officers

of concealed weapons on their person after Henry viewed multiple weapons in

Dunlap’s vehicle of which Dunlap failed to notify Henry. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

Although the district court complied with the instructions of a different

three-judge panel of this court and addressed the applicability of Heien v. North

Carolina, 135 S. Ct. 530 (2014) on remand, we decline to address what import, if

any, Heien has on the instant appeal. Instead, we affirm the district court’s grant of

summary judgment on the basis that Henry is entitled to qualified immunity for

Dunlap’s 42 U.S.C. § 1983 claims because any constitutional right violated by

Henry was not clearly established at the time of Dunlap’s arrest. See Burrell v.

McIlroy, 464 F.3d 853, 855 (9th Cir. 2006) (in reviewing grant of summary

judgment, we “may affirm on any basis supported by the record”).

Henry is entitled to qualified immunity if (1) he did not violate a

constitutional right, or (2) the right was not clearly established at the time of his

challenged conduct. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). In the

unlawful-arrest context, this two-prong test asks: “(1) whether there was probable

cause for the arrest; and (2) whether it is reasonably arguable that there was

probable cause for arrest—that is, whether reasonable officers could disagree as to

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the legality of the arrest such that the arresting officer is entitled to qualified

immunity.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011).

Assuming for the purposes of this appeal that Henry lacked probable cause

to arrest Dunlap and therefore violated a constitutional right in doing so, the

“contours [of that right] [were not] sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Hope v. Pelzer, 536

U.S. 730, 739 (2002) (internal quotation marks omitted). Specifically, it was

unclear whether a reasonable officer could have believed he had probable cause to

arrest Dunlap under the state and local laws regarding concealed weapons. See

Picray v. Sealock, 138 F.3d 767, 771-72 (9th Cir. 1998) (holding that officers were

entitled to qualified immunity for arrest because they could reasonably have

concluded under the circumstances that Picray’s conduct violated multiple state

laws; subsequent acquittal on one charge was “not determinative of qualified

immunity”).

The legal framework governing the probable cause determination was

contradictory and confusing, and the singular case on which Dunlap relies, De

Nardo v. State, 819 P.2d 903 (Alaska Ct. App. 1991), does not resolve that

confusion. For a right to be “clearly established,” “a case directly on point” is not

required, “but existing precedent must have placed the statutory or constitutional

question beyond debate.” al-Kidd, 563 U.S. at 741. De Nardo did not place

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beyond debate the question of whether “on the person” applies to concealed

weapons located within easy reach, as De Nardo explicitly declined to define the

“outer boundaries” of “on the person” and did not address the concealed weapons

laws in a factual context similar to that of the instant appeal. 819 P.2d at 908.

Moreover, no case law or statutory definitions clarify how the combination of

Alaska Statute 11.61.220 and Anchorage Municipal Ordinance 8.25.020 operate

under the circumstances at issue here. See Blankenhorn v. City of Orange, 485

F.3d 463, 476 (9th Cir. 2007) (holding that defendants were entitled to qualified

immunity for arrest under California trespass statutes, which did not define key

terms and were not clarified by California case law).

Accordingly, Dunlap fails to carry his burden of demonstrating that the right

allegedly violated was clearly established. See Davis v. Scherer, 468 U.S. 183, 197

(1984) (“A plaintiff who seeks damages for violation of constitutional or statutory

rights may overcome the defendant official’s qualified immunity only by showing

that those rights were clearly established at the time of the conduct at issue.”). The

district court correctly held that Henry is entitled to qualified immunity.

The conclusion that Henry is entitled to qualified immunity does not resolve

Dunlap’s § 1983 claims against APD and MOA; however, Dunlap did not address

those claims on appeal. Nor did he address his state law claims against Henry.

Accordingly, those claims are waived. See Smith v. Marsh, 194 F.3d 1045, 1052

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(9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in its opening brief

are deemed waived.”).

AFFIRMED.

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