The opinion
FILED
NOT FOR PUBLICATION SEP 12 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AUGUSTUS SYMONETTE, MICHELLE No. 09-17106
SYMONETTE,
D.C. No.2:07-cv-01273-PMP-LRL
Plaintiffs - Appellants,
v. MEMORANDUM*
CITY OF NORTH LAS VEGAS,
TONRY, Police Officer, STUCKEY,
Police Officer, MIDDLEBROOK,
Sergeant,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted July 21, 2011
San Francisco, California
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
Plaintiffs Augustus and Michelle Symonette appeal from the district court’s
grant of defendants’ motions for summary judgment. While Augustus Symonette
(“Symonette”) was waiting to pick up his son from work, in the vicinity of a
narcotics-related traffic stop that was still in progress, two North Las Vegas Police
officers approached Symonette, threatened to use a Taser on him, and handcuffed
him before releasing him several minutes later. Symonette’s complaint alleged
deprivation of civil rights under 42 U.S.C. § 1983, conspiracy to interfere with
civil rights under 42 U.S.C. § 1985, battery, and intentional infliction of emotional
distress against the defendant officers, as well as negligent hiring and respondeat
superior claims against the City of North Las Vegas and its police department.
Symonette’s wife, Michelle Symonette, also sued the defendants for loss of
consortium resulting from the incident. The district court granted defendants’
motion for summary judgment on all counts, ruling that defendants were entitled to
qualified immunity on the federal civil rights claims and concluding that the
evidence did not support plaintiffs’ state-based claims. We affirm.
Government actors performing discretionary functions are generally
“shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Even where
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the plaintiff’s federal rights and the scope of the official’s permissible conduct are
clearly established, the qualified immunity defense protects a government actor if it
was objectively reasonable for him to believe that his actions were lawful at the
time of the challenged act. Anderson v. Creighton, 483 U.S. 635, 641 (1987). A
defendant is entitled to immunity under this objective reasonableness standard if
“officers of reasonable competence could disagree” on the legality of the
defendant’s actions. Malley v. Briggs, 475 U.S. 335, 341 (1986).
Under the totality of the circumstances, the defendant officers had an
objectively reasonable suspicion that the driver of Symonette’s vehicle was
involved with the nearby narcotics-related traffic stop. The officers also used a
reasonable level of force to ascertain Symonette’s identity during the investigatory
stop. While Nevada’s “stop and identify” statute only requires a suspect to state
his name rather than provide documentation of his identity, see Hiibel v. Sixth Jud.
Dist. Court of Nev., Humboldt Cnty., 59 P.3d 1201, 1206 (Nev. 2002), the
Supreme Court has routinely held that “questions concerning a suspect’s identity
are a routine and accepted part of many Terry stops” so we cannot conclude that
the officers violated a clearly established constitutional right by asking Symonette
to show them a written form of identification. See Hiibel v. Sixth Jud. Dist. Court
of Nev., Humboldt Cnty., 542 U.S. 177, 186 (2004).
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We further conclude that the district court did not err in concluding that the
defendants were entitled to summary judgment on Symonette’s equal protection
claim. Even assuming that the officers failed to stop another car in the vicinity that
was being driven by a white female, that fact alone is insufficient to establish
invidious discrimination. Because Symonette’s vehicle was the only one in the
immediate area that was facing the narcotics-related traffic stop, the officers had a
reason to single out Symonette as potentially being involved in narcotics
trafficking. Because there was no violation of Symonette’s rights, under either the
Fourth or Fourteenth Amendment, the district court properly concluded that the
defendant officers were entitled to qualified immunity on the federal civil rights
causes of action.
Because the officers did not violate Symonette’s constitutional rights, the
district court also properly concluded that the defendants were entitled to summary
judgment on plaintiffs’ claims for municipal liability under 42 U.S.C. § 1983 and
conspiracy under 42 U.S.C. § 1985. Finally, we conclude that the district court did
not err in granting the defendants summary judgment on plaintiffs’ state law claims
because the plaintiffs could not establish the necessary elements of these claims.
We have considered the appellants’ additional arguments and similarly
conclude that they are without merit.
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AFFIRMED.
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