NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 12 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DAVID PICRAY, No. 12-35557
Plaintiff - Appellant, D.C. No. 6:11-cv-06147-AA
v.
MEMORANDUM*
JOE HEEB,
Defendant,
And
JACK ROGERS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted November 4, 2013
Portland, Oregon
Before: ALARCÓN, M. SMITH, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiff-Appellant David Picray appeals from the district court’s order
granting Defendants-Appellees’ Motions for Summary Judgment. On appeal,
Picray challenges the district court’s conclusions that: (1) Officers Vu and Graves
did not detain Picray for an unreasonable amount of time in violation of the Fourth
Amendment; and (2) Jack Rogers did not violate Picray’s First Amendment rights
by upholding an order excluding Picray from the Oregon State University campus.
Because the parties are familiar with the facts and procedural history of this case,
we repeat only those facts necessary to resolve the issues raised on appeal. We
affirm.
The parties do not dispute that Officers Vu and Graves conducted a lawful
Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968). Rather, Picray argues that the
stop’s forty-minute duration converted his detention into an unlawful arrest.
While Terry stops must “last no longer than is necessary to effectuate the
purpose of the stop,” there are no “rigid time limitation[s]” on such stops. United
States v. Sharpe, 470 U.S. 675, 684–85 (1985) (citations omitted). A suspect’s
conduct often dictates what is reasonable under Terry, and courts “refuse[ ] to
charge police with delays in investigatory detention attributable to the suspect’s
evasive actions.” United States v. Montoya de Hernandez, 473 U.S. 531, 543
(1985) (citing Sharpe, 470 U.S. at 687– 88).
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Picray recorded his forty-minute interaction with the officers. A certified
transcript of this recording clearly demonstrates that the officers detained Picray
only for the amount of time necessary to effectuate their investigation and that
Picray’s combative conduct and failure to cooperate caused the investigation to last
forty minutes.
With regard to the First Amendment claim, the district court did not err in
concluding that Picray identified no record evidence showing that a desire to chill
speech was the but-for cause of Rogers’ decision to uphold the exclusion order.
Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 900–01 (9th Cir. 2008) (quoting
Skoog v. County of Clackamas, 469 F.3d 1221, 1231–32 (9th Cir. 2006)). Absent
such evidence, Picray’s First Amendment claim fails.
For the foregoing reasons, the district court properly granted Defendants-
Appellees’ motions for summary judgment.
AFFIRMED.
3