FILED
NOT FOR PUBLICATION
JUL 14 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT THOMAS, No. 14-35229
Plaintiff - Appellant, D.C. No. 6:12-cv-01167-AA
v.
MEMORANDUM*
OREGON STATE POLICE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted July 8, 2016**
Portland, Oregon
Before: PREGERSON, BEA, and OWENS, Circuit Judges.
Plaintiff-Appellant Robert Thomas (“Thomas”) appeals from the district
court’s order granting judgment as a matter of law in favor of Defendant-Appellees
*
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).
Scott Vaughn (“Vaughn”) and the Oregon State Police (“OSP”). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. The district court did not err in granting Vaughn judgment as a matter of
law on Thomas’s Fourth Amendment claim that Vaughn detained Thomas for an
unreasonable length of time while Vaughn conducted an investigation.
Although the duration of an investigative detention bears on its
reasonableness, “there is no strict time requirement.” United States v. Mayo, 394
F.3d 1271, 1276 (9th Cir. 2005) (citing United States v. Sharpe, 470 U.S. 675, 687
(1985)); see also Sharpe, 470 U.S. at 685 (“Much as a ‘bright line’ rule would be
desirable, in evaluating whether an investigative detention is unreasonable,
common sense and ordinary human experience must govern over rigid criteria.”).
“In assessing whether a detention is too long in duration to be justified as an
investigative stop,” the inquiry is “whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly, during
which time it was necessary to detain the defendant.” Sharpe, 470 U.S. at 686.
Here, there was no evidence in the record that would allow a reasonable jury
to find that Thomas’s detention for 40–45 minutes was an unreasonable length of
time under these circumstances. Thomas proffered no evidence to dispute that
Vaughn detained Thomas “[t]o determine whether a crime had been committed,
2
such as assault” or “disorderly conduct” based on the appearance of Thomas and
Starplex Crowd Management Systems (“Starplex”) personnel1 when Vaughn first
encountered them.2 Thomas does not dispute that as part of this investigation, OSP
troopers promptly interviewed the “three or four Starplex employees” involved with
removing Thomas from the Amphitheatre “to determine what happened inside the
Amphitheatre, and to determine if any of them were injured.” Thomas proffered no
evidence to dispute that it can take 10–15 minutes to interview someone about an
altercation where there may be injuries. Thomas proffered no evidence to dispute
that it is part of the standard protocol of the OSP to run a criminal background check
on a suspect to make sure that he is not wanted for other crimes, and Vaughn
performed such check on Thomas in the command post. Thomas proffered no
evidence that Vaughn or other OSP officers did anything to delay unnecessarily their
investigation. To the contrary, one of the Starplex personnel that was interviewed by
the OSP testified that the troopers were moving with a reasonable amount of
expeditiousness in interviewing everyone. In short, there was simply no evidence
proffered at trial for which a reasonable jury could find that Vaughn did not
1
Starplex is a private company contracted by the Oregon Parks &
Recreation Department to provide security services inside the L.B. Day
Amphitheatre.
2
Both assault and disorderly conduct are offenses for which Thomas could
have been arrested and jailed.
3
“diligently pursue[] a means of investigation that was likely to confirm or dispel
[his] suspicions quickly” so as to render Thomas’s 40–45 minute detention
constitutionally unreasonable. See Sharpe, 470 U.S. at 686; Mayo, 394 F.3d at
1275–76.
In any case, the district court did not err in concluding at the close of evidence
that Vaughn was entitled to qualified immunity. “In determining whether a
government official’s conduct violates clearly established law, the test is whether, ‘at
the time of the challenged conduct, the contours of a right are sufficiently clear that
every reasonable official would have understood that what he is doing violates that
right. We do not require a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.’” Sjurset v. Button, 810
F.3d 609, 615 (9th Cir. 2015) (emphasis added) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011)); see also al-Kidd, 563 U.S. at 743 (“Qualified immunity gives
government officials breathing room to make reasonable but mistaken judgments about
open legal questions. When properly applied, it protects all but the plainly incompetent
or those who knowingly violate the law.” (internal quotation marks omitted)). Thomas
points to no “clearly established” law that every reasonable trooper in Vaughn’s
position would know that it was unconstitutional to detain Thomas for 40–45 minutes
while he diligently conducted an investigation into possible assault and disorderly
4
conduct violations.
2. The district court did not err in granting the OSP judgment as a matter of law
on Thomas’s negligence claims.
Regarding Plaintiff’s claim that OSP failed to obey proper procedure, the only
policy in the record is permissive, not mandatory. The policy related to traffic stops,
and states that OSP officers “may” “advis[e] the citizen immediately of the reason for
the stop/contact.” Thus, OSP’s failure to inform Plaintiff immediately of the reason
for his detention did not violate any policy in the record. The district court properly
entered judgment as a matter of law based on this evidence.
Thomas also claims that because he recalls seeing an OSP officer inside the
Amphitheatre after Starplex employees picked him up off the ground after their
altercation, OSP was negligent in failing to monitor and supervise the Starplex
employees to prevent unnecessary harm to Thomas. Thomas proffered no
evidence at trial, however, that OSP had any duty whatsoever to monitor and
supervise Starplex personnel. To the contrary, the trial transcript is replete with
testimony from both OSP officers and Starplex personnel that OSP had no duty to
supervise Starplex personnel. Based on this evidence, no reasonable jury could
have found for Thomas on his negligence claims against the OSP.
5
AFFIRMED.
6