NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DERRIS HURTH, an individual, No. 11-55562
Plaintiff-Appellant, D.C. No. 2:09-cv-05423-SVW-
PJW
v.
COUNTY OF LOS ANGELES, a local
governmental entity; LOS ANGELES
COUNTY SHERIFF’S DEPARTMENT, a
public entity, MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
For the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted December 8, 2017
Pasadena, California
Before: KELLY,** CALLAHAN, and BEA, Circuit Judges.
Plaintiff-Appellant Derris Hurth (“Hurth”) appeals from the district court’s
summary judgment decisions on his unlawful arrest and unlawful pat-down search
claims. In particular, Hurth argues that the district court erred in holding that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
defendants were entitled to qualified immunity on the unlawful arrest claim and
finding that the defendants had a reasonable articulable suspicion to justify a
search on the unlawful pat-down search claim. We review a grant of summary
judgment de novo. Mark H. v. Hamamoto, 620 F.3d 1090, 1096 (9th Cir. 2010).
We have jurisdiction under 28 U.S.C. § 1291, and affirm.1
1. Unlawful Arrest Claim
The district court correctly granted summary judgment on the basis of
qualified immunity on the unlawful arrest claim because the law was not clearly
established to the requisite standard. To demonstrate that a state official violated a
clearly established right, the “contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). When an arrest is made without
a warrant or probable cause, the officer may still be entitled to qualified immunity
if it was objectively reasonable for him to believe he had probable cause to make
the arrest. Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009). It
was objectively reasonable for Defendants County of Los Angeles and the Los
Angeles County Sheriff’s Department (“Official Defendants”) to believe they had
probable cause to arrest Hurth for loitering with the purpose of engaging in a drug-
1
As the parties are familiar with the facts and procedural history, we restate
them only as necessary to explain our decision.
2
related offense under either the Hoover Gang injunction (“gang injunction”) or
California Health & Safety Code § 11532.
Loitering is defined as “delay[ing] or linger[ing] without a lawful purpose
for being on the property and for the purpose of committing a crime as opportunity
may be discovered.” Cal. Health & Safety Code § 11530. Hurth contends that he
was not loitering because the plain meaning of the term “loiter” includes a
temporal element. However, Hurth acknowledges the unsettled nature of the
definition in his opening brief, stating “neither the statute nor the case law
interpreting it provides any guidance on what ‘delay’ or ‘lingering’ might mean.”
Blue 21. This is the antithesis of clearly established law. Consequently, a
reasonable officer easily, and reasonably, could reach the opposite conclusion on
whether Hurth was loitering, particularly given Hurth’s statement that he was “just
here” or “just hanging out,” unmodified by any indication of how long he had been
there or intended to stay there.
Second, Plaintiff failed to show that the law was clearly established such that
deputies could not have reasonably believed that Hurth intended to commit a drug-
related offense under § 11532 (or the gang injunction). Deputy Carpenter knew of
Hurth’s past narcotics convictions, knew that Hurth was in a gang, had
encountered Hurth with other gang members, and had observed loose car panels in
Hurth’s car that he believed indicated drug activity. See Devenpeck v. Alford, 543
3
U.S. 146, 152 (2004). Moreover, the district court did not rely on the disputed fact
as to whether Deputy Carpenter knew of the injunction.
Therefore, we hold that “a reasonable officer in [Deputy Carpenter’s]
position would not have clearly known that his conduct was unlawful under these
circumstances.” Ramirez, 560 F.3d at 1024. Given our disposition, it is
unnecessary to address issue preclusion.
2. The Pat-Down Search Claim
Summary judgment was proper with respect to Hurth’s unlawful pat-down
search claim because the officer, led by safety concerns, had a reasonable
articulable suspicion to perform the pat-down search for weapons. Terry v. Ohio,
392 U.S. 1, 21−22 (1968).2 “The officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was
in danger.” United States v. $109,179 in U.S. Currency, 228 F.3d 1080, 1086 (9th
Cir. 2000).
Reasonable articulable suspicion is present here. Deputy Carpenter noticed
the loose panels inside Hurth’s car, which could suggest drug activity; he knew
Hurth had a drug-related criminal background; he knew that Hurth was named in
2
Qualified immunity is also appropriate for the unlawful pat-down search
claim because, as discussed in this section, there is no constitutional violation. See
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
4
the gang injunction; he recognized that they were inside the gang territory subject
to the injunction; and he knew of the gang’s violent history. Moreover, Hurth gave
no explanation for his presence and he was wearing baggy, loose-fitting clothing.
Police may reasonably suspect that potential drug traffickers are armed. See
United States v. Davis, 530 F.3d 1069, 1082−83 (9th Cir. 2008). Facts that lead
the police to believe a person may be trafficking in narcotics, as we have here—
especially with regard to the loose panels and gang affiliation—can reasonably
justify a pat-down search. See $109,179, 228 F.3d at 1086 (“Because the police
reasonably suspected Maggio of dealing in narcotics, it was not unreasonable to
believe that he might be armed.”). Accordingly, the officer had a reasonable
articulable suspicion.
AFFIRMED.
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