NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDDIE TATE, No. 20-35271
Plaintiff-Appellant, D.C. No. 2:18-cv-00141-RSL
v.
MEMORANDUM*
TRE SMITH; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted December 11, 2020**
Seattle, Washington
Before: McKEOWN, HUNSAKER, and BUMATAY, Circuit Judges.
Eddie Tate appeals the district court’s grant of summary judgment in favor
of the officers in his action under 42 U.S.C. § 1983 and state tort and
discrimination law. The parties are familiar with the facts, so we do not repeat
them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo the district court’s grant of summary judgment, Albino v.
Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc), and view the evidence in the
light most favorable to the non-moving party. Id.
Tate argues that Officer Hilton lacked the requisite reasonable suspicion to
warrant Tate’s detention under Terry v. Ohio, 392 U.S. 1 (1968), thereby violating
the Fourth Amendment’s protection against unlawful seizures. See Ornelas v.
United States, 517 U.S. 690, 693 (1996). This is not so: considering the totality of
the circumstances, Officer Hilton had specific, objective, and articulable facts that
supported his suspicion that the persons in the golden sedan were engaged, or had
been engaged, in criminal activity. See Navarette v. California, 572 U.S. 393, 397
(2014); Liberal v. Estrada, 632 F.3d 1064, 1077 (9th Cir. 2011). Namely, Officer
Hilton encountered Tate’s car within minutes of the second 911 dispatch call,
approximately three blocks away from the location the victim had last seen the
suspect’s car, facing the direction the suspect had last been seen driving, carrying a
number of passengers that approximated the number of suspects reported, at a time
of day when there were relatively few cars in the area, and in a car the color and
style described by the victim.1
1
Under Singleton v. Wulff, 428 U.S. 106, 120 (1976), we decline to address Tate’s
arrest and probable cause arguments because “a federal appellate court does not
consider an issue not passed upon below.”
2
Tate’s excessive force claim under the Fourth and Fourteenth Amendments
likewise fail. We acknowledge that summary judgment in excessive force cases
“should be granted sparingly.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.
2005). Viewing the evidence in the light most favorable to Tate, we assume that
the officers were pointing their guns at him and did not have them only in the low-
ready position. Nonetheless, we conclude that the amount of force the officers
used in pointing their weapons at Tate and attempting to handcuff him was
“objectively reasonable under the circumstances,” namely, during a high-risk
felony stop. See Cortesluna v. Leon, 979 F.3d 645, 652 (9th Cir. 2020). We also
note that any factual disputes are not material and no reasonable jury would return
a verdict in Tate’s favor. See S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925
(9th Cir. 2014) (“An issue of fact is material if it might affect the outcome of the
suit under the governing law.”) (internal quotations omitted).
Absent a constitutional violation, summary judgement was appropriate. We
also agree with the district court that even assuming such a violation, Officers
Hilton and Smith are entitled to qualified immunity because Tate has not identified
case law or otherwise shown that there was a “clearly established” right of which a
reasonable person would have known. Jessop v. City of Fresno, 936 F.3d 937, 940
(9th Cir. 2019).
Additionally, because Officer Hilton had the requisite reasonable suspicion
3
to conduct the Terry stop, his conduct was not outrageous, which defeats Tate’s
tort of outrage claim. The assault claim tracks the excessive force rationale and is
likewise defeated. See also McKinney v. City of Tukwila, 103 Wash. App. 391,
408–409 (2000) (finding that the touching that occurred when police stopped a car
with weapons drawn, ordered occupants to lay on the ground, handcuffed and
frisked them, was not assault because the touching was lawful). Similarly, we
conclude that no jury would return a verdict for Tate on his state negligence claim.
See S. Cal. Darts Ass’n, 762 F.3d at 925. Tate’s claim under the Washington Law
Against Discrimination, Wash. Rev. Code § 49.60.215, fails because he has not
shown any unequal treatment that was motivated by race. McKinney, 103 Wash.
App. at 411.
AFFIRMED.
4