NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD W. DUNLAP, No. 16-35259
Plaintiff-Appellant, D.C. No. 3:10-cv-00242-SLG
v.
MEMORANDUM*
ANCHORAGE POLICE DEPARTMENT;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted October 3, 2017
Seattle, Washington
Before: LIPEZ,** WARDLAW, and OWENS, Circuit Judges.
Donald W. Dunlap (Dunlap) appeals from the district court’s grant of
summary judgment in favor of Officer Shaun Henry (Henry), the Anchorage Police
Department (APD), and the Municipality of Anchorage (MOA). Henry arrested
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kermit Victor Lipez, United States Circuit Judge for
the First Circuit, sitting by designation.
Dunlap pursuant to an Alaska statute requiring individuals to notify police officers
of concealed weapons on their person after Henry viewed multiple weapons in
Dunlap’s vehicle of which Dunlap failed to notify Henry. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
Although the district court complied with the instructions of a different
three-judge panel of this court and addressed the applicability of Heien v. North
Carolina, 135 S. Ct. 530 (2014) on remand, we decline to address what import, if
any, Heien has on the instant appeal. Instead, we affirm the district court’s grant of
summary judgment on the basis that Henry is entitled to qualified immunity for
Dunlap’s 42 U.S.C. § 1983 claims because any constitutional right violated by
Henry was not clearly established at the time of Dunlap’s arrest. See Burrell v.
McIlroy, 464 F.3d 853, 855 (9th Cir. 2006) (in reviewing grant of summary
judgment, we “may affirm on any basis supported by the record”).
Henry is entitled to qualified immunity if (1) he did not violate a
constitutional right, or (2) the right was not clearly established at the time of his
challenged conduct. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). In the
unlawful-arrest context, this two-prong test asks: “(1) whether there was probable
cause for the arrest; and (2) whether it is reasonably arguable that there was
probable cause for arrest—that is, whether reasonable officers could disagree as to
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the legality of the arrest such that the arresting officer is entitled to qualified
immunity.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011).
Assuming for the purposes of this appeal that Henry lacked probable cause
to arrest Dunlap and therefore violated a constitutional right in doing so, the
“contours [of that right] [were not] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Hope v. Pelzer, 536
U.S. 730, 739 (2002) (internal quotation marks omitted). Specifically, it was
unclear whether a reasonable officer could have believed he had probable cause to
arrest Dunlap under the state and local laws regarding concealed weapons. See
Picray v. Sealock, 138 F.3d 767, 771-72 (9th Cir. 1998) (holding that officers were
entitled to qualified immunity for arrest because they could reasonably have
concluded under the circumstances that Picray’s conduct violated multiple state
laws; subsequent acquittal on one charge was “not determinative of qualified
immunity”).
The legal framework governing the probable cause determination was
contradictory and confusing, and the singular case on which Dunlap relies, De
Nardo v. State, 819 P.2d 903 (Alaska Ct. App. 1991), does not resolve that
confusion. For a right to be “clearly established,” “a case directly on point” is not
required, “but existing precedent must have placed the statutory or constitutional
question beyond debate.” al-Kidd, 563 U.S. at 741. De Nardo did not place
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beyond debate the question of whether “on the person” applies to concealed
weapons located within easy reach, as De Nardo explicitly declined to define the
“outer boundaries” of “on the person” and did not address the concealed weapons
laws in a factual context similar to that of the instant appeal. 819 P.2d at 908.
Moreover, no case law or statutory definitions clarify how the combination of
Alaska Statute 11.61.220 and Anchorage Municipal Ordinance 8.25.020 operate
under the circumstances at issue here. See Blankenhorn v. City of Orange, 485
F.3d 463, 476 (9th Cir. 2007) (holding that defendants were entitled to qualified
immunity for arrest under California trespass statutes, which did not define key
terms and were not clarified by California case law).
Accordingly, Dunlap fails to carry his burden of demonstrating that the right
allegedly violated was clearly established. See Davis v. Scherer, 468 U.S. 183, 197
(1984) (“A plaintiff who seeks damages for violation of constitutional or statutory
rights may overcome the defendant official’s qualified immunity only by showing
that those rights were clearly established at the time of the conduct at issue.”). The
district court correctly held that Henry is entitled to qualified immunity.
The conclusion that Henry is entitled to qualified immunity does not resolve
Dunlap’s § 1983 claims against APD and MOA; however, Dunlap did not address
those claims on appeal. Nor did he address his state law claims against Henry.
Accordingly, those claims are waived. See Smith v. Marsh, 194 F.3d 1045, 1052
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(9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in its opening brief
are deemed waived.”).
AFFIRMED.
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