Christopher Hansen v. Joshua Nieves ( 2012 )

FILED
NOT FOR PUBLICATION SEP 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHRISTOPHER H. HANSEN; et al., No. 10-16941
Plaintiffs - Appellants, D.C. No. 2:08-cv-00479-JCM-RJJ
v.
MEMORANDUM *
JOSHUA NIEVES; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Christopher H. Hansen, Dawn E. Hansen, Joshua Hansen, and Whitney F.
Hansen appeal pro se from the district court’s summary judgment in their 42
U.S.C. § 1983 action arising from an emergency response to a disturbance between
*
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).
the Hansens and their neighbor. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the district court’s grant of summary judgment, and we may affirm
on any ground supported by the record. Moreland v. Las Vegas Metro. Police
Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). We affirm.
The district court properly granted summary judgment on the Hansens’
Fourth Amendment claims arising out of their detention because the Hansens failed
to raise a genuine dispute of material fact as to whether the officers had reason to
believe that an assault with a deadly weapon may have occurred. See Terry v.
Ohio, 392 U.S. 1, 30 (1968). Further, the Hansens failed to raise a genuine dispute
as to whether the length of their detention violated the Fourth Amendment or
Nevada law. See United States v. Torres-Sanchez, 83 F.3d 1123, 1128-29 (9th Cir.
1996); see also Nev. Rev. Stat. § 171.123(4) (an individual “must not be detained
longer than is necessary to effect the purposes of [the investigation] and in no
event longer than 60 minutes”).
Summary judgment was proper on Christopher’s Fourth Amendment claims
arising out of the pat-down search. See Ybarra v. Illinois, 444 U.S. 85, 94 (1979)
(officer may conduct pat-down search based on reasonable suspicion that the
person to be searched may have weapons in his possession); see also Graham v.
Connor, 490 U.S. 386, 396 (1989) (discussing factors to consider in determining
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reasonableness of force used).
Summary judgment was proper on Joshua’s claims arising out of the seizure
of his unregistered handgun because the undisputed facts demonstrate that Joshua
was not coerced into going into the home and getting the weapon, and thus did so
voluntarily; and that the officers had reason to believe that Joshua had committed a
misdemeanor by possessing the unregistered handgun. See Clark County
Ordinance §§ 12.04.110, 12.04.200, 12.04.220.
The district court properly granted summary judgment on the claims against
LVMPD because there is no respondeat superior liability against municipalities
under § 1983, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978), and
there is no evidence that any of the defendants violated the Hansens’ constitutional
rights, see City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
Any misstatement of the facts by the district court is harmless in light of our
de novo review and ability to affirm on any basis supported by the record. See
Moreland, 159 F.3d at 369.
We do not consider issues that are not specifically and distinctly raised and
argued in the opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999).
AFFIRMED.
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