Joseph Gendreau v. City of Mercer Island

FILED

NOT FOR PUBLICATION MAY 23 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH L GENDREAU, No. 13-35025

Plaintiff - Appellant, D.C. No. 2:11-cv-01385-TSZ

v.

MEMORANDUM*

CITY OF MERCER ISLAND, a municipal corporation; ROBB KRAMP, in his capacity as a police officer for the City of Mercer Island and as an individual,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, Senior District Judge, Presiding

Submitted May 13, 2014** Seattle, Washington

Before: O’SCANNLAIN, BERZON, and TALLMAN, Circuit Judges.

Joseph Gendreau appeals summary judgment against his section 1983 and

state law claims naming the City of Mercer Island and Mercer Island Police Officer

* 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). Robb Kramp. Central to each claim is the…

concurring:

I concur as to qualified immunity only. I would not reach the question whether there was in fact probable cause to believe an assault was committed. I tend to think there was not. But the question is close enough that I cannot say that a reasonable police officer could not have concluded otherwise. See Saucier v. Katz, 533 U.S. 194 , 202, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001).

MEMORANDUM **

Joseph Gendreau appeals summary judgment against his section 1983 and state law claims naming the City of Mercer Island and Mercer Island Police Officer Robb Kramp. Central to each claim is the allegation that Officer Kramp lacked probable cause to arrest Gendreau. The district court found probable cause and, in the alternative, that Officer Kramp was entitled to qualified immunity. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We agree and affirm.

Gendreau got into an altercation with a realtor who had parked in his driveway while he was away. Following the altercation, the realtor, Ms. Forschler, gave a sworn statement to Officer Kramp. In it, she explained that she and her client had parked in Gendreau’s driveway to view a nearby listed home. When she returned to her car, she saw Gendreau exit his vehicle, which he had parked behind hers, blocking her exit. Gendreau walked toward her briskly, shouting and cursing. 1 She said that Gendreau threatened to get her fired. He then confronted her and swiped papers from her hands. Forschler *727 was in “utter shock” and feared for her safety, so much so that she lost control of her bladder. 2

Officer Kramp also…