FILED

NOT FOR PUBLICATION

JUN 06 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL WEDDLE, No. 17-15150

Plaintiff-Appellant, D.C. No. 2:15-cv-02041-RCJ-NJK

v. MEMORANDUM*

ALAN NUTZMAN, Officer, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Robert C. Jones, District Judge, Presiding

Argued and Submitted April 13, 2018 San Francisco, California

Before: WARDLAW and HURWITZ, Circuit Judges, and OLIVER,** District Judge.

Paul Weddle appeals an order granting summary judgment, based on

qualified immunity, in favor of Officer Alan Nutzman and Officer David Olson

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. (the “Defendant Officers”), in this 42 U.S.C. § 1983 action alleging excessive use

of force. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

We review a district court’s grant of summary judgment de novo. Warren v.

City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). When “analyzing whether a

government official is entitled to qualified immunity, the court looks at two distinct

questions.” Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010) (citation

omitted). First, we decide “whether the facts alleged, construed in the light most

favorable to the injured party, establish the violation of a constitutional right.” Id.

(citation omitted). Next, “the court decides whether the right is clearly established

such that a reasonable government official would have known that his conduct was

unlawful in the situation he confronted.” Id. (citation omitted). Courts have

discretion in deciding which of the two prongs of the qualified immunity analysis

to address first in light of the circumstances in the particular case. See Pearson v.

Callahan, 555 U.S. 223, 236 (2009).

Weddle, who stole an airplane and was observed conducting several “touch

and go” landings, was arrested after taking an extensive amount of time to respond

to repeated officer commands to exit the airplane. When he finally exited the

plane, Weddle was holding a dark object, later determined to be a radio. Weddle

argues that a front arm takedown during his arrest and single leg strike to separate

2 his legs for a weapons search constituted excessive use of force. We find that, at

the time of the incident, even if their use of force was more than the situation

required, there did not exist clearly established precedent that would have put the

Defendant Officers on notice that their conduct was unlawful in the situation they

confronted. Therefore, the district court properly granted summary judgment on

Weddle’s § 1983 claims based on qualified immunity.

AFFIRMED.

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