NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAR 21 2012

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MAX J. ANDERSON, No. 10-36140

Plaintiff - Appellant, D.C. No. 3:09-cv-05797-RBL

v.

MEMORANDUM*

CITY OF BAINBRIDGE ISLAND, a municipal corporation; RICHARD CHRISTOPHERSON, in his capacity as a police officer for the City of Bainbridge Island and as an individual; GUY ROCHE, in his capacity as a police officer for the City of Bainbridge Island, and as an individual,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted February 10, 2012 Seattle, Washington

Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appellant, Max Anderson, appeals the district court’s order granting

summary judgment to Appellees—City of Bainbridge Island, Richard

Christopherson, and Guy Roche—in his 42 U.S.C. § 1983 action alleging that

Officers Christopherson and Roche violated his Fourth Amendment rights by using

excessive force during his arrest. The district court held that the officers’ actions

were reasonable as a matter of law, and that, in the alternative, the officers were

entitled to qualified immunity. The district court also granted summary judgment

in favor of Appellees on Anderson’s state law tort claim of assault. We affirm.

Sometime after midnight on October 28, 2007, Officers Christopherson and

Roche were parked on Bainbridge Island when they observed a vehicle, traveling

at a high speed, pass a van in a no-passing zone. The police officers turned on

their emergency lights to follow. The vehicle then led them on a high-speed chase

at 85 m.p.h., in a 55 m.p.h. zone, until the vehicle’s driver turned the headlights off

and pulled into an industrial parking lot. The driver of the vehicle, Anderson, later

declared that he had then parked behind a trailer to hide from the officers. The

officers called for backup protection, and they drove into the parking lot after the

requested two additional units arrived. As the officers drove into the parking lot,

they saw someone approaching them on foot with his hands in the air and a

driver’s license in his right hand. The officers then drove to within fifteen to thirty

2 feet of Anderson, and placed a police car spotlight on him. The police exited their

vehicles, pointed their guns at Anderson’s chest, ordered him to turn around and

get on the ground. Their guns were pointed at him for approximately thirty

seconds before he was handcuffed and arrested.

In claiming that the officers’ use of force was excessive, Anderson stresses

that he was not, in fact, a threat and that the officers knew him as the son of one of

their colleagues. He argues on appeal that there is a material issue of fact as to

whether, as he was walking toward the officers, they recognized him and therefore

should have known that because he was the son of a police officer he was not a

threat.

Anderson asserts in his deposition that the officers recognized him as the son

of a coworker. We first observe that this is a conclusory and speculative assertion

about the officers’ state of mind. The officers have said they did not recognize

him. To raise a genuine issue of material fact, the assertion made by the non-

moving party must be properly supported by admissible evidence. Fed. R. Civ. P.

56(e). “Conclusory, speculative testimony in affidavits and moving papers is

insufficient to raise genuine issues of fact and defeat summary judgment.”

Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

3 The dispositive issue in the case with regard to the defendants’ liability is

“whether the officers’ actions [were] ‘objectively reasonable’ in light of the facts

and circumstances confronting them, without regard to their underlying intent or

motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). The issue is thus

whether in the early morning hour in question, the officers’ conduct was

objectively reasonable in considering Anderson to be a possible threat. “The

reasonableness of a particular use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001) (internal quotation

marks and citation omitted).

Even assuming the officers did recognize Anderson after he exited the

vehicle, the issue remains whether the officers’ conduct was objectively reasonable

in light of all the circumstances. The officers’ personal recognition would not

necessarily matter if there were objective reasons supporting the level of force

used. See Ryburn v. Huff, 132 S. Ct. 987, 991 (2012) (warning judges to “be

cautious about second-guessing a police officer’s assessment, made on the scene,

of the danger presented by a particular situation”).

In this case, the district court found that the officers used the appropriate

level of force to secure Anderson given the totality of the circumstances. As the

4 district court said, “Anderson was driving recklessly, [and] attempt[ed] to elude

police . . . [by driving] without headlights in [a] dark, commercial park.”

Anderson created a dangerous situation by attempting to evade police in a late-

night, high-speed chase. See Scott v. Harris, 550 U.S. 372, 384 (2007) (reasoning

that the parties’ relative culpability—who created the dangerous situation—is

relevant to determining objective reasonableness). Accepting Anderson’s version

of events, the officers trained their guns on him for only thirty seconds, just long

enough to determine that he was unarmed and to arrest him. Anderson relies on

cases concerning weapons pointed at non-threatening individuals, exemplified by

Tekle v. United States, 511 F.3d 839, 845–46 (9th Cir. 2007), where officers held a

gun to the head of an eleven-year-old child. Anderson was not innocent, but a

driver, whom the officers had observed breaking the law. The district court

correctly held that the force used in this case was reasonable under the

circumstances.

Because the force used was not excessive, we also affirm the district court’s

dismissal of Anderson’s state law assault and battery claim. See Boyles v. City of

Kennewick, 813 P.2d 178, 179 (Wash. Ct. App. 1991), review denied, 822 P.2d 288

(Wash. 1991).

AFFIRMED.

5

FILED

Anderson v. City of Bainbridge Island, 10-36140 MAR 21 2012

MOLLY C. DWYER, CLERK

GOULD, Circuit Judge, Dissenting: U.S. COURT OF APPEALS

I conclude that there is a genuine dispute of material fact whether the

officers’ use of force was excessive. We give Appellant the benefit of all

justifiable inferences. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);

McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1115 n.5 (9th Cir. 2004). Whether

Appellees recognized Appellant is important in my view to whether there was a

need for threatened deadly force. Tekle v. United States, 511 F.3d 839, 844–45

(9th Cir. 2007).

Appellant has provided sufficient evidence from which a jury could infer

that the officers knew his identity when they pointed their guns at him. Both

officers worked with Appellant’s father. Appellant had attended Officer Roche’s

wedding. Officer Roche had been a social guest at Appellant’s parents’ house.

Officer Christopherson had pulled Appellant over for speeding not long before this

incident. At the time when deadly force was threatened by pointing guns at

Appellant, he was lit up with a bright spotlight and not too far away from the

officers, perhaps a distance of fifteen to thirty feet. A jury may permissibly infer

from these facts that the officers recognized Appellant before drawing their

weapons. That evidence makes Max Anderson’s contention that the officers

recognized him more than “[c]onclusory, speculative testimony . . . insufficient to raise genuine issues of fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,

984 (9th Cir. 2007). That salient fact, at least on Appellant’s version of the

evidence which is credited for summary judgment purposes, requires reversal.

If a jury determined that Appellees recognized Appellant, it could rationally

also determine that because the officers knew who Appellant was, they knew that

he was not a threat posing danger when he walked forward with hands in the air.

Upon recognition, this obviously would be a case of a teenage (Max Anderson was

sixteen years old at the time) driver’s serious driving misadventure. There were at

least three bad mistakes: passing a van in a no pass zone, leading police on a high

speed chase at speeds up to 85 m.p.h. when the limit was 55 m.p.h., and trying to

evade the police stop by speeding and hiding to avoid punishment. This is more

than one serious lapse of judgment. But those occur with teenagers from time to

time, and it would not seem to pose a threat to officer safety once Max Anderson

walked forward with hands in the air. I do not suggest that police generally may

treat more favorably those they know, as compared to strangers. But here the

governing legal standard asks us to assess danger and need for force in the total

circumstances. If Officers Christopherson and Roche knew the identity of Max

Anderson when they drew their guns, a jury could reasonably infer that they did

not then have an objectively justifiable fear of danger. Pointing a gun at a person is a high level of force,1 and a jury could perceive that there was no need for

threatened deadly force if the officers had recognized Appellant. A jury rationally

could conclude, when balancing the level of deployed force against the need for

that force, that the Officers’ use of force was objectively unreasonable. For

example, if Max Anderson was recognized before guns were drawn, then a jury

could rationally decide that it was objectively unreasonable of the officers to

threaten deadly force to teach a teenager a lesson. I respectfully dissent, believing

that Appellant’s case should have gone to a jury, which would be in a position to

resolve disputed facts and then apply the correct legal standard.2

1 A much lower level of force would be presented by an officer bringing a gun to a “low ready” position without aiming it at a person, but here on summary judgment we accept Appellant’s factual version that two guns were pointed at him. 2 I would also reverse the district court’s decision that the officers were entitled to qualified immunity. The excessive force standard is clearly established such that a reasonable official would have known his or her actions were not lawful. Saucier v. Katz, 533 U.S. 194, 201 (2001) (as modified by Pearson v. Callahan, 555 U.S. 223, 236 (2009)). Also, because the State of Washington does not recognize qualified immunity for a claim of assault and battery arising from the use of excessive force to effectuate an arrest, I would reverse the dismissal of the state law claim. Staats v. Brown, 991 P.2d 615, 627–28 (Wash. 2000).