Stephen Burrell v. Mike McIlroy Glen C. Rector Jeff Thorpe

464 F.3d 853 Stephen BURRELL, Plaintiff-Appellant, v. Mike McILROY; Glen C. Rector; Jeff Thorpe, Defendants-Appellees. No. 02-15114. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 13, 2004. Filed September 19, 2005. Amended September 20, 2006. Plaintiff-appellant was represented by Steven A. Engel and Susan Kearns of Kirkland & Ellis LLP of Washington, D.C. Defendants-appellees were represented by Peter Angulo of Las Vegas, Nevada, at oral argument, and by Thomas D. Dilliard, Jr., and Lilli C. Hitt of Rawlings, Olson, Cannon, Gormley & Desruisseaux of Las Vegas, NV, on the briefs. Appeal from the United States District Court for the District of Nevada; Kent J. Dawson, District Judge, Presiding. D.C. No. CV-99-01612-KJD. Before JAMES L. OAKES, * ANDREW J. KLEINFELD, and CONSUELO M. CALLAHAN, Circuit Judges. ORDER AND AMENDED OPINION CALLAHAN, Circuit Judge. ORDER 1 The opinion and dissent filed on September 19, 2005, and published at 423 F.3d 1121 (9th Cir.2005) are hereby amended. An amended opinion and dissent are to be filed concurrently with this order. 2 With the filing of the amended opinion and dissent, Judges Kleinfeld and Callahan…

ORDER AND AMENDED OPINION

ORDER

The opinion and dissent filed on September 19, 2005, and published at 423 F.3d 1121 (9th Cir.2005) are hereby amended. An amended opinion and dissent are to be filed concurrently with this order.

With the filing of the amended opinion and dissent, Judges Kleinfeld and Callahan have voted to deny the petition for rehearing and suggestion for rehearing en banc. Judge Oakes voted to grant the petition for rehearing.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is DENIED. No subsequent petitions for rehearing or petitions for rehearing en banc may be filed.

OPINION

Stephen Burrell (Burrell) appeals the district court’s grant of summary judgment on behalf of various detectives of the Las Vegas Metropolitan Police Department in this 42 U.S.C. § 1983 action. This court reviews the grant of summary judgment de novo, and may affirm on any basis supported by the record. Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir.2003); Hell’s Angels…

dissenting:

I respectfully dissent from the majority’s holding that “a reasonable officer in Detective Rector’s position would have believed that he had probable cause to arrest Burrell and to use force in doing so.” *860 Majority Op. at 857. My dissent is based on the following reasoning.

Not one of the defendants’ submissions forming the record on this appeal contains a sworn statement or assertion by defendants that they had specific information, as the cases require, that Burrell was personally armed when he was approached by Detective Rector. Defendants assert, in lieu of the argument based upon Michigan v. Summers advanced in the district court, that the facts supporting their yet-unapproved application for the search warrant, alone and without the need for any other suspicion-engendering event, provided legal justification for the arrest tactics used in seizing Burrell. The record, however, is devoid of any particularized facts or objective bases justifying the type of seizure effected here.

Furthermore, while defendants’ counsel contended at oral argument that the officers believed Burrell to be armed, counsel’s argument does not constitute record evidence of the…