Malcolm L. Landry v. Mike Berry

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MALCOLM L. LANDRY,
Plaintiff - Appellee,
v.
MIKE BERRY,
Defendant - Appellant.
No. 11-17588
D.C. No. 3:10-cv-04707-RS
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted June 25, 2013
Seattle, Washington
Before: McKEOWN, CALLAHAN, and IKUTA, Circuit Judges.
Mike Berry, a California Highway Patrol officer, appeals from the district
court’s denial of summary judgment. We have jurisdiction under 28 U.S.C.
§ 1291, and we reverse.
FILED
JUL 02 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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“[W]e are not precluded from hearing this interlocutory appeal merely
because there are issues of fact in dispute.” Wilkins v. City of Oakland, 350 F.3d
949, 951 (9th Cir. 2003). We may “determine if the denial of qualified immunity
was proper by assuming that the version of events offered by [Malcolm Landry] is
correct.” Id.
We do not consider whether a constitutional violation occurred and decide
only that the district court erred in holding that Berry was not entitled to qualified
immunity. See Pearson v. Callahan, 555 U.S. 223, 235–36 (2009). “Even law
enforcement officials who ‘reasonably but mistakenly conclude that probable cause
is present’ are entitled to immunity.” Hunter v. Bryant, 502 U.S. 224, 227 (1991)
(quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). “[A]n officer who
makes a reasonable mistake as to what the law requires under a given set of
circumstances is entitled to the immunity defense.” Boyd v. Benton Cnty., 374
F.3d 773, 781 (9th Cir. 2004). We conclude that it would not have been “clear to a
reasonable officer that [Berry’s] conduct was unlawful in the situation he
confronted,” Saucier v. Katz, 533 U.S. 194, 202 (2001), because there is no
decisional authority in this or other circuits establishing that detaining someone
under the circumstances Berry confronted—repeated complaints about Landry’s
inexplicably erratic driving, the chaotic state of his car, observations of fresh
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damage to his car and a nearby guardrail, his refusal to abide by instructions to
remain at a hotel until he could be picked up, and his puzzling responses to Berry’s
questions—is unconstitutional. See Stoot v. City of Everett, 582 F.3d 910, 922 (9th
Cir. 2009). Berry’s conduct was not “so patently violative” of Landry’s rights that
he would have known “without guidance from the courts” that his actions were
unlawful. Boyd, 374 F.3d at 781 (quoting Deorle v. Rutherford, 272 F.3d 1272,
1286 (9th Cir. 2001)). Accordingly, Berry is entitled to summary judgment on the
basis of qualified immunity.
REVERSED.
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