Ralph Kermit Winterrowd, 2nd v. BRAD L. NELSON; JOHN CYR; JORGE No. 04-35855 SANTIAGO, D.C. No.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RALPH KERMIT WINTERROWD, 2ND,
Plaintiff-Appellee,
v.
BRAD L. NELSON; JOHN CYR; JORGE No. 04-35855
SANTIAGO, D.C. No.
Defendants-Appellants,  CV-02-00097-JKS
v. OPINION
LEVITICUS WASHINGTON; MICHAEL
E. BURKMIRE; DEL SMITH; DENNIS
CASANOVAS,
Defendants. 
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Chief District Judge, Presiding
Argued and Submitted
July 25, 2006—Anchorage, Alaska
Filed March 30, 2007
Before: Alex Kozinski, Marsha S. Berzon and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Kozinski
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COUNSEL
Gregg D. Penkes, Attorney General, Stephanie Galbraith
Moore, Assistant Attorney General, Anchorage, Alaska, for
the defendants-appellants.
Ralph Kermit Winterrowd 2nd, pro se, Knik, Alaska, for the
plaintiff-appellee.
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OPINION
KOZINSKI, Circuit Judge:
We consider a claim of qualified immunity for the use of
force during an ordinary traffic stop.
Facts
Ralph Kermit Winterrowd 2d wasn’t weaving across the
road when the Alaska State Troopers pulled him over. He
wasn’t speeding. He didn’t even coast through a stop sign. He
was pulled over because the troopers suspected his plates
were invalid.
As is typical in such circumstances, the troopers who pulled
him over—Brad L. Nelson, John R. Cyr, Jorge A. Santiago,
and Robert M. Baty—asked Winterrowd to produce his driv-
er’s license and registration. Winterrowd was unable to pro-
duce valid registration.1 The troopers then ordered him out of
his vehicle. Because they intended to speak with him inside
a patrol car, they attempted to perform a routine pat-down for
officer safety.
As Winterrowd faced the police car, Nelson ordered him to
put his hands behind his back.2 Nelson saw no signs of a
weapon, and Winterrowd offered no physical threat to the
officers. Instead, Winterrowd explained that he could not put
his hands behind his back because he had a shoulder injury.
According to Winterrowd, the officers responded by forcing
1From what we can tell from the record, Winterrowd takes the curious
(and legally unjustified) position that the State of Alaska lacks the author-
ity to require him to register his vehicle.
2Nelson admits that he could have administered the pat-down in a way
that did not require Winterrowd to put his hands behind his back. A pat-
down can be conducted in a number of ways. The individual could hold
his arms over his head, out to the sides or he could lean forward onto the
police car.
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him onto the hood of the car. Nelson then grabbed Winter-
rowd’s right arm and forced it up. When Winterrowd
screamed in pain, the trooper applied greater pressure, pump-
ing his arm up and down. After several seconds of this treat-
ment, Nelson released Winterrowd, who fell to the ground.3
Winterrowd brought this action in federal court. The dis-
trict court dismissed most of his claims on summary judg-
ment, but found disputed material facts supporting his 42
U.S.C. § 1983 claim that the troopers used excessive force
during the pat-down.4 The district judge concluded that defen-
3Because this case arises on the troopers’ motion for summary judgment
on a qualified immunity claim, we present the facts in the light most favor-
able to Winterrowd. See Adams v. Speers, 473 F.3d 989, 990-91 (9th Cir.
2007). The officers claim Winterrowd turned towards Nelson during the
pat-down, but Winterrowd claims he made no aggressive moves, and that
if he turned, it was an involuntary response to Nelson’s forcing his arm
behind his back. A jury will have to resolve the conflicting versions as to
what transpired after the stop.
Defendants also claim Winterrowd presented no evidence, instead mak-
ing only general assertions in legal memoranda. See British Airways Bd.
v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978). But Winterrowd—who
represents himself—appended affidavits to briefs he submitted to the dis-
trict court after his amended complaint. Those affidavits stated, “I . . . do
swear (or affirm) that the foregoing facts in this document . . . are true and
correct under the penalties of [sic] perjury.” While this procedure is some-
what unorthodox, it substantially complies with Fed. R. Civ. P. 56(e),
because it exposes Winterrowd to prosecution for perjury for any deliber-
ately false factual statements in his briefs. While we might not counte-
nance such a shortcut where a party is represented by counsel, we give pro
se litigants greater latitude as to the format of their presentation. Michen-
felder v. Sumner, 860 F.2d 328, 338 (9th Cir. 1988).
4We have held that officers are justified in patting down an individual
when they plan to have him sit in a patrol car. See United States v. Thomp-
son, 597 F.2d 187, 190 (9th Cir. 1979). The circumstances in Thompson,
however, differ from those here. In Thompson, “a standard police identifi-
cation process” took place while the suspect was in the patrol vehicle. Id.
Sitting in close proximity with a suspect presents officer safety concerns.
And, as Thompson suggests, those concerns are heightened when an indi-
vidual refuses to present identification. After all, the suspect could be con-
cealing his identity for nefarious purposes.
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dants weren’t entitled to qualified immunity on summary
judgment. The troopers now bring this interlocutory appeal.5
Analysis
A patrol officer may conduct scores of traffic stops every
month, and perform numerous pat-downs. During the course
of this work, the officer will inevitably meet individuals who
cannot immediately comply with his instructions. People are
slow or hard of hearing. They suffer from bad backs, joint
problems or tendinitis.
Unlike the situation in Thompson, the officers here were not dealing
with an unknown individual. See p. 3704 infra. Instead, at least one of
those officers, Cyr, indicated that he was familiar with Winterrowd when
they pulled him over; there is no evidence that Winterrowd failed to pro-
duce his driver’s license. Whether the pat-down in this case was legal
under Thompson is thus an open question. Because the legality of the pat-
down is not at issue on this appeal, we assume—without deciding—that
the pat-down was lawful.
5Winterrowd cross-appeals from the district court’s grant of summary
judgment to defendants on his other claims. We have jurisdiction to hear
the government’s appeal of his denial of qualified immunity because such
denial is an appealable final decision. Wong v. United States, 373 F.3d
952, 960 (9th Cir. 2004). We may exercise jurisdiction over Winterrowd’s
other claims only if “the ruling is ‘inextricably intertwined’ with a claim
properly before us on interlocutory appeal.” Id. (quoting Cunningham v.
Gates, 229 F.3d 1271, 1284-85 (9th Cir. 2000)).
Winterrowd’s other claims against the defendants—that they unconsti-
tutionally seized his property, failed to comply with various federal and
state regulations and issued citations that were incompatible with federal
law—and his claim that his constitutional rights were violated during the
course of the district court proceedings, are all unrelated to the question
of whether the troopers used excessive force against him. We need not
decide the merits of those claims in order to dispose of the qualified
immunity claim, and we therefore lack jurisdiction to decide those issues
in this appeal. Id.
Winterrowd also raises new claims and provides new evidence on
appeal. We grant the defendants’ motion to strike, to the extent that the
material presented was not before the district court.
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[1] Naturally, a police officer need not endanger himself by
unduly crediting a suspect’s mere claim of injury. We recog-
nize that some suspects may feign injury in an attempt to hide
weapons. But a statement that a suspect is physically unable
to comply with a request does not, by itself, justify the use of
force. Instead, the police may use force only when the intru-
sion on the individual’s liberty is outweighed by the govern-
mental interests at stake. See Blanford v. Sacramento County,
406 F.3d 1110, 1115 (9th Cir. 2005). We must thus determine
whether the officers here could reasonably have concluded
that the use of force was justified.
[2] Accepting Winterrowd’s version of the facts, the troop-
ers could not have so concluded on the basis of the immediate
offense. Winterrowd wasn’t even suspected of driving danger-
ously. Instead, the officers believed his license plates were
invalid. No reasonable officer could conclude that an individ-
ual suspected of a license plate violation posed a threat that
would justify slamming him against the hood of a car.
[3] Nor could the troopers have so concluded on the basis
of any other fact presented here. Winterrowd didn’t take a
swing at the officers, nor did the officers detect suspicious
bulges or metallic glints on his person. According to Winter-
rowd, he didn’t resist the officers, nor did he flee.
The officers point to only three contemporaneous observa-
tions that they believe justified their use of force. First, the
officers argue that, because they removed twenty to twenty-
five pens and pencils from Winterrowd’s person, they could
reasonably have concluded that he posed an immediate threat.
But pens and pencils have legitimate, non-violent uses; many
motorists carry them. The fact that ordinary objects in the
possession of a suspect could be used as weapons cannot,
standing alone, justify the use of force. There would have to
be some indication that the individual in question intended to
use these utensils to threaten or harm the officers. Any other
rule would authorize the police to use force against virtually
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all motorists simply because they carry writing utensils, keys
or other ordinary objects that could potentially be used as
weapons.
[4] Defendants do not claim that Winterrowd reached for a
pen or pencil, or that he gave any other indication that he
planned to wield those items belligerently. The fact that Win-
terrowd had more than the usual number of such utensils is of
no consequence. Having a large number of pencils may sug-
gest some personal eccentricity, but it does not make it more
likely that one of those utensils will be used as a weapon or
otherwise enhance the risk to the officers. At most, it might
suggest that the officers could reasonably exercise greater
caution during the encounter.
[5] Second, the troopers imply that their use of force was
justified because Winterrowd carried a firearm in his car.6 But
they were unaware of this fact when they forced him onto the
hood of their car. In any event, Winterrowd was well away
from his vehicle, and unable to access the weapon at the time.
[6] Third, the officers point to Winterrowd’s belligerent
attitude and his belief that he was not required to register his
vehicle. But on summary judgment we must accept Winter-
rowd’s claim that he was neither threatening nor physically
abusive. Winterrowd believed he was not required to register
his vehicle with the State of Alaska. Such a belief—a mistake
of law—is no different from that of a motorist who failed to
see a stop sign, or who didn’t realize the speed limit had
dropped to 45 miles per hour. Even if Winterrowd was ada-
mant that registration was not required, that attitude would not
justify the deliberate infliction of pain. Winterrowd’s objec-
tions were entirely verbal. At worst, the officers could con-
clude that he scoffed at state bureaucracy. Such an attitude
6Nothing in the record suggests that Winterrowd’s possession of the gun
was illegal.
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poses no physical danger and thus cannot justify the force
allegedly used here.
The troopers also claim that they feared for their safety
based on prior experiences with Winterrowd. The officers
point to no facts that would have justified such a fear, voicing
only vague suspicions: “I was aware that Mr. Winterrowd
presented officer safety issues, including the exhibition of a
hostile attitude toward Law Enforcement officers.”
[7] Such generalized concerns, standing alone, cannot jus-
tify the use of force. See Deorle v. Rutherford, 272 F.3d 1272,
1281 (9th Cir. 2001) (“[A] simple statement by an officer that
he fears for his safety or the safety of others is not enough;
there must be objective factors to justify such a concern.”).
The officers do not cite a single instance where Winterrowd
was physically abusive when stopped by the police. At least
one of the officers had, in fact, dealt with Winterrowd in the
past, see n.4, supra, yet he presented no declaration that Win-
terrowd had been physically abusive during the prior encoun-
ters. At most, Winterrowd was shown to be verbally abusive;
after being forced onto the hood of the car, he called the offi-
cers “jackbooted thugs,” “armed mercenaries” and
“[c]owards.” Assuming that Winterrowd had used such epi-
thets in the past, they would not justify the use of force. No
officer likes being called a coward, but Winterrowd is well
within his rights in making such statements. “[W]hile police,
no less than anyone else, may resent having obscene words
and gestures directed at them, they may not exercise the awe-
some power at their disposal to punish individuals for conduct
that is not merely lawful, but protected by the First Amend-
ment.” Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th
Cir. 1990).7
7Indeed, this fact may cut the other way. Having recognized Winter-
rowd, the officers may have remembered that he didn’t pay them the def-
erence they believed was their due. Their behavior, then, may have been
a response to his exercise of First Amendment rights, rather than to the
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None of the violations that gave rise to Winterrowd’s prior
encounters with the police suggest a reasonable fear that he
could be dangerous. He had been cited multiple times for hav-
ing expired vehicle registrations, for failing to carry his driv-
er’s license, for failing to display plates and for failing to
insure his vehicle. Such passive offenses cannot give rise to
a reasonable inference that the suspect is dangerous, no matter
how many of them he may have committed.
[8] The officers no doubt had an interest in confirming that
Winterrowd was unarmed, but they had no justification for
doing so in a physically abusive manner, as Winterrowd
alleges. There were many ways the troopers could have
checked for weapons short of pushing Winterrowd onto the
hood of the police vehicle and yanking the arm he claimed
was injured. Even if the officers doubted Winterrowd’s claim
that he had a shoulder injury, they were not entitled to use
force to gain his compliance. When no immediate threat is
posed and the police can use other means of patting down a
suspect, they may not insist on doing so in a manner that will
cause the suspect pain. We do not require officers to risk their
own safety by crediting a suspect’s claim that he is injured;
we hold only that a verbal refusal to comply on grounds of
physical impossibility does not justify the kind of manhan-
dling that Winterrowd claims the officers inflicted on him.
[9] We now turn to whether a reasonable officer would
have known that the use of force here was excessive. See Sau-
cier v. Katz, 533 U.S. 194, 202 (2001). Officers are entitled
to qualified immunity unless they have been given fair notice
that their conduct was unreasonable “in light of the specific
present situation. While we must consider the facts here “without regard
to the arresting officer’s subjective motivation for using force,” Tatum v.
City & County of S.F., 441 F.3d 1090, 1095 (9th Cir. 2006), the officers’
underlying motivations could cast doubt on their version of the incident.
This is a matter to be sorted out by the trier of fact.
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context of the case.” Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (per curiam) (quoting Saucier, 533 U.S. at 201). In
Meredith v. Erath, 342 F.3d 1057 (9th Cir. 2003), we found
the suspect “did not pose a safety risk and made no attempt
to leave.” Id. at 1061. Likewise, the crimes being investigated
were “nonviolent offenses.” She may have “loudly asked . . .
to see a search warrant” and “passively resisted” handcuffing,
but did not use physical force. We found it clearly established
that “grab[bing] [her] by the arms, throw[ing] her to the
ground, and twist[ing] her arms while handcuffing her” was
unreasonable. Id. Because we held in Meredith that the law on
this point was clearly established as of July 10, 1998, it was
also clearly established for the later incident here. No reason-
able officer would believe he could constitutionally force a
harmless motorist against the hood of a car and cause him
unnecessary pain. See id. That the suspect claims he is unable
to comply with instructions to put his arm behind his back
provides no further justification. No reasonable officer could
have thought otherwise.
* * *
[10] An officer may not use force solely because a suspect
tells him he is incapable of complying with a request during
the course of an ordinary pat-down. The officers here admit
that they could have patted Winterrowd down without forcing
his arm behind his back. They have shown no justification for
pushing him onto the hood of the police car and yanking his
arm. While the officers tell a different story, we must accept
Winterrowd’s version of the event. Because the facts, if
resolved in Winterrowd’s favor, would show the officers vio-
lated his clearly established constitutional rights, the district
court did not err in denying the motion for summary judgment
on grounds of qualified immunity.
AFFIRMED.
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