Becker v. City of Independence

59 F. App'x 955

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2003
• Docket: No. 01-36047; D.C. No. CV-00-01744-PA
• Status: Published

Opinions

MEMORANDUM

**

Daniel Becker appeals the district court’s grant of summary judgment against him in his civil rights action against the City of Independence and four police officers (hereafter collectively “the officers”) for alleged use of excessive force. See U.S. Const, amend. IV; 42 U.S.C. § 1983. We affirm.

(1) We have reviewed the record, including the videotape of the incident, and we are unable to say that the use of force was not objectively reasonable under the circumstances. See Saucier v. Katz, 533 U.S. 194, 204-05, 121 S.Ct. 2151, 2157-58, 150 L.Ed.2d 272 (2001); Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989); Robinson v. Solano County, 278 F.3d 1007, 1013-14 (9th Cir.2002) (en banc); Scott v. Henrich, 39 F.3d 912, 914-15 (9th Cir.1994); see also Young v. Harrison, 284 F.3d 863, 866 (8th Cir.2002); cf. Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1130-31 (9th Cir.2002) (no good reason for particular use of force). Thus, the force used was not excessive, and Becker’s Fourth Amendment rights were not violated.

(2) Even if the force used here were determined to be excessive, we would proceed to ask whether the officers’ mistaken belief to the contrary was reasonable. See Saucier, 533 U.S. at 206-07, 121 S.Ct. at 2158-59. We would have to conclude that it was. In other words, no clearly established right of Becker was violated. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Robinson, 278 F.3d at 1015-16.¹

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Becker cannot succeed on his appeal of the district court's grant of summary judgment on his state tort claims because the judgment rested on two bases, and he does not attack one of them — the failure to give timely notice. See MacKay v. Pfeil, 827 F.2d 540, 542 n. 2 (9th Cir.1987); see also First Fid. Bank v. Pub. Serv. Co. (In re Pub. Serv. Co.), 879 F.2d 987, 989-90 (1st Cir.1989).