## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 28 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSE GALLEGOS, Plaintiff-Appellant, and JULIE GALLEGOS, Plaintiff,

v. CITY OF COLORADO SPRINGS, a municipal corporation, and JOHN DOE, an unidentified hit-and-run driver, Defendants, and MAGDALENA SANTOS and DANIEL LOFGREN, Defendants-Appellees. No. 96-1298 (D.C. No. 95-WY-1559-AJ) (D. Colo.)

Craig Cornish (Donna Dell'Olio on the briefs) of Co rnish & Dell'Olio, Colorado Springs, Colorado, for Plaintiff-Appellant. Stephen K. Hook, Assistant City Attorney (James G. Colvin II, City Attorney, with him on the brief), Colorado Springs, Colorado, for Defendants-Appellees.

Before ANDERSON, TACHA and BRORBY , Circuit Judges.-2-

BRORBY , Circuit Judge.

Appellant Jose Gallegos filed this civil rights act ion in federal court against the city of Colorado Springs and Colorado Springs p olice officers Magdalena Santos and Daniel Lofgren. Mr. Gallegos alleged Of ficer Santos and Sergeant Lofgren deprived him of his rights under the Fourth and Fourteenth Amendments by seizing his person. The United States District Court for the District of Colorado entered judgment for the defendants, concl uding the Colorado Springs police officers did not unreasonably seize Mr. Gall egos. Mr. Gallegos appeals the district court's judgment and we exercise jurisdict ion pursuant to 28 U.S.C. § 1291.

I. FACTUAL AND PROCEDURAL BACKGROUND At approximately 1:08 a.m. on May 20, 1992, OfficerSantos and Sergeant Lofgren received a dispatch in their police cruiserconcerning a reported prowler in the area of the intersection of William Avenue a nd East Cheyenne Road. The dispatcher informed the officers a resident had hea rd noises outside, had seen two people running south on William Avenue, and had "[h ]eard a noise like they were messing with the fence." While in route to the are a of the alleged disturbance,-3-

Sergeant Lofgren and Officer Santos received a seco nd dispatch concerning a report received from another resident of the area. The second dispatch indicated a man and woman were "yelling and arguing" on William Avenue, the man was wearing a white T-shirt, and the man appeared to be drunk.

The officers arrived at William Avenue at approximately 1:15 a.m. Upon their arrival, they observed Mr. Gallegos walking n orth on the east sidewalk of William Avenue. Sergeant Lofgren and Officer Santo s parked their police cruiser and walked toward Mr. Gallegos. As they approached Mr. Gallegos, the officers noticed he was wearing a gray tank top and smelled of alcohol. Mr. Gallegos appeared distraught as he was crying and "talking r eally loudly or shouting." Both of his hands were over his face and he appeare d unsteady on his feet.

Sergeant Lofgren approached Mr. Gallegos in an effo rt to determine what was going on and to ascertain whether Mr. Gallegos had been near the fence that had been mentioned in the first dispatch report. H owever, when Sergeant Lofgren asked Mr. Gallegos what was going on, Mr. Gallegos ignored the sergeant's question. Sergeant Lofgren then grasped Mr. Galleg os' left arm and Mr. Gallegos jerked away and proceeded to walk on the sidewalk. Sergeant Lofgren then grabbed Mr. Gallegos' arm for a second time. In re sponse, Mr. Gallegos jerked-4-

away and exclaimed "[l]eave me the fuck alone."

At that point, Sergeant Lofgren determined, based upon the totality of the circumstances, including Mr. Gallegos' refusal to s top, probable cause existed to arrest Mr. Gallegos for interference with a police officer, in violation of the ordinances of Colorado Springs. Sergeant Lofgren t hus called for backup assistance, using his portable police radio.

At or around the time Sergeant Lofgren was calling for backup assistance, Mr. Gallegos walked into East Cheyenne Road shoutin g unrecognizable words. The officers followed Mr. Gallegos into the road an d Sergeant Lofgren grabbed Mr. Gallegos' shoulder. Mr. Gallegos then jerked away and pivoted and faced the officers. With his fists clenched at waist level, Mr. Gallegos positioned himself in a crouched stance, similar to a wrestler's posit ion.

Officer Lofgren reacted to Mr. Gallegos' crouched p osition by taking a step back from Mr. Gallegos. However, Officer Santos, f earing for her safety, stepped toward Mr. Gallegos and applied an arm bar maneuverto Mr. Gallegos' right1 The arm bar maneuver consisted of Officer Santos grabbing Mr. Gallegos'

right wrist with her right hand while placing her l eft hand close to Mr. Gallegos' shoulder. -5- arm. 1 Upon observing this procedure, Sergeant Lofgren g rasped Mr. Gallegos' left arm and initiated a take-down action to ensure Mr. Gallegos would not strike Officer Santos with his free arm. After some resis tance by Mr. Gallegos, the officers placed Mr. Gallegos face down on the pavem ent. As Sergeant Lofgren reached for his handcuffs, he heard motor vehicles approaching from about a block away. One vehicle swerved past the parties, and a split second later, a second vehicle skidded sideways into Officer Santos and came to a stop on top of Mr. Gallegos.

The vehicle knocked Officer Santos back approximate ly ten feet. After Officer Santos regained her balance, she approached the vehicle and pounded on the passenger window with her flashlight. The vehi cle then backed over Mr. Gallegos and drove away. From the time Sergeant Lo fgren and Officer Santos arrived at William Avenue to the time the vehicle r an over Mr. Gallegos, only one minute and forty-four seconds elapsed.

Mr. Gallegos sustained serious injuries as a resultof being run over by the unidentified vehicle on May 20, 1992. Mr. Gallegos filed suit in federal court2Mr. Gallegos conceded his municipal liability cla im against the City of

Colorado Springs should be dismissed. Accordingly, the district court dismissed this claim in its summary judgment order. -6- against Sergeant Lofgren, Officer Santos, the City of Colorado Springs, and John Doe, a hit-and-run driver, seeking to recover compe nsatory and punitive damages. Mr. Gallegos' amended complaint alleged, inter alia , Sergeant Lofgren and Officer Santos deprived Mr. Gallegos of his Fourth and Fourteenth Amendment rights by stopping him without reasonable suspicionand by unlawfully seizing him without probable cause.

On a motion for summary judgment, the district court determined the stop of Mr. Gallegos by Sergeant Lofgren and Officer San tos was supported by reasonable suspicion. 2 However, the court determined there was a genuine issue of material fact concerning whether Mr. Gallegos wa s seized without probable cause and whether Sergeant Lofgren and Officer Sant os were entitled to qualified immunity for their actions.

Following a bench trial on the issue of liability, the court determined Mr. Gallegos' Fourth and Fourteenth Amendment rights we re not violated because the seizure of Mr. Gallegos was justified by a "reasona bl[e] perceived threat to officer safety." Furthermore, to the extent Mr. Ga llegos was subjected to an-7-

arrest, the court concluded Sergeant Lofgren and Of ficer Santos were entitled to qualified immunity. Following entry of judgment in favor of the defendants, Mr. Gallegos filed his Notice of Appeal.

II. ISSUES RAISED ON APPEAL Mr. Gallegos raises three issues on appeal: (1) wh ether Sergeant Lofgren and Officer Santos violated Mr. Gallegos' Fourth an d Fourteenth Amendment rights by seizing him without reasonable suspicion; (2) whether the seizure of Mr. Gallegos escalated into an arrest that was not supp orted by probable cause, thus violating Mr. Gallegos' Fourth and Fourteenth Amend ment rights; and (3) if the officers seized Mr. Gallegos in violation of his Fo urth and Fourteenth Amendment rights, whether they were entitled to qua lified immunity.

III. ANALYSIS A. Was the Initial Stop of Mr. Gallegos Reasonable Under the Fourth Amendment? The trial court determined the initial stop of Mr. Gallegos by Sergeant Lofgren and Officer Santos was reasonable under the Fourth Amendment because it was supported by reasonable suspicion. Mr. Gall egos contests this determination on appeal. Mr. Gallegos contends the record establishes his Fourth Amendment rights were violated because Sergeant Lof gren and Officer Santos did3 The Fourth Amendment is applicable to the states through the Fourteenth

Amendment. Payton v. New York, 445 U.S. 573, 576 (1980). -8- not have a reasonable suspicion that Mr. Gallegos w as involved in criminal activity. In determining whether the officers' act ions were reasonable under the Fourth Amendment, we employ a de novo review. United States v. King , 990 F.2d 1552, 1556 (10th Cir. 1993). However, we must acce pt the district court's findings of fact unless they are clearly erroneous. See Ornelas v. United States , 116 S. Ct. 1657, 1663 (1996).

The Fourth Amendment protects "[t]he right of the p eople to be secure ... against unreasonable searches and seizures." 3 U.S. Const. amend. IV. The purpose of this amendment is "to safeguard the priv acy and security of individuals against arbitrary invasions by governmental officia ls." Camara v. Municipal
Court , 387 U.S. 523, 528 (1967). "Of course, not all po lice-citizen encounters implicate the Fourth Amendment." King , 990 F.2d at 1556. Mere police questioning does not amount to a seizure and "'law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place.'" Id. at 1556 (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). Generally, a person is not "seiz ed" for purposes of the Fourth Amendment unless, "considering all the surrounding circumstances, the police-9-

conduct 'would have communicated to a reasonable pe rson that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" King , 990 F.2d at 1556 (quoting Bostick, 501 U.S. at 439).

Where a police-citizen encounter rises to the level of a seizure within the meaning of the Fourth Amendment, such seizure must be reasonable to be valid. United States v. Sharpe , 470 U.S. 675, 682 (1985) (Fourth Amendment prohib its unreasonable seizures). Formal arrests or seizures that resemble formal arrests must be supported by probable cause to be reasonabl e. United States v. Perdue , 8 F.3d 1455, 1461 (10th Cir. 1993). However, mere investigatory detentions of persons may require less than probable cause to be reasonable. In United States v. Terry , 392 U.S. 1, 21 (1968), the Supreme Court held pol ice officers can temporarily detain an individual suspected of crimi nal activity if the officer can point to "specific and articulable facts which, tak en together with rational inferences from those facts, reasonably warrant that intrusion." Terrystops "constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement i nterests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity." Michigan v. Summers , 452 U.S. 692, 699 (1981).-10-

We must conduct a two-step inquiry to determine whe ther an investigative detention is reasonable under the Fourth Amendment. King , 990 F.2d at 1557. First, we must ascertain whether the detention was "'justified at its inception.'" Id. (quoting Terry , 392 U.S. at 20.) For a detention to be valid, th e officer must have an articulable suspicion that a detainee has c ommitted or is about to commit a crime. Florida v. Royer , 460 U.S. 491, 498 (1983). Neither "inarticulate hunches" nor "unparticularized suspicion" will suff ice to justify an investigatory detention. See Terry , 392 U.S. at 22, 27. However, in determining the reasonableness of an investigative detention, "'com mon sense and ordinary human experience must govern over rigid criteria.'" United States v. Walraven , 892 F.2d 972, 975 (10th Cir. 1989) (quoting United States v. Sharpe , 470 U.S. 675, 685 (1985)). The Fourth Amendment "'does not require p olice officers to close their eyes to suspicious circumstances.'" Id. at 976 (quoting United States v. Espinosa , 782 F.2d 888, 891 (10th Cir. 1986)).

The second step in determining the reasonableness o f an investigative detention consists of determining whether the offic ers' actions are "'reasonably related in scope to the circumstances which justifi ed the interference in the first place.'" King , 990 F.2d at 1557 (quoting Terry , 392 U.S. at 20).-11-

In Perdue , we stated: Terrystops must be limited in scope to the justificatio n for the stop. Officers may ask the detained individual questions during the Terry stop in order to dispel or confirm their suspicions , "[b]ut the detainee is not obliged to respond." Since police officers should not be required to take unnecessary risks in performing th eir duties, they are "authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the s tatus quo during the course of [a Terry ] stop." An encounter between police and an individual which goes beyond the limits of a Terrystop, however, may be constitutionally justified only by probable cause or consent. 8 F.3d at 1462 (citations omitted). With these leg al principles in mind, we now turn to the facts of the present case.

After thoroughly reviewing the record, we conclude, as did the trial court, the initial stop of Mr. Gallegos was a Terry investigative detention thus implicating the Fourth Amendment. To determine if this detention was reasonable, we must apply the aforementioned two-pa rt test. First, we must decide whether, at the time of the stop, Sergeant L ofgren and Officer Santos had an articulable suspicion that Mr. Gallegos had comm itted or was about to commit a crime. The record reveals Sergeant Lofgren and O fficer Santos were sent to William Avenue on May 20, 1992 after receiving two dispatches of suspicious activity occurring in the neighborhood. The first dispatch was a "prowler" report from a resident who had seen two people running on William Avenue and heard a noise like someone was "messing with the fence." T he second dispatch was a-12-

report from another resident who observed a man in a white T-shirt, who appeared to be drunk, arguing with a woman.

When the officers arrived at William Avenue at 1:15 in the morning, less than seven minutes after receiving the first dispat ch, they observed Mr. Gallegos on the sidewalk acting in a very unusual fashion. Mr. Gallegos, who was wearing a gray tank top, was crying and talking loudly to h imself. He had both of his hands over his face and he smelled of alcohol. Whe n Sergeant Lofgren inquired as to what was going on, Mr. Gallegos did not respo nd. He appeared distraught.

Based on the totality of the circumstances, includi ng the time of night, Mr. Gallegos' conduct, the odor of alcohol, and the two dispatch reports, we conclude the officers possessed a reasonable suspicion that Mr. Gallegos was involved in criminal activity. Thus, the officers acted reason ably in attempting to detain Mr. Gallegos. This was not a case of police officers a rbitrarily stopping an individual walking down the sidewalk during the middle of the afternoon. Rather, Sergeant Lofgren and Officer Santos were aware of articulabl e and specific facts that justified their attempts to detain Mr. Gallegos. W e believe the officers would have been derelict in their duties if they had simp ly ignored Mr. Gallegos and4We also believe the initial stop of Mr. Gallegos was justified as a valid

noninvestigatory stop. In King , we stated: police officers are ... expected ... to exercise wh at the Supreme Court has termed "community caretaking functions, totally divorced from the detection, investigation, or acquisition of evi dence relating to the violation of a criminal statute." In the course of exercising this noninvestigatory function, a police officer may hav e occasion to seize a person, as the Supreme Court has defined th e term for Fourth Amendment purposes, in order to ensure the safety o f the public and/or the individual, regardless of any suspected criminal activity.... The fact that the officer may not suspect the indiv idual of criminal activity does not render such a seizure unreasonabl e per se as Terry only requires "specific and articulable facts which ... reasonably warrant [an] intrusion" into the individual's liberty. 990 F.2d at 1560 (citations omitted). In the case at bar, Sergeant Lofgren and Officer Sa ntos observed a distraught Mr. Gallegos on a public sidewalk in the middle of the night. Not only did he smell of alcohol, but he was crying and walk ing down the street with his hands over his face. In light of these facts, we b elieve the officers were justified in stopping Mr. Gallegos to check on his welfare. Thus, the initial stop of Mr. Gallegos was valid under both an investigatory and noninvestigatory rationale. -13- allowed him to proceed. Accordingly, we conclude t he attempted detention of Mr. Gallegos was justified at its inception. 4 Next, we must determine whether the Terry stop was limited in scope to the justification for the stop. In reviewing the reaso nableness of the scope of the stop, we focus here on the actions of Sergeant Lofg ren and Officer Santos occurring prior to the arm bar maneuver applied by Officer Santos. In section III.B., infra , in the context of determining whether Mr. Gallego s was arrested, we-14-

will review the reasonableness under the Fourth Ame ndment of the arm bar maneuver and all actions occurring subsequent there to.

Sergeant Lofgren and Officer Santos sought to detai n Mr. Gallegos to determine whether he was the prowler a resident had reported to be messing with a fence and/or the man another resident had reporte d as being drunk and yelling at a woman. To make this determination, Sergeant Lofg ren initially asked Mr. Gallegos what was going on. When Mr. Gallegos did not respond to Sergeant Lofgren's question, Sergeant Lofgren grabbed Mr. Ga llegos' left arm. Mr. Gallegos jerked away and continued walking down the sidewalk. Thereafter, Sergeant Lofgren grabbed Mr. Gallegos' arm on two m ore occasions in an effort to detain him. However, each time, Mr. Gallegos je rked away from the officer's
grasp.

We believe Sergeant Lofgren's actions were reasonab ly related in scope to the circumstances justifying the stop. Sergeant Lo fgren grabbed Mr. Gallegos' arm in an effort to briefly detain Mr. Gallegos and confirm or dispel his suspicions. Although Sergeant Lofgren grabbed Mr. Gallegos' arm three separate times, his actions consisted of a relatively minor application of force that did not exceed the amount allowable under the circumstances . If anything, Sergeant5 Mr. Gallegos also contends the trial court did no t apply the correct legal

standard for determining the reasonableness of a se izure under the Fourth Amendment. Mr. Gallegos appears to argue the trial court improperly determined the stop was reasonable because the officers were m erely suspicious of Mr. Gallegos' behavior. Having conducted a de novo review of this contention, see King , 990 F.2d at 1556, we believe a fair reading of th e trial court's summary judgment order indicates the trial court employed t he correct legal standard and properly determined the stop of Mr. Gallegos was supported by a reasonable suspicion that "criminal activity was afoot." See Terry , 392 U.S. at 30. In any event, our determination that the stop of Mr. Galle gos was supported by a reasonable suspicion that Mr. Gallegos was engaged in criminal activity renders irrelevant Mr. Gallegos' challenge to the legal sta ndard employed by the trial court. -15- Lofgren did not exercise enough force to accomplish the purpose of the detention. Each time he grabbed Mr. Gallegos' arm, Mr. Gallego s broke free. Moreover, we do not believe the detention of Mr. Gallegos was a significant restraint on his liberty. From the time the officers arrived at Wil liam Avenue to the time Mr. Gallegos' assumed the crouched wrestling position, less than two minutes elapsed. Thus, we conclude the stop of Mr. Gallegos was a va lid Terrystop that did not exceed the scope of its justification. 5

B. Did the Seizure of Mr. Gallegos Escalate into a n Arrest that Was Not Supported by Probable Cause? Mr. Gallegos contends the officers' actions in taki ng Mr. Gallegos down in the street constituted an arrest. According to Mr. Gallegos, the officers lacked-16-

probable cause to arrest him and, therefore, they v iolated his Fourth Amendment right to be free from unreasonable seizures.

It is well settled that a police-citizen encounter which goes beyond the limits of a Terrystop is an arrest that must be supported by probab le cause or consent to be valid. Perdue , 8 F.3d at 1462. However, a Terrystop does not automatically elevate into an arrest where police o fficers use handcuffs on a suspect or place him on the ground. Id. at 1463. Police officers are "'authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of [a Terry ] stop.'" Id. at 1462 (quoting United States v. Hensley , 469 U.S. 221, 235 (1985)). At least nine courts of appeals, including this circuit, have det ermined the use of "intrusive precautionary measures" (such as handcuffs or placi ng a suspect on the ground) during a Terrystop do not necessarily turn a lawful Terrystop into an arrest under the Fourth Amendment. Id. at 1463 (setting forth list of circuit authority). The hallmark of the Fourth Amendment is reasonablen ess. As long as the precautionary measures employed by officers during a Terrystop are reasonable, they will be permitted without a showing of probabl e cause. See id. In determining whether the precautionary measures were reasonable, the standard is objective -- "'would the facts available to the off icer at the moment of the seizure-17-

... "warrant a man of reasonable caution in the bel ief" that the action taken was appropriate.'" United States v. McRae , 81 F.3d 1528, 1536 (10th Cir. 1996) (quoting Terry , 392 U.S. at 21-22).

In the present case, we must determine whether the Terrystop escalated into an arrest following the application of the arm bar maneuver by Officer Santos. The district court concluded the take-down of Mr. Gallegos was justified by a "reasonably perceived threat to officer safety ." The court did not find Mr. Gallegos was subjected to an arrest under the Fourt h Amendment. We agree.

The record reveals that following Sergeant Lofgren' s third attempt to grab Mr. Gallegos' arm, Mr. Gallegos' demeanor and body position changed drastically. Previously, Mr. Gallegos had been intent on walking down the sidewalk with his hands covering his face. In a matter of seconds, h owever, Mr. Gallegos removed his hands from his face, pivoted toward the officer s, and crouched into a wrestler's position. Mr. Gallegos was yelling and he appeared very angry. He smelled as if he had been drinking.

Based on these objective facts, we believe Officer Santos reasonably believed her safety was in danger. To gain control of the situation before her or6Although the middle of the street was not the mos t prudent location to

bring the defendant to the ground, we do not believ e the location renders the action unreasonable. "The calculus of reasonablene ss must embody allowance for the fact that police officers are often forced to m ake split-second judgments -- in circumstances that are tense, uncertain, and rapidl y evolving." Graham v. -18- her partner was harmed, she made a split second dec ision to apply an arm bar maneuver to Mr. Gallegos. We cannot say this decis ion was unreasonable under the Fourth Amendment. Nor can we say Officer Lofgr en's decision to initiate a take-down was unreasonable. Having witnessed Mr. G allegos' strange and aggressive conduct, he now observed his partner, a police officer in field training, trying to gain control of a man who weighed 200 pou nds or more. We believe Sergeant Lofgren harbored an objectively reasonable belief there was a serious risk Mr. Gallegos would strike Officer Santos with his free arm. Based on this belief, Sergeant Lofgren used a reasonable amount o f force to bring Mr. Gallegos face-down on the pavement.

Only seconds after Sergeant Lofgren initiated the t ake-down procedure, Mr. Gallegos and Officer Santos unfortunately were stru ck by the hit-and-run driver. Nevertheless, we find, as did the trial court, thatat the time Mr. Gallegos was injured, the actions taken by Sergeant Lofgren and Officer Santos were merely those "reasonably necessary to protect their person al safety and to maintain the status quo during the course of [a Terry ] stop." 6 See Perdue , 8 F.3d at 1462Connor , 490 U.S. 386, 396-97 (1989). Here, Mr. Gallegos entered the center of

the road on his own volition. While in the road, h e clinched his fists and faced the officers in a crouched position. In light of h is increasing aggressiveness, the officers made an instant decision to gain control o ver him before the situation could escalate. In light of the totality of the ci rcumstances, we find the officers' decision to be reasonable. It would make no sense for this court to require the police to wait for a suspect to leave the street be fore exercising force against the suspect. Such a rule would place the welfare of pe ace officers at an even higher risk of danger than they are already subject to on a daily basis.

7We note the fact Sergeant Lofgren intended to arr est Mr. Gallegos after he was taken down on the pavement did not turn the Terrystop into an arrest. Although an officer's subjective intent is a factorthat may be considered in determining whether a stop has escalated into an ar rest, see United States v. Serna-Barreto , 842 F.2d 965, 967 (7th Cir. 1988); United States v. Morin , 665 F.2d 765, 769 (5th Cir. 1982); United States v. White , 648 F.2d 29, 34 (D.C. Cir.), cert. denied, 454 U.S. 924 (1981), subjective intent is not det erminative. SernaBarreto , 842 F.2d at 968. In fact, some circuits appear t o give little or no weight to an officer's subjective intent. See United States v. Jackson , 652 F.2d 244, 250 (2d Cir.), cert. denied, 454 U.S. 1057 (1981) (objective factors rather th an subjective factors govern propriety of stops and ar rests; officer's subjective belief that his partner had placed suspect under arrest in sufficient to convert Terrystop into arrest); United States v. Beck, 598 F.2d 497, 500 (9th Cir. 1979) (whether arrest has occurred depends on evaluation of all su rrounding circumstances, not the subjective intent of officers involved). Here, based on the totality of the circumstances, we conclude the detention of Mr. Gal legos was a valid Terrystop that did not escalate into an arrest.

8Because we find the arm bar maneuver and subseque nt take-down of Mr. Gallegos was based on a reasonable perceived threatto the officer's safety, we conclude these procedures satisfy the second prong of the Terryinquiry, see supra , p.19, and were reasonable under the Fourth Amendm ent. -19- (quoting Hensley , 469 U.S. at 235.) Thus, we conclude no arrest ha d taken place at the time Mr. Gallegos was hit by the car. 7Because Mr. Gallegos was not arrested, the officers did not need probable cause to justify their actions. 8-20-

C. Are Sergeant Lofgren and Officer Santos Entitle d to Qualified Immunity for their Actions? Because we have determined Mr. Gallegos was not dep rived of his rights under the Fourth and Fourteenth Amendments, we neednot address the issue of qualified immunity.

IV. CONCLUSION Based on the foregoing reasons, we hereby AFFIRM the decision of the district court.