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 Cornish & 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.
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BRORBY, Circuit Judge.

Appellant Jose Gallegos filed this civil rights action in federal court against

the city of Colorado Springs and Colorado Springs police officers Magdalena

Santos and Daniel Lofgren. Mr. Gallegos alleged Officer 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, concluding the Colorado Springs

police officers did not unreasonably seize Mr. Gallegos. Mr. Gallegos appeals the

district court's judgment and we exercise jurisdiction pursuant to 28 U.S.C.

§ 1291.

I. FACTUAL AND PROCEDURAL BACKGROUND

At approximately 1:08 a.m. on May 20, 1992, Officer Santos and Sergeant

Lofgren received a dispatch in their police cruiser concerning a reported prowler

in the area of the intersection of William Avenue and East Cheyenne Road. The

dispatcher informed the officers a resident had heard 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 area of the alleged disturbance,
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Sergeant Lofgren and Officer Santos received a second 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 north on the east sidewalk of

William Avenue. Sergeant Lofgren and Officer Santos 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 really loudly or shouting." 

Both of his hands were over his face and he appeared unsteady on his feet.

Sergeant Lofgren approached Mr. Gallegos in an effort 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. However, when Sergeant Lofgren

asked Mr. Gallegos what was going on, Mr. Gallegos ignored the sergeant's

question. Sergeant Lofgren then grasped Mr. Gallegos' 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 response, Mr. Gallegos jerked
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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 stop, probable cause existed to

arrest Mr. Gallegos for interference with a police officer, in violation of the

ordinances of Colorado Springs. Sergeant Lofgren thus 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 shouting unrecognizable words. 

The officers followed Mr. Gallegos into the road and 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 position.

Officer Lofgren reacted to Mr. Gallegos' crouched position by taking a step

back from Mr. Gallegos. However, Officer Santos, fearing for her safety, stepped

toward Mr. Gallegos and applied an arm bar maneuver to Mr. Gallegos' right
1

 The arm bar maneuver consisted of Officer Santos grabbing Mr. Gallegos'

right wrist with her right hand while placing her left hand close to Mr. Gallegos'

shoulder.

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arm.1 Upon observing this procedure, Sergeant Lofgren grasped 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 resistance by Mr. Gallegos, the

officers placed Mr. Gallegos face down on the pavement. 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 approximately ten feet. After

Officer Santos regained her balance, she approached the vehicle and pounded on

the passenger window with her flashlight. The vehicle then backed over Mr.

Gallegos and drove away. From the time Sergeant Lofgren and Officer Santos

arrived at William Avenue to the time the vehicle ran over Mr. Gallegos, only one

minute and forty-four seconds elapsed.

Mr. Gallegos sustained serious injuries as a result of being run over by the

unidentified vehicle on May 20, 1992. Mr. Gallegos filed suit in federal court
2

 Mr. Gallegos conceded his municipal liability claim against the City of

Colorado Springs should be dismissed. Accordingly, the district court dismissed

this claim in its summary judgment order.

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against Sergeant Lofgren, Officer Santos, the City of Colorado Springs, and John

Doe, a hit-and-run driver, seeking to recover compensatory 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 suspicion and 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 Santos was supported by

reasonable suspicion.2 However, the court determined there was a genuine issue

of material fact concerning whether Mr. Gallegos was seized without probable

cause and whether Sergeant Lofgren and Officer Santos 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 were not violated because the

seizure of Mr. Gallegos was justified by a "reasonabl[e] perceived threat to

officer safety." Furthermore, to the extent Mr. Gallegos was subjected to an
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arrest, the court concluded Sergeant Lofgren and Officer 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) whether Sergeant Lofgren

and Officer Santos violated Mr. Gallegos' Fourth and Fourteenth Amendment

rights by seizing him without reasonable suspicion; (2) whether the seizure of Mr.

Gallegos escalated into an arrest that was not supported by probable cause, thus

violating Mr. Gallegos' Fourth and Fourteenth Amendment rights; and (3) if the

officers seized Mr. Gallegos in violation of his Fourth and Fourteenth

Amendment rights, whether they were entitled to qualified 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. Gallegos contests this

determination on appeal. Mr. Gallegos contends the record establishes his Fourth

Amendment rights were violated because Sergeant Lofgren and Officer Santos did
3

 The Fourth Amendment is applicable to the states through the Fourteenth

Amendment. Payton v. New York, 445 U.S. 573, 576 (1980).

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not have a reasonable suspicion that Mr. Gallegos was involved in criminal

activity. In determining whether the officers' actions 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 accept 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 people to be secure ...

against unreasonable searches and seizures."3 U.S. Const. amend. IV. The

purpose of this amendment is "to safeguard the privacy and security of individuals

against arbitrary invasions by governmental officials." Camara v. Municipal

Court, 387 U.S. 523, 528 (1967). "Of course, not all police-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 "seized" for purposes of the Fourth

Amendment unless, "considering all the surrounding circumstances, the police
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conduct 'would have communicated to a reasonable person 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 prohibits

unreasonable seizures). Formal arrests or seizures that resemble formal arrests

must be supported by probable cause to be reasonable. 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 police officers can

temporarily detain an individual suspected of criminal activity if the officer can

point to "specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion." Terry stops

"constitute such limited intrusions on the personal security of those detained and

are justified by such substantial law enforcement interests 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).
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We must conduct a two-step inquiry to determine whether 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, the officer must

have an articulable suspicion that a detainee has committed or is about to commit

a crime. Florida v. Royer, 460 U.S. 491, 498 (1983). Neither "inarticulate

hunches" nor "unparticularized suspicion" will suffice to justify an investigatory

detention. See Terry, 392 U.S. at 22, 27. However, in determining the

reasonableness of an investigative detention, "'common 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 police 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 of an investigative

detention consists of determining whether the officers' actions are "'reasonably

related in scope to the circumstances which justified the interference in the first

place.'" King, 990 F.2d at 1557 (quoting Terry, 392 U.S. at 20).
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In Perdue, we stated:

Terry stops must be limited in scope to the justification 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 their duties, they 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." An encounter between police and an

individual which goes beyond the limits of a Terry stop, however,

may be constitutionally justified only by probable cause or consent.

8 F.3d at 1462 (citations omitted). With these legal 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-part test. First, we must

decide whether, at the time of the stop, Sergeant Lofgren and Officer Santos had

an articulable suspicion that Mr. Gallegos had committed or was about to commit

a crime. The record reveals Sergeant Lofgren and Officer 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." The second dispatch was a
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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 dispatch, 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 himself. He had both of his

hands over his face and he smelled of alcohol. When Sergeant Lofgren inquired

as to what was going on, Mr. Gallegos did not respond. He appeared distraught.

Based on the totality of the circumstances, including 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 reasonably in attempting to detain Mr.

Gallegos. This was not a case of police officers arbitrarily stopping an individual

walking down the sidewalk during the middle of the afternoon. Rather, Sergeant

Lofgren and Officer Santos were aware of articulable and specific facts that

justified their attempts to detain Mr. Gallegos. We believe the officers would

have been derelict in their duties if they had simply ignored Mr. Gallegos and
4

 We 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 what the Supreme Court

has termed "community caretaking functions, totally divorced from

the detection, investigation, or acquisition of evidence relating to the

violation of a criminal statute." In the course of exercising this

noninvestigatory function, a police officer may have occasion to

seize a person, as the Supreme Court has defined the term for Fourth

Amendment purposes, in order to ensure the safety of the public

and/or the individual, regardless of any suspected criminal activity.... 

The fact that the officer may not suspect the individual of criminal

activity does not render such a seizure unreasonable 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 Santos 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 walking down the street with his

hands over his face. In light of these facts, we believe 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.

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allowed him to proceed. Accordingly, we conclude the 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 reasonableness of the scope of the

stop, we focus here on the actions of Sergeant Lofgren 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. Gallegos was arrested, we
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will review the reasonableness under the Fourth Amendment of the arm bar

maneuver and all actions occurring subsequent thereto.

Sergeant Lofgren and Officer Santos sought to detain 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 reported as being drunk and yelling at

a woman. To make this determination, Sergeant Lofgren initially asked Mr.

Gallegos what was going on. When Mr. Gallegos did not respond to Sergeant

Lofgren's question, Sergeant Lofgren grabbed Mr. Gallegos' left arm. Mr.

Gallegos jerked away and continued walking down the sidewalk. Thereafter,

Sergeant Lofgren grabbed Mr. Gallegos' arm on two more occasions in an effort

to detain him. However, each time, Mr. Gallegos jerked away from the officer's

grasp.

We believe Sergeant Lofgren's actions were reasonably related in scope to

the circumstances justifying the stop. Sergeant Lofgren 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, Sergeant
5

 Mr. Gallegos also contends the trial court did not apply the correct legal

standard for determining the reasonableness of a seizure under the Fourth

Amendment. Mr. Gallegos appears to argue the trial court improperly determined

the stop was reasonable because the officers were merely 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 the trial court's summary

judgment order indicates the trial court employed the 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. Gallegos was supported by a

reasonable suspicion that Mr. Gallegos was engaged in criminal activity renders

irrelevant Mr. Gallegos' challenge to the legal standard employed by the trial

court.

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Lofgren did not exercise enough force to accomplish the purpose of the detention.

Each time he grabbed Mr. Gallegos' arm, Mr. Gallegos 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 William 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 valid Terry stop that did not

exceed the scope of its justification.5

B. Did the Seizure of Mr. Gallegos Escalate into an Arrest that

Was Not Supported by Probable Cause?

Mr. Gallegos contends the officers' actions in taking Mr. Gallegos down in

the street constituted an arrest. According to Mr. Gallegos, the officers lacked
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probable cause to arrest him and, therefore, they violated 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 Terry stop is an arrest that must be supported by probable cause or

consent to be valid. Perdue, 8 F.3d at 1462. However, a Terry stop does not

automatically elevate into an arrest where police officers 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 determined the use of "intrusive

precautionary measures" (such as handcuffs or placing a suspect on the ground)

during a Terry stop do not necessarily turn a lawful Terry stop into an arrest

under the Fourth Amendment. Id. at 1463 (setting forth list of circuit authority).

The hallmark of the Fourth Amendment is reasonableness. As long as the

precautionary measures employed by officers during a Terry stop are reasonable,

they will be permitted without a showing of probable cause. See id. In

determining whether the precautionary measures were reasonable, the standard is

objective -- "'would the facts available to the officer at the moment of the seizure
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... "warrant a man of reasonable caution in the belief" 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 Terry stop 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 Fourth 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, however, Mr. Gallegos removed

his hands from his face, pivoted toward the officers, 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 or
6

 Although the middle of the street was not the most prudent location to

bring the defendant to the ground, we do not believe the location renders the

action unreasonable. "The calculus of reasonableness must embody allowance for

the fact that police officers are often forced to make split-second judgments -- in

circumstances that are tense, uncertain, and rapidly evolving." Graham v.

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her partner was harmed, she made a split second decision to apply an arm bar

maneuver to Mr. Gallegos. We cannot say this decision was unreasonable under

the Fourth Amendment. Nor can we say Officer Lofgren's decision to initiate a

take-down was unreasonable. Having witnessed Mr. Gallegos' 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 pounds 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 of force to bring Mr. Gallegos

face-down on the pavement.

Only seconds after Sergeant Lofgren initiated the take-down procedure, Mr.

Gallegos and Officer Santos unfortunately were struck by the hit-and-run driver. 

Nevertheless, we find, as did the trial court, that at the time Mr. Gallegos was

injured, the actions taken by Sergeant Lofgren and Officer Santos were merely

those "reasonably necessary to protect their personal safety and to maintain the

status quo during the course of [a Terry] stop."6 See Perdue, 8 F.3d at 1462
Connor, 490 U.S. 386, 396-97 (1989). Here, Mr. Gallegos entered the center of

the road on his own volition. While in the road, he clinched his fists and faced

the officers in a crouched position. In light of his increasing aggressiveness, the

officers made an instant decision to gain control over him before the situation

could escalate. In light of the totality of the circumstances, 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 before exercising force against the

suspect. Such a rule would place the welfare of peace officers at an even higher

risk of danger than they are already subject to on a daily basis.

7

 We note the fact Sergeant Lofgren intended to arrest Mr. Gallegos after

he was taken down on the pavement did not turn the Terry stop into an arrest. 

Although an officer's subjective intent is a factor that may be considered in

determining whether a stop has escalated into an arrest, 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 determinative. SernaBarreto, 842 F.2d at 968. In fact, some circuits appear to 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 than

subjective factors govern propriety of stops and arrests; officer's subjective belief

that his partner had placed suspect under arrest insufficient to convert Terry stop

into arrest); United States v. Beck, 598 F.2d 497, 500 (9th Cir. 1979) (whether

arrest has occurred depends on evaluation of all surrounding circumstances, not

the subjective intent of officers involved). Here, based on the totality of the

circumstances, we conclude the detention of Mr. Gallegos was a valid Terry stop

that did not escalate into an arrest.

8

 Because we find the arm bar maneuver and subsequent take-down of Mr.

Gallegos was based on a reasonable perceived threat to the officer's safety, we

conclude these procedures satisfy the second prong of the Terry inquiry, see

supra, p.19, and were reasonable under the Fourth Amendment.

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(quoting Hensley, 469 U.S. at 235.) Thus, we conclude no arrest had taken place

at the time Mr. Gallegos was hit by the car.7

 Because Mr. Gallegos was not

arrested, the officers did not need probable cause to justify their actions.8
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C. Are Sergeant Lofgren and Officer Santos Entitled to Qualified 

Immunity for their Actions?

Because we have determined Mr. Gallegos was not deprived of his rights

under the Fourth and Fourteenth Amendments, we need not address the issue of

qualified immunity.

IV. CONCLUSION

Based on the foregoing reasons, we hereby AFFIRM the decision of the

district court.