Jose VASQUEZ, Plaintiff-Appellant, v. Fred KLIE, Defendant-Appellee, 513 F. App'x 85

SUMMARY ORDER Appellant Jose Vasquez, proceeding pro se, appeals from the district court’s grant of

summary judgment dismissing his complaint, brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that defendant Fred Klie, a Passaic County detective, used excessive force during an arrest in violation of his Fourth Amendment rights. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. We review a district court’s grant of

summary judgment de novo, and

summary judgment is appropriate if there was no genuine dispute as to any material fact and the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). At this stage, we “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom

summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted).

Summary judgment is appropriate “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The district court granted

summary judgment for defendant on the theory that he was entitled to qualified immunity. In analyzing whether a defendant is entitled to qualified immunity, this Court conducts a two-part inquiry, exercising flexibility in deciding which question to address first. DiStiso v. Cook, 691 F.3d 226, 240 (2d Cir.2012). We ask whether the plaintiff has adduced facts sufficient to “make out a violation of a constitutional right” and whether “the right at issue was clearly established at the time of defendant’s alleged misconduct.” Taravella v.

Town of Wolcott, 599 F.3d 129, 133 (2d Cir.2010) (internal quotation marks omitted). Whether a right has been clearly established is judged from the standpoint of a reasonable law-enforcement officer. Id. Even if the law is “clearly established” at the time, qualified immunity is also appropriate “if it was objectively reasonable” for the officer “at the time of the challenged action to believe his acts were lawful.” Id. at 134 (internal quotation marks omitted). The district court did not err in determining that defendant was entitled to

summary judgment. Relying on plaintiffs version of the facts and drawing all reasonable inferences therefrom, it was objectively reasonable for defendant Klie to use additional force under the circumstances. At night, in an ongoing potentially violent situation involving an unsecured firearm, where Klie’s view of the additional arrestee was obscured, we cannot say the district court erred in concluding that “officers of reasonable competence could disagree” about whether Klie’s actions were justified. Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995) (internal quotation marks omitted).

Because we conclude that the district court did not err in deciding that Klie was entitled to qualified immunity, we need not determine whether Vasquez adduced sufficient facts to make out a constitutional violation. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.