Loc: Somewhere on the planet,I hope
The 9th Circuit Appeals Court just came down with a decision that involved WDF&W Enforcement staff. The decision is a shocker to read in particular the conduct of the officers. It is 27 pages long so a full C&P is out but I will try to grab a couple of pages. If you want the document please simply PM me. So here goes .......
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 11-35837 D.C. No. 3:10-cv-05197- BHS
Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding
2 TARABOCIDA V. ADKINS Argued and Submitted April 7, 2014-Seattle, Washington Filed September 9, 2014 Before: Michael Daly Hawkins, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges.
Opinion by Judge Hawkins
The panel reversed in part and affirmed in part the district court's summary judgment and remanded in an action brought by four commercial fishers who alleged that officers from the Washington Department of Fish and Wildlife illegally stopped and searched their automobile on March 23, 2007, and harassed them throughout the years because of a personal vendetta.
The panel held that it was clearly established on the date of the automobile stop that plaintiffs had a Fourth Amendment right not to be stopped by Fish and Wildlife officers while driving on a highway absent reasonable suspicion they had engaged or were about to engage in unlawful activity. The panel held that the stop, which lacked any basis in suspicion of unlawful behavior or statutory
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
TARABOCIBA V. ADKINS
3.authority that would render it permissible under the administrative search exception, violated plaintiffs' clearly established Fourth Amendment rights. The panel therefore held that officers Michael Cenci and Dan Chadwick were not entitled to qualified immunity on plaintiffs' Fourth Amendment claim.
The panel affirmed the dismissal of plaintiffs' Fourteenth Amendment substantive due process claim on the grounds that the district court correctly deemed this claim untimely.
TARABOCHIA V. ADKINS 5 Taking the facts, as we must, in the light most favorable to the nonmoving party, Grave/et-Blondin v. Shelton, 728 F.3d 1086, 1090 (9th Cir. 2013), from 2000 until the date of the stop at issue, Captain Cenci and other WDFW officers have, among other things: followed the Tarabochias in their automobile on multiple occasions; detained Joseph and Matthew, including Joseph on one occasion for an hour and a half only to let him leave without citation; confronted the Tarabochias aboard their fishing vessel with a knife in hand and accompanied by at least six other WDFW officers; intentionally swerved into their automobile while both cars were driving on a public road; followed Alex and Bryan to school on an almost daily basis; verbally threatened to "get" Joseph and Alex on unspecified charges; and charged the Tarabochias with at least twenty-seven "criminal counts, in at least [eleven] court cases, in four [different]jurisdictions," many of which charges were dismissed prior to trial, none resulting in conviction. After a March 2006 incident, which resulted in charges that were later dropped, WDFW officers started spreading unfounded rumors that Joseph posed a risk to officer safety.
Given this history, the Tarabochias became fearful of WDFW officers, and in 2006 Joseph requested a meeting with the local prosecutor and the director of the WDFW to address the family's concerns. According to the prosecutor, when Captain Cenci and another WDFW officer arrived at the meeting, Cenci immediately tried to frisk Joseph despite what the prosecutor considered a lack of any evidence that he posed a threat. Finding Cenci 's behavior "outrageous," the prosecutor prevented Cenci from carrying out the frisk, and the officers left the meeting.
On the morning of March 23, 2007, the Tarabochias were driving in their pickup truck, which was loaded with a tote containing recently caught salmon, along a state highway and a public road when WDFW Sergeant Dan Chadwick and Captain Cenci stopped them.3 Approximately a half an hour beforehand, Captain Cenci had observed the Tarabochias from afar while he conducted a field inspection in an area of the lower Columbia River where commercial fishers regularly tie up their boats and unload recently caught fish. A portion of this area is near the Tarabochias' home.
Sometime that morning, a newspaper reporter accompanying Captain Cenci as a ride along passenger notified Cenci that he had observed the Tarabochias load salmon into the tote on the back of their pickup truck. Cenci called Sergeant Chadwick, who was also in the general area and relayed this information. Although the officers suspected the Tarabochias had salmon on their truck, it is undisputed that they had no reason to believe these salmon had been taken in violation of applicable fish and game laws.
The officers decided not to inspect the fish at the dock, but instead decided to pull the Tarabochias' truck over once on the highway' to check for compliance with fish and game laws. All four Tarabochias left the area of the field inspection in their pickup truck loaded with the tote of salmon. Sergeant
3 The facts indicate that the WDFW officers began to follow the Tarabochias on the highway and then followed them onto a public road. Because we find this distinction irrelevant to our constitutional inquiry, we refer to the place of the stop and search as a "highway."
4 The officers assert they did so because of safety concerns based on an earlier encounter Captain Cenci had with Joseph two days beforehand.
TARABOCHTA V. ADKINS 7
Chadwick, who had been parked along a state highway, saw the truck pass by him. At that time, he began to follow the Tarabochias and, after the Tarabochias had exited off the highway onto a public road, he activated his emergency lights to effectuate the stop. The Tarabochias initially failed to stop, but Captain Cenci, who had been following behind Sergeant Chadwick, pulled his automobile in front of the Tarabochias, and caused them to stop. Officers Brett Hopkins and Brad Rhoden soon arrived on the scene to lend assistance.5
The Tarabochias refused to exit the automobile or open the doors until sheriff's deputies arrived because of their past experience with the WDFW officers. Once someone the Tarabochias recognized as a member of the Wahkiakum County Sheriff's Office arrived (about twelve minutes later), the Tarabochias opened the car doors, and the WDFW officers arrested Matthew and Joseph. The officers proceeded to inspect the salmon in the tote, which inspection failed to reveal any fish and game violations.
Joseph and Matthew were booked, cited for, among other things, "avoiding a wildlife field inspection," and released. A Washington state district court for the County of Wahkiakum later dismissed all charges, finding the stop, search, and arrests unlawful since the officers had acted contrary to state law and to the Washington state constitution
5 Because the complaint does not allege and the record does not indicate that Officers Hopkins or Rhoden took part in the decision to stop and search the Tarabochias' automobile or that they participated in the alleged "vendetta," even construing the facts in the light most favorable to the Tarabochias, there is insufficient basis to hold either of them liable under 42 U.S.C. § 1983. The district court is therefore instructed to dismiss the complaint against them with prejudice.
in stopping and searching the Tarabochias' automobile. On appeal, the superior court upheld this decision, although without reaching the constitutional issue, and reaffirmed that at the time Captain Cenci ordered the stop of the Tarabochias' automobile, he did not have "any reason to believe" the Tarabochias' truck contained "evidence of a violation of law or rules[.]"
The Tarabochias filed their pro se federal district court complaint pursuant to 42 U.S.C. § 1983 in March 2010, alleging that WDFW officers Dan Chadwick, Brett Hopkins, Brad Rhoden, and Mike Cenci violated their Fourth and Fourteenth Amendment rights by stopping and searching their automobile on March 23, 2007, and harassing them throughout the years.6 The district court initially granted summary judgment to the officers on the Tarabochias' Fourth Amendment claim, but denied them summary judgment on the Tarabochias' Fourteenth Amendment substantive due process claim. Relying on a California state court decision, the district court held that qualified immunity precluded the Tarabochias' Fourth Amendment search and seizure claim since "the law regarding warrantless stops by WDFW officers was not clearly established" at the time of the stop.
In September 2011, the court granted the Defendants' second motion for summary judgment and dismissed the case, holding that the § 1983 statute of limitations barred the Tarabochias' Fourteenth Amendment substantive due process claim. This appeal followed.
Dazed and confused.............the fog is closing in