Matthew Alexander TARABOCHIA; Alex Daniel Tarabochia v. FBI Special Agent Mickey ADKINS; Sergeant Dan Chadwick, Washington Department of Fish and Wildlife; Officer Brett Hopkins, Washington Department of Fish and Wildlife; Sergeant Brad Rhoden, Washington Department of Fish and Wildlife; Mike Cenci, Capt./Director of Law Enforcement of the Washington Department of Fish and Wildlife
No. 11-35837
United States Court of Appeals, Ninth Circuit
September 9, 2014
Argued and Submitted April 7, 2014.
PETITION FOR REVIEW DISMISSED in part and DENIED in part.
Paul F. James, (argued), Assistant Attorney General and Robert W. Ferguson, Attorney General, Office of the Washington Attorney General, Olympia, WA, for Defendants-Appellees.
Before: MICHAEL DALY HAWKINS, JOHNNIE B. RAWLINSON, and CARLOS T. BEA, Circuit Judges.
OPINION
HAWKINS, Circuit Judge:
We must decide whether a suspicionless roving automobile stop of commercial fishers made while they drive on a public highway to investigate compliance with Washington fish and game laws constitutes an unreasonable search and seizure within the meaning of the Fourth Amendment and, if so, whether this right was clearly established as of the time of the stop at issue in this case. Because we determine that this stop, which lacked any basis in suspicion of unlawful behavior or statutory authority that would render it permissible under the administrative search exception, violated Appellants’ clearly established Fourth Amendment rights, we reverse the district court‘s grant of qualified immunity on Appellants’ Fourth Amendment claim and remand. We affirm the dismissal of Appellants’ Fourteenth Amendment substantive due process claim because the district court correctly deemed this claim untimely.
I. BACKGROUND
The facts underlying this case stretch back to the year 2000 and culminate in an automobile stop on March 23, 2007. Appellants Matthew and Alex Tarabochia,1 along with their brother, Bryan, are the sons of Joseph Tarabochia,2 a longtime commercial fisher. The Tarabochias allege that beginning sometime in 2000, Captain Michael Cenci and other Washington Department of Fish and Wildlife (“WDFW“) officers began a “personal vendetta” against them. The WDFW officers insist they were engaged in proper law enforcement activities against fishing scofflaws. The district court was able to resolve these facts in the officers’ favor. We are not.
Taking the facts, as we must, in the light most favorable to the nonmoving party, Gravelet-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;
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 highway4 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 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
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 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
In September 2011, the court granted the Defendants’ second motion for summary judgment and dismissed the case, holding that the
II. STANDARD OF REVIEW
We review de novo the district court‘s grant of summary judgment based on qualified immunity and statute of limitations grounds. Hooper v. Lockheed Martin Corp., 688 F.3d 1037, 1045 (9th Cir.2012) (statute of limitations); Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir.2007) (qualified immunity). “In determining whether genuine issues of material fact remain, we are required to view all
III. DISCUSSION
A. Fourth Amendment Claim
We begin with the grant of summary judgment to Defendants on the Tarabochias’ Fourth Amendment search and seizure claim based on qualified immunity. “Qualified immunity protects government officials from civil damages ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Chappell v. Mandeville, 706 F.3d 1052, 1056 (9th Cir.2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). This doctrine provides an immunity from suit rather than a defense to liability, Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), and ensures that “officers are on notice their conduct is unlawful” before being subjected to suit. Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). In this way, the doctrine strikes a balance between “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555 U.S. at 231.
In determining whether officers are entitled to qualified immunity, we consider (1) whether “the facts alleged show the official‘s conduct violated a constitutional right; and (2) if so, whether the right was clearly established” as of the date of the involved events “in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir.2009). We exercise our discretion to consider the constitutional violation prong first. See Pearson, 555 U.S. at 236.
1. Constitutional Violation
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]”
Defendants argue that these Fourth Amendment principles are not applicable to the automobile stop and search in this case because of the Tarabochias’ status as commercial fishers. Because administrative inspections of private property, such as the one purportedly carried out by Defendants here, constitute “searches” under the Fourth Amendment, Donovan v. Dewey, 452 U.S. 594, 598, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981), if they are “unaccompanied by any quantum of individual-
The WDFW officers argue that the stop and search here falls within one of these classes of cases, namely, administrative searches of enterprises engaged in pervasively regulated industries. Because the Tarabochias are commercial fishers who had salmon aboard their moving truck, Defendants argue, they could be stopped by officers on a highway to inspect their documents and demand they display their catch, even absent any suspicion of unlawful behavior. The officers argue they needed only “knowledge” that the Tarabochias had recently engaged in fishing to justify the stop under the Fourth Amendment.7
The administrative search exception is applicable to warrantless searches where the search promotes an important governmental interest, is authorized by statute, and the authorizing statute and its regulatory scheme provide specific limitations on the manner and place of the search so as to limit the possibility of abuse. See United States v. Raub, 637 F.2d 1205, 1209-11 (9th Cir. 1980) (search of fishing vessel held to be within the administrative search exception). Where an inspection is authorized by statute but there are “no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.” Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970).
An industry‘s long history of regulation is also relevant to this inquiry insofar as it limits an individual‘s reasonable expectation of privacy in things or places traditionally subject to search under the industry‘s regulatory scheme. See Donovan, 452 U.S. at 605-06; Raub, 637 F.2d at 1210. It therefore comes as no surprise that the cases in which this exception has been applied involve warrantless searches conducted on the premises or within the milieu of the regulated business or industry. See, e.g., Donovan, 452 U.S. 594 (mines and stone quarries); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (gun retail establishments); Colonnade Catering Corp., 397 U.S. 72 (liquor retail establishments); United States v. Kaiyo Maru No. 53, 699 F.2d 989 (9th Cir.1983) (fishing vessels); Raub, 637 F.2d 1205 (fishing vessels); United States v. Tsuda Maru, 470 F.Supp. 1223 (D.Alaska 1979) (fishing vessels).
The officers rely on two statutory provisions within Washington‘s Fish and Wildlife Enforcement Code as providing authority for the stop and search at issue. The first statute provides that, “[b]ased upon articulable facts that a person is engaged in fishing . . . fish and wildlife officers have the authority to temporarily stop the person and check for valid licenses, tags, permits, stamps, or catch record cards, and to inspect all fish . . . and wildlife in possession as well as the equipment being used to ensure compliance with this title.”
Assuming, arguendo, that one could be “engaged in fishing” while driving on a highway with salmon, given the statute‘s lack of definition and failure explicitly to authorize the stop and search of an automobile, a commercial fisher is unlikely to be aware that this provision could subject him or her to a stop and search while engaging in this conduct. This factor weighs against finding that section
Furthermore, unlike in Kaiyo Maru No. 53, 699 F.2d at 994-97, or Raub, 637 F.2d at 1210, where the relevant statutes and regulations carefully limited warrantless searches to certain areas within fishing vessels found in specific waters and to individuals either actively engaged in fish harvesting or in suspicious activities, there is nothing in section
The only other statute the officers point to provides that “[f]ish and wildlife officers may inspect without warrant at reasonable times and in a reasonable manner the premises, containers, fishing equipment, fish, seaweed, shellfish, and wildlife, and records required by the department of any commercial fisher[.]”
Even if section
Whether considered in combination or in isolation, these two statutes fail to bring this stop and search within the “carefully defined class[]” of administrative search cases, Camara, 387 U.S. at 528, let alone expressly authorize the stop and search of a moving automobile.
2. Clearly Established
Although this suspicionless stop and search violated the Fourth Amendment, the WDFW officers are still entitled to qualified immunity on this claim if the Tarabochias’ rights were not clearly established as of March 23, 2007, the date of the stop. Pearson, 555 U.S. at 231-32. “The plaintiff bears the burden of proof that the right allegedly violated was clearly established[.]” Romero v. Kitsap Cnty., 931 F.2d 624, 627 (9th Cir.1991). For a right to be “clearly established,” its “contours must be sufficiently clear that a reasonable official would understand that” his or her actions violated that right. Hope, 536 U.S. at 739. To meet this standard “the very action in question” need not have “previously been held unlawful.” Chappell, 706 F.3d at 1056. This is particularly true in the Fourth Amendment context, where the constitutional standard of “reasonableness” demands a fact-specific inquiry. Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir.2011). Under this second prong, we therefore consider “whether a reasonable officer would have had fair notice that [the action] was unlawful[.]” Chappell, 706 F.3d at 1056-57; accord A.D. v. Calif. Highway Patrol, 712 F.3d 446, 454 (9th Cir.2013).
We begin our inquiry “by looking to binding precedent[;] [i]f the right is clearly established by decisional authority of the Supreme Court or this Circuit, our inquiry should come to an end.” Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir. 2004). In the absence of binding precedent clearly establishing the constitutional right, “we look to whatever decisional law is available . . . including decisions of state courts, other circuits, and district courts.” Id.
It was clearly established on the date of the automobile stop at issue here that the Tarabochias had a Fourth Amendment right not to be stopped by WDFW officers while driving on a highway absent reasonable suspicion the Tarabochias had or were about to engage in unlawful activity. In United States v. Munoz, 701 F.2d 1293 (9th Cir.1983), we held that a roving automobile stop by an Oregon Department of Fish and Wildlife biologist and a state game trooper of a hunter driving in a national park to check for compliance with woodcutting and hunting regulations violated the Fourth Amendment because “[s]uch investigative stops must be based on individualized suspicion.” Id. at 1295-1301.
As here, the officers in Munoz stopped the plaintiff to check for compliance with applicable game regulations and they attempted to justify the stop under the Fourth Amendment‘s administrative search exception. Id. at 1295, 1298-1300. In rejecting this justification, we noted that “[the Supreme Court twice has rejected suggestions that th[e] implicit con-
In holding the stop of Munoz unconstitutional, we explicitly relied on these two prior Supreme Court cases—Prouse, 440 U.S. at 663, and Brignoni-Ponce, 422 U.S. at 884—where the Court held that to conduct a roving automobile stop, officials must reasonably suspect the automobile‘s occupants of unlawful behavior. Munoz, 701 F.2d at 1296-1300. Although the purpose of the stops in each of these cases varied, we found the stops at issue in Prouse and Brignoni-Ponce “indistinguishable” from the stop of Munoz “to check for possible game violations.” Id. at 1300. Therefore, as in Prouse and Brignoni-Ponce, the suspicionless stop‘s intrusion on individual privacy outweighed the government‘s interest, there, in preserving animal and plant resources. Id. at 1297-1301.
Prouse, Brignoni-Ponce, and Munoz clearly established that knowledge that a automobile‘s occupants are simply engaged in—or, have recently been engaged in—a regulated activity is insufficient on its own to justify an investigatory automobile stop. See Prouse, 440 U.S. at 663 (“[E]xcept in those situations in which there is at least . . . reasonable suspicion that a motorist is unlicensed . . . or that either the automobile or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver . . . are unreasonable under the Fourth Amendment.“). These cases are supported by a plethora of other pre-March 2007 decisions, which provided the WDFW officers with “fair notice that [their action] was unlawful[.]” Chappell, 706 F.3d at 1056-57; see, e.g., United States v. Rowland, 464 F.3d 899, 907 (9th Cir.2006) (“An officer may stop and question an individual suspected of wrongdoing if the officer can point to ‘specific and articulable facts which . . . reasonably warrant that intrusion.‘“) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); United States v. Lopez-Soto, 205 F.3d 1101, 1104-05 (9th Cir.2000) (explaining that reasonable suspicion of unlawful behavior is required for traffic stops); United States v. Twilley, 222 F.3d 1092, 1095 (9th Cir.2000) (“Under the Fourth Amendment, government officials may conduct an investigatory stop of a vehicle only if they possess reasonable suspicion . . . of criminal activity.“) (internal quotation marks omitted). Munoz, 701 F.2d 1293, clearly extended these Fourth Amendment principles to the acts of fish and wildlife officials when acting pursuant to fish and game laws and regulations.9
Despite this long line of cases holding that officers must possess reasonable suspicion of unlawful conduct to stop an automobile and detain its occupants, Defendants argue that this right was not clearly established because in Munoz, the officers “had no reason to believe” Munoz “had engaged in any regulated activity” before stopping him whereas, here, the officers knew the Tarabochias had recently engaged in fishing. For this assertion, Defendants point out that the officers in Munoz did not observe the chopped wood in the back of Munoz‘s truck before flagging him down to stop; instead, they noticed the wood “[a]t the same time [they]
That the officers in Munoz did not see the chopped wood in Munoz‘s truck before waving him down to stop was not essential to our holding. Instead, as discussed above, we relied on Prouse, 440 U.S. 648, and Brignoni-Ponce, 422 U.S. 873, for the proposition that “roving stops made without any reasonable suspicion of criminal activity regarding the vehicle, its occupants, or its contents” are unconstitutional. Munoz, 701 F.2d at 1297 (emphasis added). Under this reasoning, since “[c]arrying wood was not illegal in the park,” id. at 1296 n. 7, the officers’ conduct would have still been unconstitutional even if they had observed the chopped wood before effectuating the stop. It was the lack of reasonable suspicion of criminal or other unlawful activity, not of regulated activity, that Munoz held essential. Therefore, any slight factual distinction between the stop at issue in Munoz and the stop at issue here is “irrelevant . . . because the constitutional rule [Munoz and other binding precedent] established appl[ies] with obvious clarity” to the WDFW officers’ conduct. A.D., 712 F.3d at 454 (internal quotation marks and citation omitted).10
Finally, “a reasonable officer would [have] recognize[d]” that the suspicionless stop of the Tarabochias’ automobile exceeded the bounds of the statutes Defendants purportedly relied on. Grossman v. City of Portland, 33 F.3d 1200, 1210 (9th Cir.1994). As discussed above, supra Part III.A.1, neither section
For example, section
Thus, “it should have been readily apparent to a reasonable officer” that neither section
For these reasons, we hold that the suspicionless stop and search of the Tarabochias’ automobile violated “clearly established . . . constitutional rights of which a reasonable person would have known.” Chappell, 706 F.3d at 1056. Officers Michael Cenci and Dan Chadwick are therefore not entitled to qualified immunity on the Tarabochias’ Fourth Amendment claim.
B. Fourteenth Amendment Claim
We now turn to the summary judgment dismissal of the Tarabochias’ Fourteenth Amendment substantive due process claim. The district court dismissed this claim based on its assumption that the March 23, 2007, stop must be analyzed exclusively under the Fourth Amendment and, absent this incident, all remaining alleged incidents fall outside the applicable statute of limitations.12 Although the district court did not expressly analyze whether the March 23, 2007, stop could arise under both the Fourteenth and Fourth Amendments, we agree with its ultimate conclusion that it cannot.13
The district court therefore properly dismissed the Tarabochias’ substantive due process claim because, without the March 23, 2007, stop, the claim is untimely.
IV. CONCLUSION
We recognize the importance of Washington state‘s interest in promoting the conservation of its fishery and its ability to closely regulate the commercial fishing industry in a manner to further this interest, including by statutorily authorizing tailored warrantless administrative searches. However, the WDFW officers did not conduct their suspicionless stop and search of the Tarabochias’ automobile pursuant to any statutory authority. Such suspicionless automobile searches and seizures of commercial fishers, absent express statutory authorization, subject them to “unfettered governmental intrusion,” Prouse, 440 U.S. at 663—the principal evil against which the Fourth Amendment protects.
In light of the foregoing, we affirm the grant of summary judgment as to Officers Hopkins and Rhoden, and reverse the grant of qualified immunity to Officers Michael Cenci and Dan Chadwick and the related summary judgment dismissal of the Tarabochias’ Fourth Amendment claim. We remand for further proceedings on this claim. Finally, we affirm the dismissal of the Tarabochias’ Fourteenth Amendment substantive due process claim.
REVERSED in part, AFFIRMED in part, and REMANDED. Costs on appeal to Appellants.
MICHAEL DALY HAWKINS
UNITED STATES CIRCUIT JUDGE