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Tarabochia v. Adkins

United States Court of Appeals, Ninth Circuit

September 9, 2014

MATTHEW ALEXANDER TARABOCHIA; ALEX DANIEL TARABOCHIA, Plaintiffs-Appellants,
v.
FBI SPECIAL AGENT MICKEY ADKINS, Defendant, and 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, Defendants-Appellees

Argued and Submitted, Seattle, Washington April 7, 2014

Page 1116

[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Western District of Washington. D.C. No. 3:10-cv-05197-BHS. Benjamin H. Settle, District Judge, Presiding.

Civil Rights

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 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.

Amit Kurlekar (argued), Kaufhold Gaskin LLP, San Francisco, California, Pro Bono Counsel for Plaintiffs-Appellants.

Paul F. James (argued), Assistant Attorney General and Robert W. Ferguson, Attorney General, Office of the Washington Attorney General, Olympia, Washington, for Defendants-Appellees.

Before: Michael Daly Hawkins, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges. Opinion by Judge Hawkins.

OPINION

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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;

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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[4] 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

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caused them to stop. Officers Brett Hopkins and Brad Rhoden soon arrived on the scene ...


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