Matthew Alexander Tarabochia v. FBI Special AGent Mickey Adkins

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

4 TARABOCHIA V. ADKINS

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.

1 Due to their failure to list all four original plaintiffs on the Notice of

Appeal, Matthew and Alex are the only Appellants in this case. See

Torres v. Oakland Scavenger Co., 487 U.S. 312, 317–18 (1988) (use of

"et al.” does not confer jurisdiction over appeal of plaintiff not listed in

notice of appeal).

2 We refer to the Tarabochias by their first names throughout this

opinion for clarity.

TARABOCHIA V. ADKINS 5

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; 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.

6 TARABOCHIA V. ADKINS

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

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.

TARABOCHIA 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.

8 TARABOCHIA V. ADKINS

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.

6 The Tarabochias also alleged a Sixth Amendment claim and a

Fourteenth Amendment equal protection claim, which have since been

dismissed and are not advanced on appeal.

TARABOCHIA V. ADKINS 9

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 evidence and draw all inferences in the light most

favorable to the nonmoving party, here, the” Tarabochias.

Gravelet-Blondin, 728 F.3d at 1090 (internal quotation marks

omitted).

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 (1982)). This doctrine provides an

immunity from suit rather than a defense to liability, Pearson

v. Callahan, 555 U.S. 223, 231 (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 (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

10 TARABOCHIA V. ADKINS

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[.]” U.S.

Const. amend. IV. Given the Fourth Amendment's core

purpose of protecting against arbitrary intrusions by

government officials, see Delaware v. Prouse, 440 U.S. 648,

653–54 (1979), "[a] search or seizure is ordinarily

unreasonable in the absence of individualized suspicion of

wrongdoing.” United States v. Fraire, 575 F.3d 929, 931 (9th

Cir. 2009) (citing City of Indianapolis v. Edmond, 531 U.S.

32, 37 (2000)). Because stopping an automobile and

detaining its occupants, "even if only for a brief period and

for a limited purpose,” constitutes a "seizure” under the

Fourth Amendment, Whren v. United States, 517 U.S. 806,

809–10 (1996), an official must have individualized

"reasonable suspicion” of unlawful conduct to carry out such

a stop. See Prouse, 440 U.S. at 663; United States v.

Brignoni-Ponce, 422 U.S. 873, 884–86 (1975).

TARABOCHIA V. ADKINS 11

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 (1981),

if they are "unaccompanied by any quantum of

individualized, articulable suspicion” they "must be

undertaken pursuant to previously specified 'neutral

criteria,'” i.e., a warrant. Prouse, 440 U.S. at 662 (quoting

Marshall v. Barlow's, Inc., 436 U.S. 307, 323 (1978)).

However, a warrant is not required if the search falls within

"certain carefully defined classes of cases.” Camara v. Mun.

Court of City & Cnty. of S.F., 387 U.S. 523, 528 (1967).

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

7 Defendants do not argue that they stopped the Tarabochias as part of

a fixed checkpoint. Their reliance on checkpoint cases for the proposition

that individualized suspicion of wrongdoing is unnecessary is therefore

misplaced given the distinct nature of checkpoints as opposed to the type

of roving stop at issue here. See Fraire, 575 F.3d at 934–35 (holding a

checkpoint stop reasonable under the Fourth Amendment and explaining

that "[t]he subjective intrusion from a checkpoint stop is significantly less

12 TARABOCHIA V. ADKINS

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

(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 (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.

than other types of seizures, such as random stops”). Additionally,

although Defendants allege they stopped the Tarabochias on the highway

because stopping them in the field inspection area near their home

presented unidentified safety concerns, they do not attempt to justify

constitutionally the stop on the basis of this disputed fact. We therefore

do not address this argument.

TARABOCHIA V. ADKINS 13

1983) (fishing vessels); Raub, 637 F.2d 1205 (fishing

vessels); United States v. Tsuda Maru, 470 F. Supp. 1223 (D.

Alaska 1979) (fishing vessels).

To justify the stop under this exception, the officers rely

on the state's broad interest in protecting the fishery, the long

history of regulation of the commercial fishing industry, and

two Washington state statutory provisions. To be sure,

protecting the fishery is an important governmental interest

and "[c]ommercial fishing has a long history of being a

closely regulated industry.” Raub, 637 F.2d at 1209. But a

specific statute authorizing a particular type of warrantless

search is required, and the existence of such a statute alone

may not even be sufficient, for the administrative search

exception to apply. See Kaiyo Maru No. 53, 699 F.2d at 995

(noting that the "reasonableness” of a warrantless inspection

program under the Fourth Amendment "is determined on a

case-by-case basis” and "depends on the specific enforcement

needs and privacy guarantees of each statute”); Raub,

637 F.2d at 1211 n.7 (explicitly limiting its holding to

searches under the Sockeye Salmon or Pink Salmon Fishing

Act); Tsuda Maru, 470 F. Supp. at 1227–30 (upholding

search under the Fishery Conservation Management Act).

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.” Wash. Rev. Code § 77.15.080(1) (2002). This

14 TARABOCHIA V. ADKINS

statute does not expressly authorize an automobile stop or

define "engaged in fishing,” and Defendants have pointed to

no regulatory or other published authority applying this

provision to a roving automobile stop of commercial fishers.

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 77.15.080(1) meets

the demands of the administrative search exception, much

less that it authorizes this type of stop in the first place. See

Donovan, 452 U.S. at 603 (upholding a warrantless search

under the administrative search exception in part because, in

addition to being "specifically tailored” to protect the

government's interests, the regulations the Federal Mine

Safety and Health Act of 1977 imposed were "sufficiently

pervasive and defined that the owner of such a [mine] cannot

help but be aware that he will be subject to effective

inspection”) (internal quotation marks omitted).

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

77.15.080(1) limiting the potential scope of automobile

searches conducted under its authority. Without these

limitations, section 77.15.080(1) could potentially authorize

inspection of any automobile possibly containing fish or

wildlife at any time, whether in motion or stationary, and in

TARABOCHIA V. ADKINS 15

any location, even if hundreds of miles from the closest

fishing grounds or commercial fishing establishment, so long

as an officer believed the person was then "engaged in

fishing.” The statute's lack of specificity is further evidenced

by its application to all "persons,” not simply to commercial

fishers. See State v. Thorp, 856 P.2d 1123, 1126 (Wash. Ct.

App. 1993) (holding administrative search exception

inapplicable to a roving automobile stop where the relevant

statute applied to "any person,” indicating regulation of the

general public, not a particular industry). Therefore, we find

unpersuasive Defendants' argument that this statute

authorized the stop and search of the Tarabochias' automobile

and did so in a manner consistent with the administrative

search exception.

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[.]” Wash. Rev. Code § 77.15.096 (2002).

This provision goes on to prohibit officers from conducting

warrantless searches and seizures where "the thing or place

is protected from search without warrant within the meaning

of Article I, section 7 of the state Constitution.” As with

section 77.15.080(1), this statute says nothing of stopping or

searching commercial fishers' automobiles and Defendants

have provided no authority interpreting this provision as

authorizing such a stop.

Even if section 77.15.096 could somehow be construed to

authorize the suspicionless stop and subsequent search of a

16 TARABOCHIA V. ADKINS

closed tote aboard a commercial fisher's automobile,8 the

portion of this provision relied upon by Defendants would

still fail to meet the requirements of the administrative search

exception since it "does not provide any standards to guide

inspectors either in their selection of [automobiles] to be

searched or in the exercise of their authority to search.”

Donovan, 452 U.S. at 601; accord Colonnade Catering

Corp., 397 U.S. at 77. Instead, the only limitation this

portion of section 77.15.096 would place on stops and

inspections of commercial fishers in moving automobiles

would be that such stops be carried out "at reasonable times

and in a reasonable manner.” The Fourth Amendment

already requires that searches be "reasonable,” and the

Supreme Court has made clear that additional guidance to

cabin officers' discretion to search is required under the

administrative search exception. See Donovan, 452 U.S. at

601 (discussing Marshall, 436 U.S. 307, where the Court held

a statutory scheme authorizing warrantless searches "at . . .

reasonable times, and within reasonable limits and in a

reasonable manner” inadequate under the administrative

search exception).

Whether considered in combination or in isolation, these

two statutes fail to bring this stop and search within the

8 By section 77.15.096's express language, this would require that

Article I, section 7 of the Washington Constitution does not prohibit a

warrantless search of a container aboard an automobile stopped absent any

suspicion of wrongdoing. This state constitutional provision is more

protective than the Fourth Amendment and prohibits automobile stops not

founded on probable cause or articulable suspicion of wrongdoing. City

of Seattle v. Mesiani, 755 P.2d 775, 776 (Wash. 1988) (en banc) (holding

sobriety checkpoint violated Washington Constitution and commenting

that "article 1, section 7 provides greater protection to individual privacy

interests than the Fourth Amendment”).

TARABOCHIA V. ADKINS 17

"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.

Instead of inspecting the Tarabochias' catch and

commercial fishing records in the field, at a commercial

fishing establishment, or through a fish and wildlife

checkpoint—all of which, both parties agree, would have

been authorized under Washington law—the WDFW officers

decided to stop the Tarabochias as they traveled in their

pickup truck on a highway. They effectuated this stop despite

admittedly lacking any suspicion of unlawful behavior or

statutory authority that would permit this search under the

administrative search exception. We hold that, under these

circumstances, this stop, and the search that followed,

constituted a Fourth Amendment violation.

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 (internal quotation marks

omitted). To meet this standard "the very action in question”

need not have "previously been held unlawful.” Chappell,

706 F.3d at 1056 (internal quotation marks omitted). This is

particularly true in the Fourth Amendment context, where the

18 TARABOCHIA V. ADKINS

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 (internal quotation marks omitted); 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) (internal citations omitted). 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. (internal quotation marks omitted).

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

TARABOCHIA V. ADKINS 19

Amendment's administrative search exception. Id. at 1295,

1298–1300. In rejecting this justification, we noted that

"[t]he Supreme Court twice has rejected suggestions that th[e]

implicit consent theory [underlying the administrative search

exception] justifies roving stops of motorists.” Id. at 1299.

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

20 TARABOCHIA V. ADKINS

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 (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;

9 The district court and the WDFW officers relied on People v. Maikhio,

253 P.3d 247 (Cal. 2011), a 2011 Supreme Court of California decision,

as persuasive authority in holding that the right was not clearly

established. Not only is Maikhio distinguishable on its facts and largely

in conflict with Munoz, but it also post-dates the stop at issue here. It is

therefore irrelevant to the inquiry of whether the right at issue was clearly

established as of the date of the stop.

TARABOCHIA V. ADKINS 21

instead, they noticed the wood "[a]t the same time [they]

flagged” him down. Munoz, 701 F.2d at 1295.

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

10 Although we need not look beyond binding precedent, Boyd, 374 F.3d

at 781, we note that even non-binding precedent clearly established the

Tarabochias' Fourth Amendment right to be free from the suspicionless

stop. In Thorp, 856 P.2d 1123, an officer "observed a flatbed truck loaded

with cedar blocks traveling north on a county road,” and he stopped the

truck "in order to ascertain whether its driver . . . had a specialized forest

products permit.” Id. at 1124. As in the Tarabochias' case, the officer's

knowledge that Thorp had engaged in a regulated activity—evidenced by

the visible cedar blocks in his truck—motivated the stop. Id. The officer

lacked any "articulable suspicion” before stopping Thorp, and the officer

contended that he had authority to conduct the suspicionless stop because

22 TARABOCHIA V. ADKINS

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 77.15.080(1) nor section 77.15.096 mentions

stopping or searching automobiles.11 Unlike these provisions,

there are other provisions also within Washington's Fish and

Wildlife Enforcement Code that explicitly apply to stops and

searches of automobiles and, importantly, these statutes

carefully limit WDFW officers' authority to conduct such

stops and searches.

For example, section 77.15.094 explicitly authorizes

WDFW officers to search "vehicles” without a warrant, but

the forest products industry is "pervasively regulated.” Id. at 1124–25.

The court rejected this argument and determined that "even if the forest

products industry were pervasively regulated, the Fourth Amendment

standards applicable to such industries would not allow the police to

randomly stop a moving vehicle without . . . articulable suspicion.” Id. at

1125. Relying explicitly on Prouse, 440 U.S. 648, Brignoni-Ponce,

422 U.S. 873, and Munoz, 701 F.2d 1293, the court held that the stop was

"governed by the Fourth Amendment principles that ordinarily apply to

traffic stops” and that it was therefore unconstitutional under both the

United States and Washington Constitutions. Id. at 1126–27. Thorp's

facts and constitutional holding are directly applicable to the WDFW

officers' conduct.

11 Defendants argue that Schlegel v. Department of Licensing, 153 P.3d

244 (Wash. Ct. App. 2007), a pre-March 2007 decision, renders the stop

at issue here lawful under section 77.15.080(1). Although Schlegel held

that section 77.15.080(1) authorized a stop by a WDFW officer of a

hunter's automobile on a "hunting road,” it did so within the context of a

checkpoint limited to stops of persons "engaged in hunting” while in their

automobile and explicitly limited its holding to this factual scenario. Id.

at 245–47. Schlegel therefore does not alter our analysis.

TARABOCHIA V. ADKINS 23

only where officers have "reason to believe” the vehicle

contains "evidence of a violation of” fish and game laws or

regulations. Wash. Rev. Code § 77.15.094 (2001). The

WDFW officers admit they lacked any "reason to believe”

the salmon aboard the Tarabochias' truck was "evidence of

a violation.” WDFW officers also have authority "to require

. . . fishers occupying a motor vehicle approaching or entering

a check station to stop and produce for inspection . . . [a]ny

wildlife, fish, shellfish, or seaweed in their possession,” and

"licenses, permits, tags, stamps, or catch record cards[.]”

Wash. Rev. Code § 77.12.620. These "check station[s]” must

be clearly marked, id., and cannot be established "upon

interstate highways or state routes.” Wash. Rev. Code

§ 77.15.470(3) (2000).

Thus, "it should have been readily apparent to a

reasonable officer” that neither section 77.15.080(1) nor

section 77.15.096 authorized the suspicionless roving stop,

and the subsequent search, of the Tarabochias' pickup truck

as they drove on a highway and public road. Ctr. for

Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep't, 533 F.3d

780, 798 (9th Cir. 2008)); accord Grossman, 33 F.3d at 1210

(An officer who enforces an ordinance "in a manner which a

reasonable officer would recognize exceeds the bounds of the

ordinance, will not be entitled to [qualified] immunity[.]”).

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.

24 TARABOCHIA V. ADKINS

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

12 Contrary to Defendants' suggestion, this argument is not waived due

to the Tarabochias' failure to respond to their summary judgment motion

as "even if a party fails to raise an issue in the district court, we generally

will not deem the issue waived if the district court actually considered it.”

Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1054 (9th Cir. 2006)

(citing Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 n.1 (9th Cir.

1991). The district court actually considered whether the March 23, 2007,

incident could form a basis for the Fourteenth Amendment claim.

Therefore, we will not deem this issue waived.

13 On appeal, the Tarabochias argue for the first time that the continuing

violations doctrine renders the incidents occurring prior to the limitations

period, in conjunction with the March 23, 2007, stop, actionable under the

Fourteenth Amendment. Unlike whether the Tarabochias' alleged the

March 23, 2007, stop as a factual basis for the Fourteenth Amendment

claim, the record does not indicate that the district court ever "actually

considered,” Cmty. House, Inc., 490 F.3d at 1054, the applicability of the

continuing violations doctrine to the remaining incidents when faced with

Defendants' summary judgment motions. As a result, this argument is

waived. Alexopulos by Alexopulos v. Riles, 784 F.2d 1408, 1411 (9th Cir.

1986) (statute of limitation tolling argument waived on appeal because

Appellants had not raised it before the district court). Even if we were to

consider this argument, we find the continuing violations doctrine

TARABOCHIA V. ADKINS 25

The Supreme Court has instructed that "[w]here a

particular Amendment provides an explicit textual source of

constitutional protection against a particular sort of

government behavior, that Amendment, not the more

generalized notion of substantive due process, must be the

guide for analyzing these claims.” Albright v. Oliver,

510 U.S. 266, 273 (1994) (quoting Graham v. Connor,

490 U.S. 386, 395 (1989)) (plurality opinion of Rehnquist,

C.J.) (internal quotation marks omitted). The Fourth

Amendment explicitly protects against unreasonable

"searches and seizures” whereas the Fourteenth Amendment

due process clause protects against official behavior that

"shocks the conscience.” Fontana v. Haskin, 262 F.3d 871,

881 (9th Cir. 2001). Because the actionable incident here, the

March 23, 2007, stop, "constitutes a 'seizure' of 'persons'”

under the Fourth Amendment, Whren, 517 U.S. at 809, it is

properly analyzed exclusively under this constitutional

provision and not under the broader concept of substantive

due process. Compare Fontana, 262 F.3d at 880–82 (holding

that, although "[s]exual misconduct by a police officer” is

often analyzed under the Fourteenth Amendment, appellant's

claim is properly brought exclusively under the Fourth

Amendment since she had been "seized” by the police), with

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 836, 843 (1998)

(holding that a claim stemming from a high-speed police

inapplicable since the Tarabochias' claims are based on "discrete acts,

each of which is actionable on its own.” RK Ventures, Inc. v. City of

Seattle, 307 F.3d 1045, 1061 n.13 (9th Cir. 2002). Accordingly, these

"acts are not actionable if time barred, even [if] they are related to” the

March 23, 2007, stop. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 113 (2002). Although the pre-March 2007 incidents could still be

considered "as evidence of an unconstitutional motive,” RK Ventures, Inc.,

307 F.3d at 1062, this would still leave the March 23, 2007, stop as the

only basis for liability.

26 TARABOCHIA V. ADKINS

chase arose under the Fourteenth Amendment due process

rubric, not the Fourth Amendment, since the conduct at issue

did not constitute a "search” or "seizure”).14

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

14 The Tarabochias' reliance on A.D., 712 F.3d 446, in support of their

argument that the March 2007 stop can be analyzed under both the Fourth

and Fourteenth Amendments is misplaced. Unlike in Fontana, 262 F.3d

871, in A.D. we had no occasion to consider the question now before us.

TARABOCHIA V. ADKINS 27

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.