39 F.3d 1420 (9th Cir. 1994), 92-16988, Gasho v. United States

Docket Nº:92-16988, 93-15727.
Citation:39 F.3d 1420
Party Name:John R. GASHO, Sr.; Sharon L. Gasho, Plaintiffs-Appellants, v. UNITED STATES of America; Northrop Worldwide Aircraft Services, Inc., an Oklahoma corporation, et al., Defendants-Appellees. John R. GASHO, Sr.; Sharon L. Gasho; Millardair, Ltd., a Canadian corporation, Plaintiffs-Appellants, v. William L. BALL; Roger Mannhalter; John J. Howe, Jr., Def
Case Date:November 02, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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39 F.3d 1420 (9th Cir. 1994)

John R. GASHO, Sr.; Sharon L. Gasho, Plaintiffs-Appellants,


UNITED STATES of America; Northrop Worldwide Aircraft

Services, Inc., an Oklahoma corporation, et al.,


John R. GASHO, Sr.; Sharon L. Gasho; Millardair, Ltd., a

Canadian corporation, Plaintiffs-Appellants,


William L. BALL; Roger Mannhalter; John J. Howe, Jr.,


Nos. 92-16988, 93-15727.

United States Court of Appeals, Ninth Circuit

November 2, 1994

Argued and Submitted March 17, 1994.

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Merwin D. Grant, Christine R. Taradash, and Maria Crimi Speth, Beus, Gilbert & Morrill, Phoenix, AZ, for plaintiffs-appellants.

Barbara L. Herwig and Wendy M. Keats, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Appeals from the United States District Court for the District of Arizona.

Before: D.W. NELSON, BOOCHEVER and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

These cases involve the seizure of an aircraft and the arrest of its owners, John and Sharon Gasho, by the United States Customs Service. The Gashos filed false arrest and other tort claims against the United States, pursuant to the Federal Tort Claims Act (FTCA), 18 U.S.C. Secs. 1346(b), 2674. The district court dismissed the Gashos' action. The Gashos then filed a Bivens action against the Customs agents, claiming that the aircraft seizure and personal arrests violated their Fourth and Fifth Amendment rights. The district court dismissed the Bivens action pursuant to 28 U.S.C. Sec. 2676. We have jurisdiction over both of the Gashos' appeals pursuant to 28 U.S.C. Sec. 1291. We reverse in part, affirm in part and remand for further proceedings.


John and Sharon Gasho own an aircraft restoration company in Tucson, Arizona. On June 24, 1988, the Gashos flew a McDonnell Douglas DC-3 aircraft to Scottsdale Municipal Airport in order to meet with John Zarcone, a Federal Aviation Administration (FAA) inspector. The Gashos were selling the aircraft to Millardair, Ltd., a Canadian corporation, and they wanted to terminate the United States registration of the aircraft before export.

At the airport, Zarcone issued the Gashos several documents, including a special flight authorization allowing the aircraft to be flown to the United States-Canada border with Canadian registry markings. The authorization stated that Canada would not issue a valid Canadian registration until the aircraft actually entered into Canada. 1 The Gashos and Zarcone removed the U.S. registration markings and affixed the Canadian markings to the aircraft. The Gashos then returned to their hotel room.

An air traffic controller at the airport noticed that the registration markings on the DC-3 had been changed after its arrival. He alerted William Gately, the Customs agent in charge. Gately dispatched Special Agents William Ball and Roger Mannhalter to investigate. 2 The agents confronted the Gashos at their hotel room. John Gasho explained that he obtained the Canadian registry markings from the aircraft's new owner, Millardair, and that an FAA inspector had assisted in changing the registration markings. He explained that the FAA inspector issued a special authorization permit, which was inside

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the aircraft, allowing the aircraft to be flown to Canada. Agent Ball began advising John Gasho of his Miranda rights. The Gashos then summoned their daughter, Pamela Vining, a Phoenix attorney, for legal counsel.

The agents, the Gashos and Vining went to the Scottsdale airfield. There, the Gashos showed the agents the special flight authorization allowing them to fly the aircraft with Canadian markings. While the document allowed the aircraft to fly with the Canadian markings, the agents decided that the document did not establish the validity of the Canadian markings. Zarcone could not be reached by telephone. The agents placed a lock on the aircraft's propeller, believing they had probable cause to seize the aircraft for the "knowing[ ] and willful[ ]" display of "false or misleading" markings, in violation of 49 U.S.C. App. Sec. 1472. 3

After seizing the aircraft, the Customs agents gave permission to Sharon Gasho to enter the aircraft to remove personal belongings and the aircraft's radio. The Customs agents did not tell her that any items inside the aircraft were seized. Among the items she removed were the aircraft's logbooks. Sharon Gasho then exited the aircraft, carrying the items in a plastic bag. At that time, John Gasho and the Customs agents were standing on the tarmac near the aircraft. In the presence of the Customs agents, John Gasho called out to his wife and asked her whether she removed the logbooks. She replied, "Yes, I did." Sharon Gasho then placed the plastic grocery bag containing the logbooks and other personal belongings into Vining's automobile. It is undisputed that the agents did not protest or attempt to stop Sharon Gasho from removing the logbooks and placing them in the vehicle. 4 In a deposition, Agent Ball was cross-examined as follows:

Q. Did you stop her at that time?

A. No.

Q. Did you say anything to her at that time?

A. No.

Q. Did you protest in any way?

A. No.

Q. All right. What happened next?

A. Shortly thereafter we went inside the aviation center.

The subject of the logbooks was not raised until after the parties entered the Scottsdale Aviation Center to make photocopies of the FAA documents. Ball and the other agents then told the Gashos that the seizure of the aircraft included the logbooks and demanded that the Gashos return them. The Gashos refused. They told the agents that a warrant was required. The agents repeatedly warned the Gashos that they would be arrested if they refused to turn over the logbooks. The Gashos called the local police, but they refused to intervene. At Vining's request, the agents allowed Vining to meet with the Gashos in a private, glass-enclosed office. After several minutes, the agents sought entry to the office. Although there is a dispute over whether the Gashos refused to open the door, the agents entered with a key and arrested the Gashos. While the agents were handcuffing her parents, Vining retrieved the logbooks from her car and gave them to the Customs agents.

The Gashos were booked for violation of 18 U.S.C. Sec. 549, which forbids unlawful removal of property from Customs custody. During booking, an Assistant United States Attorney told Agent Mannhalter that his office would not prosecute the Gashos. Nevertheless, Agent Mannhalter's supervisor, John Howe, ordered Mannhalter to continue the booking and to tell the Gashos that charges would be filed. In October 1989, sixteen months after the arrests, the United States Attorney formally declined to prosecute the Gashos.

A few weeks after the seizure and the arrests, Millardair completed the Canadian registration for the aircraft. The United States Attorney declined to initiate forfeiture

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proceedings against the DC-3 and advised Customs to release the aircraft. The regional counsel for Customs agreed with the United States Attorney that the aircraft should be released but said the release should be conditioned upon the receipt of an agreement from the Gashos releasing Customs and its agents from all civil liability. Six months after it was seized, the aircraft finally was released to Millardair. No release of liability was executed by the appellants.

The Gashos filed suit against the United States under the FTCA, seeking damages for false arrest and false imprisonment, intentional infliction of emotional distress, and abuse of process. 5 The district court granted summary judgment to the government on the false arrest and imprisonment claims and the intentional infliction of emotional distress claim. By subsequent order, the district court dismissed the abuse of process claim for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6).

Following the dismissal of the FTCA claims, the Gashos filed a Bivens action against Agents Ball and Mannhalter, and Howe, the agents' supervisor. The Gashos claimed that the agents arrested them without probable cause, violating their Fourth and Fifth Amendment rights. In addition, in a claim joined by Millardair, the Gashos contended that the agents seized the aircraft without probable cause or due process.

In support of their Bivens claims, the plaintiffs produced a deposition from a Customs Agent who testified that he deliberately avoided assisting in the arrest because he had a "bad feeling about the situation" and did not want to be involved. In addition, Customs Pilot David Kunz testified that Howe told him that the Gashos were arrested, in part, because the Gashos' defiance in refusing to turn over the logbooks "made us mad." Kunz, who took contemporaneous notes of the conversation, testified that Howe also told him that Customs was pursuing criminal proceedings against the Gashos in order to "protect ourselves in case of a lawsuit later."

The defendants moved to dismiss the Bivens claim pursuant to Fed.R.Civ.P. 12(b)(6) and also moved for summary judgment, arguing that 28 U.S.C. Sec. 2676 operates as a complete bar to the Bivens action and, alternatively, that the defendants were entitled to qualified immunity. The district court dismissed the claim, concluding that it was barred by 28 U.S.C. Sec. 2676.


We first address whether the district court erred in granting summary judgment to the United States on the FTCA claims alleging false...

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