Johnson v. Barker

• Decision Date: 18 September 1986
• Docket Number: No. 84-4175,84-4175
• Citation: 799 F.2d 1396
• Parties: Russell M. JOHNSON, Dale A. Peterson, and Otto V. Sieber, Plaintiffs-Appellants, v. George BARKER, William Closner, Grant Hansen, Robert Leick, and Skamania County, Washington, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1396

799 F.2d 1396

Russell M. JOHNSON, Dale A. Peterson, and Otto V. Sieber, Plaintiffs-Appellants, v. George BARKER, William Closner, Grant Hansen, Robert Leick, and Skamania County, Washington, Defendants-Appellees.

No. 84-4175.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 6, 1986.

Decided Sept. 18, 1986.

Michael D. Hunsinger, Neubauer, Mair, Abercrombie & Hunsinger, Seattle, Wash., for plaintiffs-appellants.

F. Ross Burgess, Tacoma, Wash., H. Roland Hofstedt, Merrick, Hofstedt & Lindsey, Seattle, Wash., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

OPINION ^*

Before WRIGHT, ANDERSON, and JOHN T. NOONAN, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Russell Johnson, Dale Peterson and Otto Sieber (appellants) brought this civil rights action against Skamania County, Washington and four Skamania County officials pursuant to 42 U.S.C. Sec. 1983 (1976). The district court granted summary judgment in favor of Skamania County and its officials. We affirm.

I. BACKGROUND

On May 18, 1980, a major volcanic eruption shook Mt. St. Helens in Washington. Appellants, led by Sieber, were members of a film crew making a film about the volcano. On May 23, 1980, appellants entered the Mt. St. Helens area and began hiking toward the top so as to complete their filmmaking endeavors. They hiked through the night and, at approximately 11:00 a.m. the next morning, May 24, appellants were spotted on the mountain by an Army helicopter pilot flying a search and rescue sortie. The helicopter landed and the pilot offered appellants a ride off the mountain. Appellants refused, stating that they intended to continue hiking to Spirit Lake. The pilot gave appellants a map and a compass, and then returned to report the incident to other search and rescue authorities.

After completing their filming the same day, appellants began hiking back down the mountain. At approximately 2:00 p.m., a helicopter carrying Skamania County Deputy Sheriff George Barker landed near appellants. Barker issued citations to appellants and refused appellants' request to fly them off the mountain. Appellants further allege that Barker, before taking off in his helicopter, forced appellants to change their route down the mountain. Appellants claim that as a result of the new route, which was the longer route they had used to go up the mountain the previous day, they were forced to spend another night on the mountain. During that night, Mt. St. Helens erupted again, raining ash and mud upon appellants. Unable to hike the rest of the way off the mountain, appellants eventually had to be rescued by helicopter.

The citations received by appellants were for violating an executive order that established restricted access zones around the mountain. Counsel for appellants notified Skamania County Deputy Prosecutor Grant Hansen that appellants were never within the restricted access zones and, therefore, had not violated the executive order. After looking into the matter further, Hansen confirmed that appellants were not within the forbidden zones as originally thought. Hansen informed appellants' counsel, however, that the Sheriff's office was pushing for a prosecution and that appellants might have illegally entered a broader restricted zone that was then in existence. Upon further study, Hansen determined that the broader zone had not been properly disclosed to the public, thus eliminating any possible prosecution on those grounds. Hansen dismissed the original charges and filed a new complaint on September 10, 1980, charging appellants with attempting to violate the executive order. No trial was held on these charges, however. On February 13, 1981, a Washington Superior Court granted a Writ of Prohibition filed by appellants on the ground that they had been denied their right to a speedy trial.

On June 1, 1983, appellants filed this civil rights action seeking damages for various torts allegedly committed under color of state law. Named in the suit as defendants were Barker, Hansen, Sheriff William Closner, Prosecutor Robert Leick, and Skamania County. Closner, Barker and Skamania County were charged with false arrest, false imprisonment and abuse of process. In addition, Closner was charged with malicious prosecution and defamation, while Skamania County was charged with defamation. Leick and Hansen were charged with malicious prosecution and abuse of process, and Leick was included in the defamation claim. On August 20, 1984, the district court granted summary judgment in favor of defendants on all counts except as to the false arrest claim against Barker. Appellants voluntarily dismissed that count and brought this appeal of the summary judgment.

II. DISCUSSION

We review the grant of summary judgment de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). Summary judgment is proper if, viewing the evidence in the light most favorable to appellants, no genuine issue of material fact remains for trial and defendants are entitled to prevail under the applicable substantive law. Demoran v. Witt, 781 F.2d 155, 156 (9th Cir.1986).

It is well settled that section 1983 "imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433, 443 (1979). The Due Process Clause does not, by its own force, extend individuals a right to be free of injury wherever a state is characterized as the tortfeasor. The Fourteenth Amendment is not a "font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405, 413 (1976). In order to achieve constitutional import, there must be a deprivation of a protected interest. Davidson v. Cannon, --- U.S. ----, ----, 106 S.Ct. 668, 670-71, 88 L.Ed.2d 677, 683 (1986). Consequently, although appellants speak primarily in terms of traditional tort law concepts, they essentially claim a deprivation of liberty without due process. ¹ We will analyze each of appellants' claims on this basis.

A. Defamation.

Appellants claim that they were defamed by Closner and Leick in statements made to the press after the incident. If we assume the statements are defamatory, by virtue of viewing the facts in the light most favorable to appellants, the statements nevertheless fail to rise to the level of a constitutional tort. Paul v. Davis teaches that damage to reputation, standing alone, cannot state a claim for relief under section 1983 because reputation is neither "liberty" nor "property" guaranteed against state deprivation without due process of law. In order to attain protected status under the Due Process Clause, the state action complained of must also alter or extinguish a right or status previously recognized by state law. 424 U.S. at 711-12, 96 S.Ct. at 1165, 47 L.Ed.2d at 420.

Appellants have not alleged the loss of a "more tangible interest" as required by the Paul doctrine. The authority cited by appellants does not support their position, for in each instance the court applied Paul 's reputation-plus principle and found a separate federally recognizable liberty interest. See Vanelli v. Reynolds School District No. 7, 667 F.2d 773, 778 (9th Cir.1982) (finding loss of employment sufficient); Marrero v. City of Hialeah, 625 F.2d 499, 519 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981) (finding violation of Fourth Amendment rights sufficient). The summary judgment was proper as to this claim.

B. False Arrest.

Appellants also claim that they were falsely arrested when Barker landed his helicopter, approached appellants, issued citations, and departed. This claim is meritless. Issuing a citation under these circumstances is simply not tantamount to an arrest. It is true that "[w]hether an arrest has occurred 'depends on an evaluation of all the surrounding circumstances,' ... and not the subjective intent of the officers involved." United States v. Beck, 598 F.2d 497, 500 (9th Cir.1979) (citing United States v. Richards, 500 F.2d 1025, 1028 (9th Cir.1974), cert. denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393 (1975), and Taylor v. State of Arizona, 471 F.2d 848, 851 (9th Cir.1972), cert. denied, 409 U.S. 1130, 93 S.Ct. 948, 35 L.Ed.2d 262 (1973)). Even if we assume, as appellants allege, that Barker was angry and vulgar when issuing the citation, these circumstances do not approach an "arrest" for purposes of this claim. Consequently, summary judgment was proper.

C. Malicious Prosecution and Abuse of Process.

Appellants claim abuse of process and malicious prosecution of constitutional proportions out of the following assumed facts. First, that the prosecutors hesitated to drop the initial charges, even after they were discovered to be baseless, because the sheriff wanted to prosecute appellants for "political" reasons. Second, that the prosecutors tried to make a case against appellants by arguing that they had entered a broader restricted zone, when in fact that zone had not been sufficiently publicized. Third, that after finally dismissing the first charges, the prosecutors filed a new complaint against appellants charging them with "attempting" to enter the known restricted areas. Fourth, that prosecutor Hansen misrepresented to appellants' counsel that the Army helicopter pilot would testify at trial, when in fact Hansen knew the witness would be unavailable. Finally, that the prosecutors sought and received a continuance based on that unavailability and subsequently failed to bring appellants to trial before the Writ of Prohibition was granted. It is undisputed that at no time were appellants incarcerated or physically abused by the state officials.

Most clearly, this scenario does not give rise to a valid denial of substantive due process...