Estate of Wasilchen v. Gohrman

• Decision Date: 25 April 2012
• Docket Number: Case No. C11–0749JLR.
• Citation: 870 F.Supp.2d 1115
• Parties: ESTATE OF Daniel L. WASILCHEN, et al., Plaintiffs, v. Henry F. GOHRMAN, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

870 F.Supp.2d 1115

ESTATE OF Daniel L. WASILCHEN, et al., Plaintiffs,

v.Henry F. GOHRMAN, et al., Defendants.

Case No. C11–0749JLR.

United States District Court,

W.D. Washington,

at Seattle.

April 25, 2012.

Raymond J. Dearie, Dearie Law Group, PS, Seattle, WA, for Plaintiffs.

Michael C. Held, Sean D. Reay, Everett, WA, for Defendants.

ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

JAMES L. ROBART, District Judge.

I. INTRODUCTION

On May 29, 2009, Daniel Wasilchen was shot and killed by law enforcement officers outside of his home in Snohomish County, Washington. Mr. Wasilchen's estate (“the Estate”), his sister Kimberly A. Tubbs, and his mother Virginia B. Vukasin ¹ filed the instant lawsuit against Snohomish County (“the County”) and Henry “Sonny” Gohrman, the County's Noxious Weed Coordinator. ² Plaintiffs allege the following causes of action against Defendants: (1) violation of Mr. Wasilchen's Fourth Amendment rights; (2) violation of Mr. Wasilchen's Fourteenth Amendment rights; (3) violation of Ms. Vukasin's Fourteenth Amendment rights; (4) violation of the Washington State Noxious Weed Statute, RCW Chapter 17.10; (5) negligence; (6) negligent training and supervision against the County; (7) wrongful death; (8) intentional torts, including but not limited to trespass, outrage, assault, battery, and false arrest; (9) civil conspiracy; and (10) violation of Plaintiffs' rights under the Washington State Constitution. (Compl. (Dkt. # 1) ¶¶ 3.1–3.17.) Plaintiffs also seek punitive damages. ( Id. ¶ 4. 1.)

Currently before the court is Plaintiffs' motion for partial summary judgment (Dkt. # 24) and Defendants' motion for summary judgment (Dkt. # 14). In response to Defendants' motion, Plaintiffs withdrew their state law claims for civil conspiracy, assault and battery, trespass, negligent training and supervision, outrage, and false arrest. (Resp. to Def. Mot. (Dkt. # 38) at 24–25.) Additionally, Plaintiffs' counsel conceded during oral argument that Plaintiffs' claims under the Washington State Constitution should be dismissed because there is no private cause of action for damages for the alleged violations of the Washington State Constitution. See, e.g., Reid v. Pierce Cnty., 136 Wash.2d 195, 961 P.2d 333, 342–43 (1998); Blinka v. Wash. State Bar Ass'n, 109 Wash.App. 575, 36 P.3d 1094, 1102 (Wash.Ct.App.2001).

The remaining claims to be discussed in this order are Plaintiffs' federal constitutional claims, the alleged violation of the Noxious Weed Statute, negligence, and wrongful death. Having considered the submissions of the parties, the balance of the record, and the relevant law, and having heard the oral argument of counsel on April 23, 2012, the court DENIES Plaintiffs' motion (Dkt. # 24), and GRANTS Defendants' motion (Dkt. # 14).³

II. BACKGROUND

A. Washington State's Noxious Weed Statute

In 1969, the Washington State Legislature enacted the Noxious Weed Statute to protect Washington State's agricultural and other resources from the economic loss and adverse effects caused by noxious weeds. RCW 17.10.007. Noxious weeds are plants that, when established, are highly destructive, competitive, or difficult to control. RCW 17.10.010(1). The Washington State Noxious Weed Board adopts a state weed list each year, in accordance with the Noxious Weed Statute. RCW 17.10.080; see also 1st Gohrman Decl. (Dkt. # 15) ¶ 5. Noxious weeds on the weed list are separated into three classes—A, B, or C—based on distribution, abundance, and level of threat (i.e. how dangerous the plant is to humans, animals, private and public lands, and native habitats). RCW 17.10.010(2); see also 1st Gohrman Decl. ¶ 5. Class A weeds are the most limited in distribution and the highest priority for control. RCW 17.10.010(2); see also 1st Gohrman Decl. ¶ 5. Class B and C weeds vary in priority based on local distribution and impacts. RCW 17.10.010(2); see also 1st Gohrman Decl. ¶ 5. Property owners are required to eradicate all Class A weeds, control and prevent the spread of all Class B weeds designated for control in that region of the state, and control and prevent the spread of all Class B and C weeds listed on the county weed list. RCW 17.10.140; see also 1st Gohrman Decl. ¶ 5. “Eradicate” means to eliminate a noxious weed within an area of infestation, and “control” is defined as the prevention of all seed production and dispersal of all parts of the plant capable of forming new plants. WAC 16–750–003(2).

The Noxious Weed Statute creates a comprehensive scheme for regulating weed eradication and granting authority to county weed control boards to conduct searches of private property, issue citations and infractions, directly control the spread of noxious weeds, place liens on property, and otherwise exercise the power and authority created by the legislation. RCW 17.10.074(1)(g), 17.10.160–.180, 17.10.230, 17.10.280–.350. In particular, when a weed control board finds that a property owner is not taking prompt and sufficient action to control the noxious weeds on his or her property, the noxious weed coordinator, under the authority of the local noxious weed board, can institute a formal enforcement action against the owner. RCW 17.10.170. To do so, the noxious weed coordinator must send written notice by certified mail notifying the owner that he or she is in violation of the Noxious Weed Statute, identifying the weeds found on the property, specifying the date by which the prescribed control action must be taken, and informing the owner that if he or she fails to take action, the county weed board may control the weeds at the owner's expense. Id.

The Noxious Weed Statute also authorizes agents and employees of the county noxious weed control board to enter private property under certain circumstances, and obtain a warrant when the owner refuses permission to inspect the property or perform eradication or control work. RCW 17.10.160. The statute states in relevant part:

Any authorized agent or employee of the county noxious weed control board ... where not otherwise proscribed by law may enter upon any property for the purpose of administering this chapter and any power exercisable pursuant thereto, including the taking of specimens of weeds, general inspection, and the performance of eradication or control work. Prior to carrying out the purpose for which the entry is made, the official making such entry or someone in his or her behalf, shall make a reasonable attempt to notify the owner of the property as to the purpose and need for the entry.

(1) When there is probable cause to believe that there is property within this state not otherwise exempt from process or execution upon which noxious weeds are standing or growing and the owner refuses permission to inspect the property, a judge of the superior court or district court in the county in which the property is located may, upon the request of the county noxious weed control board or its agent, issue a warrant directed to the board or agent authorizing the taking of specimens of weeds or other materials, general inspection, and the performance of eradication or control work.

...

(3) Nothing in this section requires the application for and issuance of any warrant not otherwise required by law: PROVIDED, That civil liability for negligence shall lie in any case in which entry and any of the activities connected therewith are not undertaken with reasonable care.

(4) Any person who improperly prevents or threatens to prevent entry upon land as authorized in this section or any person who interferes with the carrying out of this chapter shall be upon conviction guilty of a misdemeanor.

RCW 17.10.160. In addition, the Noxious Weed Statute provides “[t]hat individual members or employees of a county noxious weed control board are personally immune from civil liability for damages arising from actions performed within the scope of their official duties or employment.” RCW 17.10.134.

B. Noxious Weed Control in Snohomish County

Pursuant to the Noxious Weed Statute, RCW 17.10.060(1), the Snohomish County Noxious Weed Control Board (“the Weed Control Board”) hired Mr. Gohrman as the County's Noxious Weed Coordinator in 1999 (1st Gohrman Decl. ¶ 2). Before assuming this position, Mr. Gohrman worked under the previous Noxious Weed Coordinator as a seasonal employee from 1996 through 1998. ( Id. ¶ 3.)

As the Noxious Weed Coordinator, Mr. Gohrman is responsible for identifying locations where noxious weeds grow in the County and determining who owns the property; notifying property owners that noxious weeds are growing on their property and informing them of their responsibility to prevent proliferation of the weeds; helping identify the plant and educating property owners regarding how to control the specific noxious weed; if funding permits, assisting property owners in control of certain noxious weeds; maintaining and loaning out hand spray and other weed control equipment; and using and demonstrating the use of spraying and other weed control equipment in an environmentally conscious and responsible manner. (1st Gohrman Decl. ¶ 6.) Mr. Gohrman also has various administrative responsibilities, which include working with one other full-time employee to oversee, train, and coordinate the work of seasonal noxious weed control technicians. ( Id. ¶¶ 2, 7.) In addition, Mr. Gohrman is responsible for disseminating information regarding noxious weed eradication through the County's website and the local newspaper, as well as writing reports for the Weed Control Board. ( Id. ¶ 8.)

The vast majority of property owners in the County are cooperative with noxious weed control on their property. ( Id. ¶ 13.) Although there is a distinct minority of people who do not like the County telling them that they need to control their noxious weeds, most of these people eventually comply with Mr. Gohrman's and his staff's requests without any problem. ( Id.) Mr. Gohrman testified that during his...