Romero v. Kitsap County

Decision Date01 May 1991
Docket NumberNo. 90-35448,90-35448
Citation931 F.2d 624
PartiesJohn ROMERO, Dean Harvey, David Seaver, Philip R. Holt, Steven L. Holt, Plaintiffs-Appellees, v. KITSAP COUNTY, Steven Demiero, Michael Charron, Bruce Moore, Charles Pudwill, Philip Worchester, Donald Makoviney, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Robert K. Costello, Asst. Atty. Gen., Olympia, Wash., for defendants-appellants.

Bill Tobin, Cooper Knudson & Tobin, Vashon, Wash., for plaintiffs-appellees.

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

Before WALLACE, Chief Judge, and O'SCANNLAIN and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

This appeal involves consolidated actions filed by four members of certain Washington State Indian tribes and one non-Indian under 42 U.S.C. Sec. 1983 (1988) against Kitsap County, Washington and six Fisheries Patrol Officers (the officers). 1 In their complaints, the plaintiffs alleged, inter alia, that they were arrested in violation of their right to gather shellfish in non-reservation areas, a right they claim was reserved to them in the Stevens Indian Treaties. 2

The officers moved for summary judgment on grounds of qualified immunity. The court denied the motion, and the officers appealed.

We have jurisdiction over this interlocutory appeal under 28 U.S.C. Sec. 1291. Duran v. City of Douglas, Arizona, 904 F.2d 1372, 1375 (9th Cir.1990); Baker v. Racansky, 887 F.2d 183, 185 (9th Cir.1989). We reverse. We hold that the officers are immune because the nature and scope of the plaintiff/appellees' right to gather shellfish is not clearly established.


On May 27, 1986, April 29, 1988, and May 3, 1988, Steven Holt, an enrolled member of the Suquamish Indian Tribe, was arrested or cited by Washington State Department of Fisheries officers for digging commercial quantities of clams on privately owned uncertified or decertified beaches. 3 In each instance, Holt was charged in Kitsap County District Court with possessing a commercial quantity of shellfish without a health certificate, a violation of Washington law.

Philip Holt, Steven Holt's brother, also had been arrested on several occasions since 1986 for gathering shellfish in areas he claims were the usual and accustomed fishing grounds of the Suquamish tribe. On June 9, 1988, Judge James M. Riehl of the District Court of South Kitsap County, Washington, dismissed the charges against Philip, finding that he had a secured and reserved right under the Treaty of Point Elliott to harvest shellfish off the reservation in the usual and accustomed fishing grounds that were not staked or cultivated. Findings of Fact, Conclusions of Law and Order of Dismissal, Nos. 86-4729, 86-9120, 86-6604, 86-1432, 88-1485, 88-1486, 88-5601, and 88-5602, August 19, 1988, Excerpt of Record at tab 28, para. 1. The day after the charges were dismissed Philip was arrested again, along with Steven, while gathering shellfish in Manzanita Bay near Agate Pass.

The Holts then filed an action, No. C89-593R, pursuant to section 1983 in the Western District of Washington at Seattle against Kitsap County and the defendant/appellants, the six fisheries patrol officers.

On February 24, 1988, a Washington state citizen reported an oyster theft from his oyster farm near Tekiu Point, Washington. Fisheries Patrol Officers arrested John Romero and Dean Harvey, who are enrolled members of the Klallam tribe. They also arrested Dave Seaver, a non-Indian who participated in the oyster-gathering with Romero and Harvey. 4 The three were charged with second degree theft, possessing commercial quantities of shellfish without a health certificate, and transferring oysters without a required permit. A tribal police officer who was present cited Romero under tribal regulations as well.

On April 19, 1989, Romero, Harvey, and Seaver filed a complaint in the Western District of Washington, No. C89-592R, pursuant to section 1983 against Kitsap County and officers DeMiero and Charron, alleging, inter alia, that the arrests were in violation of their treaty rights. The Holt and Romero actions were consolidated by the court on November 17, 1989, into C89-592R.

The officers moved for summary judgment on grounds of qualified immunity. In the order denying the officers' motion, the district court stated:

At this stage of the action, plaintiffs have alleged and the court must accept as true facts supporting the existence of constitutional violations by the Officers which would disqualify them from the protection of ... immunity. Therefore, the Officers' motion on this issue must be denied.

Order Denying Plaintiffs' and Defendants' Motions for Summary Judgment, And Staying Certain Claims, No. C89-592R (W.D.Wash. May 9, 1990).


We review de novo the denial of a defense based on qualified immunity. White by White v. Pierce County, 797 F.2d 812, 814 (9th Cir.1986). We review the evidence in the light most favorable to the nonmoving party. Id.

Summary Judgment and Qualified Immunity

The defense of qualified immunity protects "government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). 5 Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by the plaintiff was not "clearly established" or the officer could have reasonably believed that his particular conduct was lawful.

The plaintiff bears the burden of proof that the right allegedly violated was clearly established at the time of the alleged misconduct. Baker, 887 F.2d at 186 (citing Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984)). If plaintiff carries this burden, then the officers must prove that their conduct was reasonable even though it might have violated constitutional standards. Benigni v. City of Hemut, 879 F.2d 473, 479-80 (9th Cir.1988) ("We have expressly held that good faith is an affirmative defense that a police officer must prove.").

The qualified immunity test necessitates three inquiries: (1) the identification of the specific right allegedly violated; (2) the determination of whether that right was so "clearly established" as to alert a reasonable officer to its constitutional parameters; and (3) the ultimate determination of whether a reasonable officer could have believed lawful the particular conduct at issue. Gooden v. Howard County, Md., 917 F.2d 1355, 1361 (4th Cir.1990); accord, Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir.1988) (the first inquiry is whether the law is clearly established given the facts of the case; the second inquiry is whether a reasonable person would have known that he was violating clearly established rights), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). The first two inquiries under Gooden present pure questions of law. Gooden, 917 F.2d at 1361. The third, although ultimately a legal question, may require some factual determinations as well. 6

The district court did not decide whether the law was clearly established. Instead, it looked to whether there were material issues of fact in dispute, which is the usual procedure in a motion for summary judgment. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986); Fed.R.Civ.P. 56(e). However, when qualified immunity is at stake, a court must first determine whether the law has been clearly established. Tribble, 860 F.2d at 324. If the court decides the law is clearly established, it must then decide whether a reasonable officer would have known that his conduct violated rights. Id. At the third step in the inquiry, it is within the court's discretion to permit limited discovery to determine if there are genuine issues of material fact surrounding the reasonableness of the officer's conduct. Cf. Gooden, 917 F.2d at 1361.

Whether the Officers Are Entitled To Qualified Immunity

The parties agree that the specific right allegedly violated is whether, under the treaties, members of Indian tribes have a right to take shellfish in non-reservation areas at their usual and accustomed fishing places. However, the parties disagree as to whether that right was clearly established when the arrests and citations occurred here.

The treaties themselves do not specifically delineate the Indians' right to take shellfish in such a way that the nature and scope of that right is readily apparent. Article 4 of the Treaty of Point No Point (Hahd-skus), Washington Territory, negotiated with the villages of the S'Klallams (Klallam) Indians and dated January 26, 1855, 12 Stat. 933 (1859), states only:

The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians, in common with all citizens of the United States; and of erecting temporary houses for the purpose of curing; together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.

Article 5 of the Treaty of Point Elliott (Muckl-te-oh), which was negotiated with the Suquamish and dated January 22, 1855, 12 Stat. 927 (1859) is identical, except that the common right "to take fish" is shared with "citizens of the Territory."

Given the extensive litigation that has taken place with respect to these articles to establish the Indian rights with respect to anadromous fish under the Stevens Treaties (of which the Treaties of Point No Point and Point Elliott are a part), see generally Fishing Vessel Ass'n, 443 U.S. at 661-74, 99 S.Ct. at 3062-68, we conclude that without litigation to establish similar rights to shellfish, those rights cannot be clearly...

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