The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
5 AT TACOMA
6 DAVID MISTACHKIN,
Case No. 3:25-cv-05902-TLF
7 Plaintiff,
v. ORDER ON CROSS MOTIONS
8 FOR SUMMARY JUDGMENT
DYLAN SPENCER ET AL,
9
Defendants.
10
11 The Court has considered the briefs, documents submitted with the briefs, the
12 audiovisual evidence, and the balance of the record. For the reasons discussed below,
13 defendant’s motion is granted, and plaintiff’s motion for partial summary judgment is
14 denied. Qualified immunity applies to all defendants because Mr. Mistachkin’s Fourth
15 Amendment rights were not violated.
16 AUDIOVISUAL EVIDENCE
17 Plaintiff placed videos into evidence of the body camera footage (“bodycam
18 footage”) from Deputy Dylan Spencer and Deputy Jeff Barbo. Dkt. 35, Declaration of
19 Joseph Shaeffer (“Shaeffer Decl.”), Ex. 2, 3, 9. Plaintiff has submitted a transcript; this
20 might be an aid to the jury but would not itself be evidence. Id. at Ex. 3; see United
21 States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998) (“When tapes are in English, they
22 normally constitute the actual evidence and transcripts are used only as aids to
23 understanding the tapes; the jury is instructed that if the tape and transcript vary, the
24
1 tape is controlling.”) (citing United States v. Turner, 528 F.2d 143, 167-68 (9th Cir.
2 1975), cert. denied, 429 U.S. 837 (1976)); Ninth Circuit Civil Model Jury Instruction 2.6
3 (advising the jury “bear in mind that the recording is the evidence, not the transcript. If
4 you [hear] something different from what [appears] in the transcript, what you heard is
5 controlling.”).
6 Defendants have also attached the audiovisual evidence to their declarations and
7 incorporated them by reference. Dkt. 24, 25, 26, 27, 31.
8 Deputy Spencer has adopted the statements he made in his report dated
9 February 12, 2024, at 21:37:57, in Case No. 24-002882. Dkt. 26, Declaration of Deputy
10 Dylan Spencer (“Spencer Decl.”) at 2, Ex. 1 at 6-9. On that date, at approximately 21:37
11 hours, he was driving a patrol car in an area known as Wynooche Valley Road. Id. at 8.
12 The speed limit on Wynooche Valley Road is 40 miles per hour. Id. In a pullout on the
13 westbound side of the road, Deputy Spencer noticed (as he was driving by) a red truck
14 with lights off, sitting in the pullout. Id. He drove past the truck one time, then returned to
15 the truck “to contact any occupants inside.” Id. He parked the patrol car behind the
16 truck; the lights of the patrol car were off. Id.
17 Deputy Spencer states that he did not block the red truck in, and the truck would
18 have “had an avenue of escape if it wanted to leave.” Id.
19 Deputy Spencer was later joined by Deputy Barbo. Id. at 8.
20 Deputy Barbo has adopted the statements he made in his report dated February
21 12, 2024, in Case No. 24-002882. Dkt. 27, Declaration of Deputy Jeff Barbo (“Barbo
22 Decl.”) at 2, Ex.1 at 5. Deputy Barbo received a call from Spencer “a few moments
23 after” 21:38 hours on February 12, 2024. Id. Deputy Sheriff Jeff Barbo worked for the
24
1 Grays Harbor Sheriff’s Office on February 12 and 13, 2024. Dkt. 27, Barbo Decl. at 2-3;
2 Dkt. 44, Supplemental Declaration of Deputy Jeff Barbo (“Barbo Supp. Decl.”) at 2-4.
3 Plaintiff placed the Barbo video into evidence, along with a transcript of the bodycam
4 footage from Deputy Barbo. Dkt. 35, Shaeffer Decl. at 1-2, Ex. 4, 5. The Court has not
5 reviewed the transcripts, because they are not evidence. Id. at 1-2, Ex. 3, 5; Ninth
6 Circuit Civil Model Jury Instruction 2.6.
7 • Audiovisual evidence from bodycam of Deputy Spencer
8 The recording of the first bodycam video taken by Deputy Spencer’s bodycam
9 shows a dark evening, a red pickup truck covered with spots of water, and what
10 appears to be steady rain; Deputy Spencer got out of his patrol car and approached the
11 driver’s side window of the red pickup. Dkt. 35, Shaeffer Decl. at 1, Ex. 2, at time stamp
12 21:38:19-28. Spencer shined a light into the driver’s side window. Id. Spencer greeted
13 the driver, told the driver his name and title, and stated, “it’s just an odd spot for
14 someone to be parking so I was just checking to make sure everything was okay.” Id. at
15 21:38:36. The driver said, “I’m totally fine, I’m just headed home, I just live right down
16 the street here.” Id. at 21:38:40. Spencer asked the driver where he lived, and the driver
17 responded with an address; Spencer then asked, “do you have your driver’s license on
18 you?” Id. at 21:38:47.
19 Deputy Spencer asked the driver if there is any reason he is pulled over there. Id.
20 at 21:38:50. The driver appears to be holding his driver’s license in his hand, and he
21 told Spencer that he’s taking a time out, and figured it was safe to pull over there. Id. at
22 21:38:57. The driver explained, “I’m just taking a moment, for myself.” Id. at 21:39:00.
23 The driver stated, “everything’s fine,” and Deputy Spencer responded, “I’ll be back in
24
1 just a second, okay?” and turned away from the driver to walk toward the patrol car. It is
2 unclear from the video whether Deputy Spencer has the driver’s license with him, but in
3 the audio, Deputy Spencer contacted another person and asked about Judge
4 Mistachkin’s first name. The person responded, and Spencer repeated, David Leonard
5 Mistachkin and tells them there’s not too many people by that name; Spencer asks the
6 person “are you able to come out to where I am?” Id. at 21:39:49. Deputy Spencer
7 stated that the driver is Judge Mistachkin, he is pulled over on the side of the road, said
8 he’s taking a time out, and “his eyes look blood shot watery.” Dkt. 35, Shaeffer Decl. at
9 1, Ex. 2 at 21:39:57.
10 Deputy Spencer made another call. Then Spencer walked back to the driver’s
11 side window of the pickup. Dkt. 35, Shaeffer Decl. at 1, Ex. 2 at time stamp 21:41:35–
12 38. Spencer told the driver that Spencer’s supervisor is on the way. Id. at 21:41:36–38.
13 Spencer asked the driver, “could you just turn off the vehicle for right now,” and then
14 Spencer says, “could I have the keys?” Id. at 21:41:44–46. Spencer said, “just so you
15 know, at this point you are just being detained obviously you are not under arrest or
16 anything like that.” Id. at 21:41:49–54. Spencer told the driver, “Your eyes are blood
17 shot watery, I can smell alcohol emanating from the vehicle. . .” Id. at 21:42:00–03. He
18 informed the driver that he is doing a DUI investigation. Id. at 21:42:00–04–06.
19 Deputy Spencer told plaintiff that if he passes field sobriety tests, he will be free
20 to go. Deputy Spencer further explained that based on the blood shot watery eyes, and
21 talking with plaintiff, he took the car keys for safety. Id. at 21:42:06–25. Plaintiff
22 responded, “I’m emotional”. Id. at 21:42:26–28. Plaintiff stated that “I thought it was
23 legal to park here,” and Spencer responded, “at no point did I say it was not legal to
24
1 park here, I just said. . ..” Id. at 21:42:28–54. Plaintiff responded, “I don’t understand
2 why you’re detaining me. Just because I’m parked here?” Id. at 21:42:54–59.
3 Deputy Spencer started to explain about why he was parking behind plaintiff’s
4 truck, not blocking the pickup “to where you had an avenue of escape,” and plaintiff
5 responded, “I don’t need to escape. I was just sitting here minding my own business”
6 Dkt. 35, Shaeffer Decl. at 1, Ex. 2 at 21:43:01–17.
7 Deputy Spencer said, “sir, I get it”, and “what I’m telling you is I pulled up behind
8 you, my lights aren’t on this isn’t a traffic stop,” and plaintiff asked, “so I’m free to
9 leave?” Id. at 21:43:19–28. Deputy Spencer responded, “no, not at this point because
10 I’m doing a DUI investigation,” and plaintiff told Deputy Spencer that plaintiff’s eyes look
11 that way because he was crying. Id. at 21:43:29–44. Deputy Spencer and plaintiff had a
12 conversation. Id. at 21:43:23–21:45:29. Deputy Spencer told plaintiff that his partner has
13 arrived, and Spencer reiterated that he is conducting a DUI investigation. Id. at
14 21:45:17–29.
15 Deputy Spencer walked back to the patrol cars (it appears his partner has arrived
16 in another patrol car, but this person is not identified) and talked with his partner. Deputy
17 Spencer said, “I was going to park here [in the same area where plaintiff had pulled to
18 the side of the road] to run radar.” Id. at 21:45:29–45. He told his partner that plaintiff
19 rolled down the window, he observed plaintiff’s eyes were blood shot and watery and
20 Deputy Spencer said he could smell a “faint odor of alcohol” coming from the vehicle. Id.
21 at 21:46:07–32. Spencer told his partner, “keys were in the ignition” and the car was
22 running before he took the keys from plaintiff. Id. at 21:47:19–22. Deputy Spencer then
23 told his partner, “I would assume cooperation.” Id. at 21:47:27–30. Deputy Spencer
24
1 talked with his partner about potentially moving to a different location to continue the
2 investigation and he stated that plaintiff told him he was emotional and that’s why his
3 eyes are watery. Id. at 21:47:50–54.
4 Deputy Spencer stated, “obviously at this point he’s being detained, I mean he’s
5 not going to leave, he can just wait there.” Dkt. 35, Shaeffer Decl. at 1, Ex. 2 at
6 21:48:01–29. The other officer walked toward the red pickup, on Deputy Spencer’s
7 suggestion, and Deputy Spencer stayed behind, near the police vehicles. Id. at 21:48:29
8 – :51:16.
9 When the other officer (later identified as Deputy Barbo in his own body camera
10 recording) came back, they discussed whether to do the voluntary field sobriety tests
11 there. Id. at 21:58:41. Deputy Spencer walked to the driver’s side of plaintiff’s truck and
12 asks whether he will voluntarily do the field sobriety tests; and plaintiff declines. Id. at
13 22:01:47 – 22:02:52. Deputy Spencer asked plaintiff to step out of the truck, handcuffs
14 were placed by Deputy Spencer on plaintiff (with hands behind his back), and Deputy
15 Spencer told plaintiff he is “just being detained at this point” and read plaintiff his rights.
16 Id. at 22:01:47 – 22:03:59. Deputy Spencer walked with plaintiff to his patrol car, and
17 asked plaintiff to be seated in the back. Id. at 22:04:50.
18 Deputy Spencer and Deputy Barbo opened the door to plaintiff’s truck, and
19 Deputy Spencer said he noticed a can in the door. Id. at 22:06:00. When Deputy Barbo
20 asked what it is, Deputy Spencer states, “it’s a cider.” Id. at 22:05:44 – 22:06:22. Deputy
21 Spencer stated that it is cider with alcohol; and it appears photographs were being
22 taken of the door. Id. at 22:06:22 – :06:51. Soon after, it appears that another officer
23 arrived but this is somewhat blurry on the video. Id. at 22:07:43.
24
1 The plaintiff was transported to the jail, and handcuffs were removed upon
2 arrival. Id. at 22:19:26.
3 The audiovisual evidence shows plaintiff texting on a cell phone. Id. at 22:20:32 –
4 :27:40. Mr. Mistachkin stated that his wife will pick him up. Id. at 22:27:40. A person who
5 is identified as a Washington State Patrol Trooper arrived and advised plaintiff of the
6 option of taking a breath test. Id. at 22:27:22 – 22:28:51. The trooper told Mr. Mistachkin
7 he is under arrest for driving under the influence or actual physical control of a vehicle
8 while under the influence. Id. at 22:27:22 – 22:28:51. Id.
9 The audiovisual evidence from Deputy Spencer’s body camera shows Mr.
10 Mistachkin at the jail, and he took the breathalyzer test after his attorney arrived. Dkt.
11 35, Shaeffer Decl. at 1, Ex. 9 at 23:52:33. The State Patrol Trooper gave Mr. Mistachkin
12 and his attorney the results and stated the result is .017. Id. at 23:54:31 – :55:06.
13 Deputy Spencer mis–stated the results as .117 in a phone call after he walked back to
14 the patrol car. Id. at 23:57:34 – :43.
15 Deputy Spencer walked back into the jail, and a few moments after midnight on
16 February 13, 2024, he informed Mr. Mistachkin and his attorney that he will be giving
17 him a citation for DUI and being in physical control of the vehicle. Id.at 2–13–2024,
18 0:00:01–:09. Upon being informed that the result was .017, Deputy Spencer stated that
19 his report will be filed and that will be the end of it; then confirmed that Mr. Mistachkin
20 has received his phone, wallet, and car keys. Id. at 0:01:09 – 02:19.
21 • Audiovisual evidence from bodycam of Deputy Barbo
22 Deputy Barbo’s body camera footage shows him arriving at the area where
23 Deputy Spencer is located; Deputy Barbo talked with Deputy Spencer (in this part, the
24
1 audio recording tracks the content described above from Deputy Spencer’s body
2 camera, which will not be repeated here). Dkt. 35, Shaeffer Decl. at 1, Ex. 4 at 21:42:28
3 – :52:08.
4 Deputy Barbo stated that he wonders if they should “call admin” to “get them in
5 the loop”, and Deputy Spencer suggested that before he calls admin, Deputy Barbo
6 should talk with plaintiff to “gauge on your end” so that Deputy Barbo could say that he
7 observed it, too; Barbo then walked to the driver’s side of plaintiff’s truck. Dkt. 35,
8 Shaeffer Decl. at 1, Ex. 4, at 21:48:21 – 49:25.
9 After Deputy Barbo introduced himself and talked with Mr. Mistachkin, plaintiff
10 told Deputy Barbo he had pulled over in a safe spot, was kind of emotional, and was
11 having some personal issues at home. Id. at 21:49:47– :53. Deputy Barbo told Mr.
12 Mistachkin that he is acting supervisor tonight. Id. at 21:50:16. Plaintiff stated that
13 Deputy Spencer had asked for his driver’s license, and he gave it to him, but he could
14 not understand why he was being detained because he was not doing anything wrong,
15 just was having a moment. Id. at 21:51:02. Plaintiff stated he is fine to drive, but could
16 give his wife a call, and Deputy Barbo responded, “we don’t need to call her yet.” Id. at
17 21:51:42 – 53:24. Plaintiff also mentioned he has ADHD and gets “amped up.” Id. at
18 21:51:51.
19 Deputy Barbo told plaintiff that he smells alcohol and asks whether he has an
20 open container with an alcoholic beverage or anything in his truck. Id. at 21:52:03 – :13.
21 Plaintiff responded that he and his spouse had a drink a couple of hours before while
22 they were in Olympia having dinner. Id. at 21:52:12 – :20.
23
24
1 Deputy Barbo walked back to the patrol car and possibly said (the recording is
2 not as loud here) “ya, definitely” to another person who appears to be Deputy Spencer.
3 Id. at 21:53:42–:46. Deputy Barbo placed a call and describes the situation to the
4 person receiving the call, and stated that “there is a definite odor of intoxicants coming
5 from within the truck,” stated that plaintiff’s words were “kind of stumbling”; referred to
6 the start of the events as being a suspicious vehicle; and that Deputy Spencer smelled
7 “booze on the breath” and “booze inside the truck,” and plaintiff had glassy eyes as
8 well. Id. at 21:54:46 –:57:17. The person on the other end of the phone call said, “it is
9 what it is”, stated that he is going to call the Sheriff, and suggested that a law
10 enforcement officer from another agency could be contacted to be there observing “if he
11 is giving you a lot of trouble”. Id. at 21:57:15– :29.
12 Then Deputy Barbo placed another call, and a law enforcement officer, referred
13 to by the name Elliott (later identified as Officer Elliott Nelson), was requested to join
14 them. Id. at 21:57:48 – 22:01:35. Deputy Barbo and Deputy Spencer walked to the
15 driver’s side of Mr. Mistachkin’s truck and asked whether he will participate in the field
16 sobriety tests. He declines, is handcuffed, and taken to the patrol car. (This portion of
17 the audiovisual has information similar to that described above for Deputy Spencer’s
18 body camera recording, but the audio is faint and the visual is blurry and will not be
19 repeated here).
20 After Officer Elliott arrived, Deputy Barbo described the situation to Officer Elliott.
21 Id. at 22:04:24 – 22:05:16. Deputy Barbo, Deputy Spencer, and Officer Elliott agreed
22 they will transport Mr. Mistachkin to the Sheriff’s office and jail to do a breathalyzer test.
23 Id. at 22:07:53 – 22:10:09. There was a suggestion that a trooper should be called to
24
1 help with the BAC, and Deputy Barbo stated that if plaintiff wants to talk with an
2 attorney, they will give him every opportunity. Id. at 22:09:29 – :55. Deputy Barbo
3 dictated a note, made calls, and contacted the state patrol “to assist with the BAC
4 process.” Id. at 22:12:15 – :14:53. The remainder of the audiovisual evidence from
5 Deputy Barbo’s body camera will not be recounted, as it documents events that
6 happened after Mr. Mistachkin arrived at the jail and the parties do not contend that
7 what happened at the jail (other than the BAC test result) is relevant to the issues.
8
9 DISCUSSION
10
11 A. Legal Standards
12 Summary judgment is supported if the materials in the record “show[] that there
13 is no genuine dispute as to any material fact and that the movant is entitled to judgment
14 as a matter of law.” Federal Rule of Civil Procedure (FRCP) 56 (a),(c). The moving party
15 bears the initial burden to demonstrate the absence of a genuine dispute of material fact
16 for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine dispute
17 concerning a material fact is presented when there is sufficient evidence for a
18 reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby,
19 Inc., 477 U.S. 242, 252 (1986). In this context, materiality means the fact is “relevant to
20 an element of a claim or defense and whose existence might affect the outcome of the
21 suit”; thus, materiality is “determined by the substantive law governing the claim.” T.W.
22 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
23
24
1 The non-moving party must show that genuine issues of material fact “’can be
2 resolved only by a finder of fact because they may reasonably be resolved in favor of
3 either party.’” California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc.,
4 818 F.2d 1466, 1468 (9th Cir. 1987) (quoting Anderson, 477 U.S. at 250) (emphasis in
5 original). To carry this burden, the moving party is not required to introduce any
6 affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
7 the absence of evidence to support the nonmoving party’s case. Fairbank v.
8 Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000). A nonmoving party’s
9 failure to comply with local rules in opposing a motion for summary judgment does not
10 relieve the moving party of its affirmative duty to demonstrate entitlement to judgment
11 as a matter of law. Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir. 2003).
12 When the Court considers a motion for summary judgment, “[t]he evidence of the
13 non-movant is to be believed, and all justifiable inferences are to be drawn in [their]
14 favor.” Anderson, 477 U.S. at 255. Yet the Court is not allowed to perform the jury’s
15 function – the Court may not weigh evidence, draw legitimate inferences from facts, or
16 decide credibility. Id.
17 • Audiovisual evidence
18 Factual allegations regarding events that are captured on video, when
19 uncontested, are viewed by the Court “in the light depicted by the videotape.” Scott v.
20 Harris, 550 U.S. 372, 380-81 (2007); Spencer v. Pew, 117 F.4th 1130, 1133 (9th Cir.
21 2024). If a party’s assertion of a fact is obviously contradicted by what is shown in a
22 video recording, a genuine issue of fact does not exist. Plumhoff v. Rickard, 572 U.S.
23 765, 777 (2014); Williams v. City of Sparks, 112 F.4th 635, 642 (9th Cir. 2024).
24
1 If the fact is unclear from the video, the Court views the evidence “in the light
2 most favorable to the nonmoving part[ies].” See Scott, 550 U.S. at 380; Hughes v.
3 Rodriguez, 31 F.4th 1211, 1219-20 (9th Cir. 2022) (“[W]hile we view the facts blatantly
4 contradicted by the bodycam footage in the light depicted by the videotape and its audio
5 to conclude that Hughes did not attempt to surrender to the officers, we must view all
6 other facts, including the allegation of the post-handcuff beating, in the light most
7 favorable to Hughes.”); Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir.
8 2018) (“The mere existence of video footage of the incident does not foreclose a
9 genuine factual dispute as to the reasonable inferences that can be drawn from that
10 footage.”).
11 Video evidence “alone [can] raise [ ] material questions of fact about the
12 reasonableness of [officers’] actions and the credibility of [the] post-hoc justification of
13 [their] conduct.” Longoria v. Pinal Cnty., 873 F.3d 699, 706 (9th Cir. 2017), cert denied,
14 138 S.Ct. 2601 (2018). The jury is the appropriate factfinder, not the Court on summary
15 judgment, as to the “probative value of real-time videos and frozen frames.” Id. at 706
16 n.5.
17 If video evidence is subject to different interpretations, the Court cannot decide at
18 summary judgment what the video shows, or what the camera successfully and
19 accurately captured or failed to capture. Aleman v. City of Charlotte, 80 F.4th 264, 292-
20 95 (4th Cir. 2023), cert denied, 144 S.Ct. 1032 (2024) (finding the trial court erred by
21 giving its own interpretation of the video evidence that was subject to interpretation, not
22 clear in all details, and did not capture everything at the summary judgment stage, when
23 that was a function reserved for the jury); see J. Sabatino, The Appellate Digital Deluge:
24
1 Addressing Challenges for Appellate Review Posed by the Rising Tide of Video and
2 Audio Recording Evidence, 96 Temple L. Rev. 11, 33-41, 46-49 (2023) (analyzing
3 probative value of video evidence, and whether such evidence should be reviewed by
4 the trier of fact rather than an appellate court or the Judge on summary judgment at the
5 trial court); D. Barry, Snap Judgment: Recognizing the Propriety and Pitfalls of Direct
6 Judicial Review of Audiovisual Evidence at Summary Judgment, 83 Fordham L. Rev.
7 3343, 3385-86 (2015) (emphasizing that a Judge may be putting themselves in the role
8 of the jury, and when a Judge is viewing audiovisual evidence they may be unaware of
9 reasons why a video does not always speak for itself and uncertain about the scrutiny
10 and legal tools that should be brought to the analysis).
11 • Fourth Amendment Standards
12 A seizure occurs “only if, in view of all the circumstances surrounding the
13 incident, a reasonable person would have believed that he was not free to leave.”
14 United States. v. Mendenhall, 446 U.S. at 554. The test for a show of authority is
15 objective: whether the officer’s acts, and words, would have conveyed to a reasonable
16 person that the person “was being ordered to restrict his movement.” California v.
17 Hodari D., 499 U.S. 621, 627-28 (1991).
18 If officers approach an individual in a car parked in a public place, no Fourth
19 Amendment seizure occurs when the officer identifies himself and poses questions if
20 the person is willing to listen. United States. v. Washington, 490 F.3d 765, 770 (9th Cir.
21 2007). Parking a police vehicle in a manner that does not block a suspect’s parked car,
22 getting out of the police car and walking to the suspect’s vehicle, is not a seizure. United
23 States v. Kim, 25 F.3d 1426, (9th Cir. 1994); United States. v. Pajari, 715 F.2d 1378,
24
1 1380-1382 (9th Cir. 1983). But an encounter “may evolve into a situation where the
2 individual’s ability to leave dissipates”. United States. v. Ayarza, 874 F.2d 647, 650 (9th
3 Cir. 1989).
4 To conduct a lawful pre-arrest investigatory stop, the detaining officer must have
5 a “particularized and objective basis for suspecting the particular person stopped of
6 criminal activity”, based on “the whole picture” of the totality of circumstances. United
7 States v. Cortez, 449 U.S. 411, 417-18 (1981). The Court must consider “the
8 governmental interest which allegedly justifies official intrusion upon the constitutionally
9 protected interests of the private citizen”, and to justify the specific intrusion, “the police
10 officer must be able to point to specific and articulable facts which, taken together with
11 rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio,
12 392 U.S. 1, 21 (1968).
13 The reasonable suspicion standard is less than probable cause or
14 preponderance of the evidence. United States v. Valdes-Vega, 738 F.3d 1074, 1078
15 (9th Cir. 2013) (en banc). When assessing reasonable suspicion, it is permissible for
16 officers to use knowledge and expertise they have developed in their work, to rely on
17 probabilities, and make “commonsense judgments and inferences about human
18 behavior.” Kansas v. Glover, 589 U.S. 376, 381, 383, 385 (2020). The Court considers
19 the totality of circumstances to review whether reasonable suspicion exists. Id. at 386.
20 Whether police detention of a suspect is an investigatory stop, or an arrest, is a
21 fact-specific inquiry. Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996). The
22 reviewing Court considers the totality of the circumstances, including “the intrusiveness
23 of the stop, i.e., the aggressiveness of the police methods and how much the plaintiff’s
24
1 liberty was restricted. . . and the justification for the use of such tactics, i.e., whether the
2 officer had sufficient basis to fear for his safety to warrant the intrusiveness of the action
3 taken.” Id. A seizure based on reasonable suspicion is different from a full-blown arrest;
4 to determine whether a person has been arrested, the Court considers “’whether a
5 reasonable person would believe that he or she is being subjected to more than a
6 temporary detention, as well as the justification for the use of such tactics, . . . whether
7 the officer had sufficient basis to fear for his safety to warrant the intrusiveness of the
8 action taken.’” United States v. Guerrero, 47 F.4th 984, 985 (9th Cir. 2022) (quoting
9 United States v. Brown, 996 F.3d 998, 1004 (9th Cir. 2021)).
10 Under Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001), “[i]f an officer has
11 probable cause to believe that an individual has committed even a very minor criminal
12 offense in his presence, he may, without violating the Fourth Amendment, arrest the
13 offender.” To be a valid warrantless arrest under the Fourth Amendment, the arrest
14 must be based on probable cause to believe the suspect has committed or is
15 committing a crime. Virginia v. Moore, 553 U.S. 164, 173 (2008).
16 To show probable cause existed, the evidence must “prove only that at the
17 moment of arrest the facts and circumstances within the knowledge of the arresting
18 officers and of which they had reasonably trustworthy information were sufficient to
19 warrant a prudent [person] in believing that the [suspect] had committed or was
20 committing an offense.” United States v. McCarty, 648 F.3d 820, 838 (9th Cir. 2011)
21 (internal quotation marks and citations omitted); see also, Johnson v. Barr, 79 F.4th
22 996, 1003-1004 (9th Cir. 2023) (holding that the existence of probable cause was a jury
23 question; but qualified immunity applied).
24
1 “Whether probable cause exists depends upon the reasonable conclusion to be
2 drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck
3 v. Alford, 543 U.S. 146, 152 (2004). “To determine whether an officer had probable
4 cause for an arrest, we examine the events leading up to the arrest, and then decide
5 whether these historical facts, viewed from the standpoint of an objectively reasonable
6 police officer, amount to probable cause. Because probable cause deals with
7 probabilities and depends on the totality of the circumstances, it is a fluid concept that is
8 not readily, or even usefully, reduced to a neat set of legal rules. It requires only a
9 probability or substantial chance of criminal activity, not an actual showing of such
10 activity. Probable cause is not a high bar.” District of Columbia v. Wesby, 583 U.S. 48,
11 56-57 (2018) (internal quotations and citations omitted); see also Miller v. City of
12 Scottsdale, 88 F.4th 800, 804 (9th Cir. 2023) (“For probable cause, officers may rely on
13 information gained by other officers under the ‘collective knowledge’ doctrine.”).
14 Probable cause is an objective standard. Devenpeck, 543 U.S. at 153; Whren v.
15 United States, 517 U.S. 806, 813 (1996). The Ninth Circuit recognized in Velazquez v.
16 City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015), that, to determine whether a
17 reasonable jury could have found lack of probable cause, the Court must “look to the
18 asserted crime for which the arrest took place.” Information acquired after the police
19 have arrested the suspect is irrelevant to the probable cause inquiry. Allen v. City of
20 Portland, 74 F.3d 232, 236 (9th Cir. 1996).
21 • State offenses at issue
22 Driving while under the influence is a crime under the Revised Code of
23 Washington (“RCW”) 46.61.502. As relevant here, Washington law provides that a
24
1 person drives under the influence if they drive while having 0.08 grams or more of
2 alcohol per 200 liters of breath, or if they drive while under the influence of or affected
3 by intoxicating liquor. RCW 46.61.50. Under appellate precedent from Washington State
4 courts, the phrase “under the influence of, or affected by” means “any influence which
5 lessens in any appreciable degree the ability of the accused to handle his automobile.”
6 State v. Hurd, 5 Wn.2d 308, 316 (1940); State v. Hansen, 15 Wn. App. 95, 97 (1976).
7 Proof of erratic driving is not required to convict of driving under the influence. State v.
8 Gillenwater, 96 Wash. App. 667, 670 (1999).
9 Being in physical control of a motor vehicle while under the influence is a lesser
10 offense of driving under the influence, because the elements of these offenses overlap,
11 the only additional element of driving under the influence is that the vehicle is in motion.
12 State v. Nguyen, 165 Wn.2d 428, 435-36 (2008). According to RCW 46.61.504(2) and
13 RCW 46.61.503, the defendant may have an affirmative defense if they can show by a
14 preponderance of evidence that, before being pursued by a law enforcement officer, the
15 person has moved the vehicle safely off the roadway. If the evidence supports this
16 defense, the defendant may raise it regardless which party presents the evidence. State
17 v. Votava, 149 Wn.2d 178, 183-85 (2003). This affirmative defense applies only to being
18 in physical control; it does not apply to DUI. A vehicle is considered safely off the
19 roadway when the situation no longer poses a threat to the public. Id.
20 Under Washington law an open container violation is a civil traffic infraction under
21 RCW 46.61.519 (2), (3). State v. Barwick, 66 Wn. App. 706, 709 (1992); see also, RCW
22 46.63.020 (classifying open container violations as civil infractions). Under some
23
24
1 circumstances an open container would be evidence of a DUI. United States v. Grote,
2 No. CR-08-6057-LRS, 2009 WL 2068023 (E.D. Wash. July 15, 2009).
3 B. Analysis
4 1. Defendants’ Motion for Summary Judgment
5 The individual defendants assert the affirmative defense of qualified immunity.
6 Dkt. 25 at 21-22.
7 Grays Harbor County, a municipality, asserts that the plaintiff has not shown any
8 genuine dispute of material fact as to municipal liability for a violation of the Fourth
9 Amendment. Dkt. 25 at 23-27.
10 Plaintiff argues the individual defendants are not entitled to qualified immunity
11 because there was clearly established law of which a reasonable person would have
12 known, and there are genuine disputes of material fact as to whether each defendant
13 violated plaintiff’s Fourth Amendment rights to be free from unreasonable seizure of his
14 person. Dkt. 42 at 2-15.
15 Plaintiff contends the Monell liability issues are not ripe for review on summary
16 judgment because the parties have not completed discovery. Id. 16- 23. Plaintiff also
17 argues that the Chief Criminal Deputy Jason Wecker personally participated in the
18 events, and allegations against him are in his individual capacity. Id. at 15-16.
19 • Initial Contact Did Not Constitute A Seizure
20 Plaintiff argues the seizure of Mr. Mistachkin occurred when he was initially
21 questioned by Deputy Spencer, and “[i]t should be plainly obvious to any reasonable
22 law enforcement officer that a car parked lawfully in an atypical spot is not evidence of
23 possible criminal activity.” Dkt. 41 at 8.
24
1 Viewing the evidence in the light most favorable to plaintiff, Deputy Spencer
2 observed plaintiff’s truck parked in a roadside pullout on Wynooche Valley Road during
3 a rainy evening. Dkt. 26, Spencer Decl., Ex. 1 at 8. Deputy Spencer drove past the
4 truck, returned, parked behind it without activating emergency lights, exited his patrol
5 vehicle, approached the driver’s-side window, and shined a flashlight into the vehicle.
6 Dkt. 35, Shaeffer Decl., Ex. 2 at 21:38:19-36.
7 Spencer introduced himself and explained that he was checking on plaintiff
8 because, “it’s just an odd spot for someone to be parking so I was just checking to make
9 sure everything was okay.” Id. at 21:38:36. Plaintiff responded that he was fine, was just
10 “I’m just taking a moment, for [himself].” Id. at 21:39:00. He stated he headed home and
11 lived nearby. Id. at 21:38:40. Deputy Spencer then asked where plaintiff lived and
12 requested identification. Id. at 21:38:47.
13 At this stage, no seizure occurred. The patrol vehicle’s emergency lights were not
14 activated, Deputy Spencer did not block plaintiff’s vehicle, and the encounter consisted
15 of questions regarding plaintiff’s welfare and identity. Deputy Spencer specifically stated
16 that plaintiff had an “avenue of escape” and was not blocked in. Dkt. 26, Spencer Decl.,
17 Ex. 1 at 8; Dkt. 35, Shaeffer Decl., Ex. 2 at 21:43:01-17. Only when a Fourth
18 Amendment seizure occurs does “the Constitution require some particularized and
19 objective justification.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). As the
20 Supreme Court has explained, “interrogation relating to one’s identity or a request for
21 identification by the police does not, by itself, constitute a Fourth Amendment seizure.”
22 INS v. Delgado, 466 U.S. 210, 216 (1985)(citing Florida v. Royer, 460 U.S. 491, 501
23 (1983)). The Washington Supreme Court has held it is not an unreasonable intrusion for
24
1 an officer to engage in conversation with a driver of a vehicle parked in a public space
2 because “[t]he occupant of a car does not have the same expectation of privacy in a
3 vehicle parked in a public place as he or she might have in a vehicle in a private
4 location.” State v. O'Neill, 148 Wash. 2d 564, 62 P.3d 489 (2003). Under clearly
5 established law, an officer’s approach to a parked vehicle, asking investigatory
6 questions of an occupant, and request for identification do not, without more, constitute
7 a Fourth Amendment seizure.
8 Plaintiff urges the Court to “hold as a matter of law that Deputy Spencer seized
9 Mr. Mistachkin when he walked away with his driver’s license.” Dkt. 54 at 4. For the
10 purpose of defendants’ motion, defendants accepted that assertion. Dkt. 53 at 6.
11 Accordingly, for purposes of this motion, the court assumes a seizure occurred when
12 Deputy Spencer walked away with plaintiff’s driver’s license and analyzes whether
13 Deputy Spencer possessed reasonable suspicion sufficient to justify the detention.
14 • Deputy Spencer Had Reasonable Suspicion to Conduct a DUI
15 Investigation
16 To conduct a lawful pre-arrest investigatory stop, the detaining officer must have a
17 “particularized and objective basis for suspecting the particular person stopped of
18 criminal activity”, based on “the whole picture” of the totality of circumstances. United
19 States v. Cortez, 449 U.S. 411, 417-18 (1981). Court’s must consider “the ‘whole
20 picture,’” including any “commonsense judgments and inferences about human
21 behavior.” Dist. of Columbia v. R.W., 146 S. Ct. 1069, 1071-72 (2026) (quoting Cortez,
22 449 U.S at 417). “[R]easonable suspicion ‘need not rule out the possibility of innocent
23 conduct.’” Navarette v. California, 572 U.S. 393, 397 (2014) (quoting United States v.
24
1 Arvizu, 534 U.S. 266, 277 (2002)). Viewing the evidence in the light most favorable to
2 plaintiff, before Deputy Spencer walked back to the truck to inform plaintiff that he was
3 being detained for a DUI investigation, he knew the following:
4 • Plaintiff was seated in the driver’s seat of a running vehicle parked
5 alongside the roadway at night in rainy conditions. Dkt. 35, Shaeffer Decl.,
6 Ex. 2 at 21:41:44-46; 21:47:19-22.
7 • Mistachkin had rolled down his window only slightly. Dkt. 26, Spencer
8 Decl., Ex. 2 at 00:39.
9 • Spencer observed that plaintiff’s eyes appeared “blood shot, watery.” Id. at
10 21:39:57; 21:42:00-03.
11 • Spencer stated he could smell alcohol emanating from the vehicle. Id. at
12 21:42:00-03.
13 • Plaintiff stated that he had pulled over to “take a time out” and “take a
14 moment” for himself. Id. at 21:38:57-21:39:00.
15 The evidence shows that before Deputy Spencer walked away with plaintiff’s
16 license, he had observed several indicators potentially consistent with impairment.
17 Deputy Spencer told the plaintiff, “Your eyes are blood shot watery, I can smell alcohol
18 emanating from the vehicle. . .” Dkt. 35, Shaeffer Decl. at 1, Ex. 2 at 21:42:00–03. He
19 informed Mistachkin that he was going to conduct a DUI investigation. Id. at 21:42:00–
20 04–06. Although plaintiff offered an innocent explanation for his appearance, explaining
21 that he was emotional and had been crying (Id. at 21:42:26-28; 21:43:29-44, reasonable
22
23
24
1 suspicion does not require officers to eliminate innocent explanations before continuing
2 an investigation.
3 Considering the totality of the circumstances, Deputy Spencer had reasonable
4 suspicion to investigate whether plaintiff was impaired. The combination of bloodshot
5 and watery eyes, the odor of alcohol, plaintiff’s presence in the driver’s seat of a running
6 vehicle, and the total circumstances of the encounter provided an objectively
7 reasonable basis to conduct a brief DUI investigation. The facts known to Deputy
8 Spencer at the time he retained plaintiff’s driver’s license were sufficient to establish
9 reasonable suspicion that plaintiff may have been driving or in physical control of a
10 motor vehicle while under the influence.
11 • Deputy Spencer and Barbro had Probable Cause
12 A traffic stop based on reasonable suspicion is different from a full-blown arrest;
13 to determine whether a person has been arrested, the Court considers “’whether a
14 reasonable person would believe that he or she is being subjected to more than a
15 temporary detention, as well as the justification for the use of such tactics, . . . whether
16 the officer had sufficient basis to fear for his safety to warrant the intrusiveness of the
17 action taken.’” United States v. Guerrero, 47 F.4th at 985.
18 “An arrest without a search warrant ... [is] valid if the arrest is based on probable
19 cause.” United States v. Bernard, 623 F.2d 551, 558–59 (9th Cir. 1979). Probable cause
20 requires that “at the moment of arrest the facts and circumstances within the knowledge
21 of the arresting officers ‘and of which they had reasonably trustworthy information were
22 sufficient to warrant a prudent man in believing that the petitioner had committed or was
23 committing an offense.’” Id. at 559 (quoting Beck v. Ohio, 379 U.S. 89, 91(1964)). In
24
1 applying the Beck standard, the reviewing court “must consider all the facts known to
2 the officers ... before the arrest.” United States v. Martin, 509 F.2d 1211, 1213 (9th Cir.
3 1975). This is a totality of the circumstances test. United States v. Cortez, 449 U.S. 411,
4 417 (1981). The determination of whether probable cause existed is an issue of fact to
5 be analyzed separately given each case's unique set of facts. Martin, 509 F.2d at 1213.
6 For the purposes of defendants’ motion, plaintiff was arrested when he was
7 ordered out of the vehicle and handcuffed. Dkt. 53 at 2.
8 To determine whether a reasonable jury could have found lack of probable
9 cause, the Court must “look to the asserted crime for which the arrest took place.”
10 Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015). The relevant
11 question is, viewing the evidence in the light most favorable to the plaintiff, is not
12 whether plaintiff ultimately violated RCW 46.61.502 or RCW 46.61.504, but whether the
13 facts known to Deputies Spencer and Barbo at the time plaintiff was handcuffed were
14 sufficient to warrant a prudent officer in believing that plaintiff had driven, or was in
15 actual physical control of, a motor vehicle while under the influence of alcohol. Bernard,
16 623 F.2d 551 at 559. In Washington courts, “under the influence of, or affected by”
17 means “any influence which lessens in any appreciable degree the ability of the
18 accused to handle his automobile.” State v. Hurd, 5 Wn.2d 308, 316 (1940); State v.
19 Hansen, 15 Wn. App. 95, 97 (1976).
20 Viewing the evidence in plaintiff’s favor, the following facts were known to
21 Deputies Spencer and Barbo before plaintiff was handcuffed:
22
23
24
1 • Plaintiff was seated in the driver’s seat of a vehicle parked alongside the
2 roadway with the engine running and keys in the ignition at night in rainy
3 conditions. Dkt. 35, Shaeffer Decl., Ex. 2 at 21:47:19-22.
4 • Deputy Spencer observed plaintiff’s eyes to be bloodshot and watery. Id.
5 at 21:39:57; 21:42:00-03.
6 • Deputy Spencer reported smelling alcohol emanating from the vehicle and
7 later described a faint odor of alcohol. Id. at 21:42:00-03; 21:46:07-32.
8 • Deputy Barbo independently reported smelling alcohol and later described
9 a “definite odor of intoxicants coming from within the truck.” Dkt. 35,
10 Shaeffer Decl., Ex. 4 at 21:52:03-13; 21:54:46-57:17. He stated that
11 plaintiff had glassy eyes as well. Id. at 21:54:46 –:57:17.
12 • Plaintiff admitted that he and his spouse had consumed alcohol a few
13 hours earlier while at dinner in Olympia. Id. at 21:52:12-20.
14 • Plaintiff offered to call his wife and stated she could drive. Id. at 21:51:42-
15 53:24.
16
• Plaintiff declined to participate in field sobriety testing after Deputy
17
Spencer told plaintiff that if he passes field sobriety tests, he will be free to
18
go. Dkt. 35, Shaeffer Decl. at 1, Ex. 2 at 21:42:06–25; Dkt. 35, Shaeffer
19
Decl., Ex. 2 at 22:01:47-22:02:52.
20
Although Deputy Barbo described plaintiff’s words as “kind of stumbling,” the
21
Court’s review of the recordings does not either confirm or reject the assertion of
22
stumbling speech, and the Court therefore does not rely on that characterization. Dkt.
23
35, Shaeffer Decl., Ex. 4 at 21:54:46-57:17. The record also does not establish when or
24
1 if the deputies became aware of any discrepancy between the address plaintiff verbally
2 provided and the address listed on his driver’s license. Dkt. 53 at 14-15. Accordingly,
3 the Court does not consider those circumstances in evaluating probable cause. The
4 Court confines its analysis to facts that were undisputedly known to the deputies before
5 plaintiff was handcuffed.
6 Washington courts have recognized that indicators such as the odor of alcohol,
7 blood shot or water eyes, admission of alcohol consumption, and other manifestations
8 of impairment may collectively establish probable cause for a DUI arrest. The Ninth
9 Circuit has also relied on these facts. See Williams v. Seals, No. 18-15059, 2020 WL
10 1066051, at *511 (9th Cir. Mar. 5, 2020) (holding probable cause existed when plaintiff
11 refused to take a field sobriety test and was arrested on suspicion DUI, noting that “the
12 Officers’ statements also contained details about [defendant’s] appearance, including
13 his bloodshot eyes, and their perception that he smelled of alcohol.”)
14 In State v. Martines, the Washington Supreme Court held officers had probable
15 cause to believe a DUI suspect was under the influence of intoxicants where the (1)
16 defendant smelled of alcohol, (2) admitted to drinking one beer, (3) hid empty beer
17 bottles, (4) had bloodshot, watery eyes, (5) a flushed face, and (6) walked in a slow, off-
18 balance manner. 184 Wash.2d 83, 91-92 (2015). The odor of alcohol on a person’s
19 breath or person is a recognized indicator supporting further investigation, as are watery
20 or bloodshot eyes. State v. Cerrillo, 122 Wash. App. 341, 351-52 (2004) (holding a
21 “reasonable person would agree with [officer] that the smell of alcohol emanating from
22 [defendant] during the first encounter indicated that [defendant] likely was under the
23 influence of alcohol); State v. Griffith, 61 Wash. App. 35, 38-39 (1991)(after witnessing
24
1 erratic driving and conducting sobriety tests, officer also observed watery, bloodshot
2 eyes, slurred speech, and a strong odor of intoxicants.). Although bloodshot or watery
3 eyes may have innocent explanations and some authorities have questioned their
4 reliability as standalone indicators of impairment, Washington courts continue to
5 consider them among the facts relevant to the probable-cause analysis. Id.; but see,
6 NHTSA, The Detection of DWI at BACs Below 0.10, September 1997, DOT HS 808 654
7 (NHTSA eliminated bloodshot eyes and a flushed face as possible objective indicia of
8 alcohol impairment because such factors are subjective and correlate more with factors
9 other than alcohol consumption.)).
10 At the same time, Washington law requires there must be more than simply the
11 odor of alcohol and driving for the officer to have probable cause to arrest for DUI. In
12 State v. Gillenwater, the Court of Appeals concluded probable cause existed to arrest in
13 a fatal accident that was not the suspect’s fault where the driver smelled of beer, had a
14 cooler containing beer, and three opened beer cans were found in the vehicle, and
15 “most importantly, the paramedic report a strong odor of alcohol” on the driver, even
16 though officers did not administer field sobriety tests and the driver did not exhibit
17 slurred speech or bloodshot eyes and a witness told officers the suspect had been
18 travelling at the speed limit and was not driving erratically. State v. Gillenwater, 96
19 Wash. App. 667, 670-71 (1999). The court explained that, while those facts did not
20 establish guilt beyond a reasonable doubt, they provided a sufficient basis to warrant a
21 cautious person in believing the offense had been committed. Id. at 671. Thus, there
22
23
24
1 must be some combination of facts beyond the mere odor of alcohol and operation of a
2 vehicle to establish probable cause for a DUI arrest.
3 Similar principles apply to the offense of being in actual physical control of a
4 motor vehicle while under the influence. Probable cause may exist where a driver
5 appears to be intoxicated because there is a smell of alcohol in the vehicle, as well as
6 on defendant’s breath, and is seated in the driver’s seat of a vehicle with the engine
7 running. State v. Reid, 98 Wash. App. 152, 160 (1999)(holding officer could arrest
8 defendant without a warrant because he had probable cause; defendant was asleep on
9 the side of a car that had its engine running, parked three feet off the roadway on the
10 shoulder of a highway, refused a sobriety test, and officer had to turn off the ignition).;
11 City of Spokane v. Badeaux, 20 Wash. App. 731, 734 (1978)( defendant’s “intoxication,
12 coupled with the running engine of his automobile, provided the officer with probable
13 cause to believe that [defendant] was in actual physical control of a vehicle while under
14 the influence of intoxicating liquor.”).
15 Plaintiff argues that innocent explanation existed for some of these observations,
16 including that his eyes appeared watery because had been emotional and that his last
17 drink had been at dinner two hours ago. However, probable cause does not require
18 officers to rule out innocent explanations before making an arrest. Dist. of Columbia v.
19 R.W., 146 S. Ct. 1069, 1072-73 (2026). The relevant inquiry is whether the facts known
20 to the officers would warrant a reasonable belief that an offense had occurred – the
21 Court must evaluate the totality of the circumstances rather than viewing each fact in
22 isolation.
23 Considering the totality of the circumstances known to Deputies Spencer and
24
1 Barbo at the time of arrest, the officer had probable cause to arrest Mistachkin. Even
2 accepting plaintiff’s explanation for some of the observed indicators, the combination of
3 the odor of alcohol, bloodshot and watery eyes, admission of alcohol consumption,
4 operation or actual physical control of a running vehicle, and refusal to perform field
5 sobriety testing provided sufficient facts to warrant a prudent officer in believing that
6 plaintiff had been driving or was in actual physical control of a vehicle while under the
7 influence of alcohol. See United States v. Tyndal, 172 F. App'x 741, 742 (9th Cir. 2006)
8 (holding police officers had probable cause to arrest defendant who was detained
9 initially in a Terry stop and admitted he had driven into the parking and had his license
10 suspended once he refused to perform field sobriety tests.).
11 Accordingly, defendants are entitled to summary judgment on plaintiff’s claim that
12 he was arrested without probable cause.
13 • Qualified Immunity as to Individual Defendants
14 Unless plaintiff makes a two-part showing, qualified immunity shields government
15 officials from liability. The plaintiff must show both: the official(s) violated a federal
16 statutory or constitutional right, and — at the time of the alleged act or failure to act
17 there was clearly established law that defined the contours of the federal right
18 objectively putting the official(s) on notice – i.e., every reasonable official would
19 understand that what they are doing is unlawful. District of Columbia v. Wesby, 138
20 S.Ct. 577, 589 (2018). Qualified immunity is an immunity from suit, and immunity
21
22
23
24
1 questions should be resolved at the earliest possible stage. Cmty. House, Inc. v. City of
2 Boise, Idaho, 623 F.3d 945, 964 (9th Cir. 2010).
3 When qualified immunity is reviewed in the context of a defense motion for
4 summary judgment, the evidence must be considered in the light most favorable to the
5 plaintiff with respect to central facts. Tolan v. Cotton, 572 U.S. 650, 657 (2014) (per
6 curiam). “[S]ummary judgment based on qualified immunity should be denied if under
7 the plaintiff’s version of the facts the officer could not reasonably believe his conduct
8 was lawful.” Knox v. Southwest Airlines, 124 F.3d 1103, 1108 (9th Cir. 1997).
9 Here, there was no violation of a federal statutory or constitutional right, and
10 qualified immunity shields the officers from immunity.
11 • Chief Criminal Deputy Wecker is Entitled to Qualified Immunity
12 Plaintiff argues defendants rely on the wrong legal standard in seeking dismissal
13 of Chief Wecker. Plaintiff argues Chief Wecker’s liability does not arise under
14 supervisory liability, but under the Ninth Circuit’s “integral participant” doctrine. Dkt. 49
15 at 11 (“Mr. Mistachkin has not argued that Chief Wecker is liable under the rubric of
16 Monell supervisory liability, which was at issue in Olson v. County of Grant. Olson, 127
17 F.4th 1193, 1197 (9th Cir. 2025). Instead, Mr. Mistachkin argues that Chief Wecker is
18 individually liable for Mr. Mistachkin’s unlawful seizure.”).
19 Under the “integral participant” doctrine, section 1983 liability extends to those
20 who perform functions “integral” to an alleged violation, even if their individual actions
21 do not themselves rise to the level of a constitutional violation. See Bravo v. City of
22 Santa Maria, 665 F.3d 1076 (9th Cir. 2011) (agents of a sheriff's office that did not
23 search a particular home were deemed not to be integral participants in the
24
1 unreasonable search of the home by other law enforcement officers). Ninth Circuit
2 precedent has permitted liability in situations where: “(1) the defendant knew about and
3 acquiesced in the constitutionally defective conduct as part of a common plan with
4 those whose conduct constituted the violation, or (2) the defendant set in motion a
5 series of acts by others which the defendant knew or reasonably should have known
6 would cause others to inflict the constitutional injury.” Peck v. Montoya, 51 F.4th 877,
7 891 (9th Cir. 2022). The doctrine does not implicate officers that are “mere bystanders.”
8 Id. at 889.
9 In Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008), the Court found
10 no evidence of integral participation where there was no evidence a detective instructed
11 other detectives to arrest plaintiff or evidence other law enforcement officers consulted
12 with the detective before making the arrest. By contrast, in Boyd v. Benton County, 374
13 F.3d 773, 780 (9th Cir. 2004), officers who participated in the search of an occupied
14 dwelling where other officers deployed a flash-bang device without warning were
15 integral participants because they were aware of the decision to use the device, did not
16 object to it, and participated in the operation knowing about the plan. Similarly, in
17 Reynaga Hernandez v. Skinner, 969 F.3d 930, 941-42 (9th Cir. 2020), a case that
18 involved an arrest that was unlawfully conducted without probable cause, the Court held
19 that an officer who had ordered plaintiff be “picked up” was an integral participant in the
20 unlawful arrest because the officer’s order caused the arrest, and the officer knew the
21 order would cause an unlawful arrest because the officer had no basis for believing
22 there was probable cause. And in Nicholson v. City of Los Angeles, 935 F.3d 685, 692
23 (9th Cir. 2019), the Court held an officer liable as an integral participant in an unlawfully
24
1 prolonged detention because he was the initial officer who set the events in motion and
2 either instructed the arrest of plaintiffs or consulted officers regarding the decision to
3 arrest.
4 Plaintiff contends that Chief Wecker was an integral participant in the alleged
5 unlawful seizure because he was informed of the deputies’ intent to arrest plaintiff and
6 “gave the deputies approval to continue their DUI investigation and to place Judge
7 Mistachkin under arrest if they saw it fit to do so.” Dkt. 14, Amended Complaint at 5;
8 Dkt. 41 at 16 (citing Dkt. 32 at 4:6–5:12). According to plaintiff, Chief Wecker effectively
9 authorized the arrest when he responded “it is what it is” after learning the deputies
10 intended to arrest plaintiff if he refused to submit to field sobriety testing. Dkt. 49 at 11
11 (citing Dkt. 35-5 at 7 (20:20–25)). Plaintiff further contends that the deputies’ decision to
12 consult Chief Wecker before making the arrest supports a finding that he participated in
13 the decision-making process and thereby played an integral role in the seizure. Id.
14 Defendants argue the “integral participant” doctrine claim is inapplicable because
15 Deputies Spencer and Barbo are entitled to qualified immunity, and cases cited by
16 plaintiff “do not establish ‘beyond debate’ that a supervisor located miles away from a
17 roadside investigation becomes liable merely by receiving a phone call advising that on-
18 scene officers intend to investigate a suspected DUI.” Dkt. 49 at 11. Defendants
19 emphasize that Chief Wecker was not on the scene and cite to his declaration stating
20 that he “was not present during any of the interactions” and that he later learned plaintiff
21 had been taken into custody only by text message. Id. (citing Dkt. 28 ¶¶ 2–3).
22 According to defendants, plaintiff offers no evidence contradicting this
23 declaration, and the video confirms that when Deputy Barbo spoke with Chief Wecker,
24
1 he reported that plaintiff was “being detained,” “not under arrest at this point,” and that
2 the deputies intended to “go through it like a normal DUI.” Dkt. 49 at 11 (citing Dkt. 35-5
3 at 7 (20:20–25)).
4 The audiovisual evidence reflects that after arriving on scene Deputy Barbo
5 contacted Chief Wecker and stated they “found a suspicious vehicle,” that “inside the
6 vehicle is Judge Mistachkin,” that “the truck was running,” and that Mistachkin “appears
7 to be under the influence” and was “a bit argumentative.” Deputy Barbo further relayed
8 that plaintiff claimed he had been crying, which he said explained his red and watery
9 eyes, but that there was a “definite odor of intoxicants” coming from the vehicle and that
10 plaintiff had admitted to having a drink with his wife about two hours earlier. In
11 response, Chief Wecker stated, “it is what it is,” and that he would advise Sheriff Darrin
12 Wallace about the situation. He also suggested that Deputies Barbo and Spencer call
13 another agency if plaintiff remained argumentative. See Dkt. 27, Deputy Jeff Barbo, Ex.
14 2 at 15:37–16:02. Deputy Barbo subsequently requested that dispatch send a
15 Montesano police officer, Officer Elliot Nelson, to assist. Id. at 17:17–19:21.
16 As discussed above, the Court views the evidence “in the light depicted by the
17 videotape”, because this is uncontested audiovisual evidence. Scott v. Harris, 550 U.S.
18 372, 380-81 (2007); Spencer v. Pew, 117 F.4th 1130, 1133 (9th Cir. 2024).
19 The evidence shows that Chief Wecker’s brief conversation with Deputy Barbo
20 Chief Wecker did not convey to Deputy Barbo any assessment or opinion about
21 whether there was, or was not, reasonable suspicion or probable cause at a given point
22 in time. He did not direct Deputy Barbo to act or refrain from acting in any particular
23 way; Chief Wecker is therefore not an integral participant. There are no genuine
24
1 disputes of material fact that a jury should decide, and no clearly established law in
2 existence at the time that would have alerted Chief Wecker that his conversation with
3 Deputy Barbo would be such that “every reasonable official would have understood that
4 what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Chief
5 Wecker is entitled to qualified immunity because he did not direct or encourage the
6 other officers to detain or arrest plaintiff. Under Torres v. City of Los Angeles, 548 F.3d
7 1197 (9th Cir. 2008), qualified immunity applies, and the claims against Chief Wecker
8 are dismissed.
9 • Municipal Liability of Grays Harbor County
10 Defendants argue that defendant Grays Harbor County should be dismissed
11 because there is allegedly insufficient evidence of ratification by final policymakers or
12 any deliberately indifferent custom and practice so widespread to constitute policy under
13 Monell v. Dep’t of Soc. & Health Services, 436 U.S. 658 (1978). Dkt. 41 at 17. Because
14 there was no constitutional violation, municipal liability does not attach. The Court
15 grants defendant’s motion for summary judgment on municipal liability.
16 CONCLUSION
17 For these reasons, Defendants’ motion for summary judgment GRANTED.
18 Plaintiff’s motion for partial summary judgment is DENIED.
19
20 Dated this 13th day of July, 2026
21
A
22
Theresa L. Fricke
United States Magistrate Judge
23
24