explaining 17 that “state immunity . . . and the qualified immunity available under . . . § 1983” are different: “the 18 three-part test set out by [state law] is not the standard used in § 1983 actions which is based upon 19 whether or not the constitutional right allegedly violated was clearly established at the time”
How later courts described this case
- explaining 17 that “state immunity . . . and the qualified immunity available under . . . § 1983” are different: “the 18 three-part test set out by [state law] is not the standard used in § 1983 actions which is based upon 19 whether or not the constitutional right allegedly violated was clearly established at the time”
- holding that state qualified immunity is not available “for claims of assault and battery arising out of the use of excessive force to effectuate an arrest”
- finding that the exceptions to the presence requirement under RCW 10.31.100 are exclusive
- holding that state qualified immunity does not bar state claims for assault and battery when excessive force is used in effectuating an arrest
Written by the judges who cited it.
The opinion
Madsen, J.
(concurring/dissenting) — I agree with the majority that summary judgment was improperly granted on Staat’s 42 U.S.C. § 1983 claim alleging the use of exces *783 sive use of force by Officer Brown. In addition, the majority appropriately concludes that Staats has sufficiently argued his claim that his home was illegally searched and that this claim is actionable under 42 U.S.C. § 1983 .
I agree with Justices Johnson and Talmadge, however, that the majority misstates the law regarding the authority of a fish and wildlife officer. As they explain, former RCW 75.10.020(2) (1992) 13 authorized a fish and wildlife officer to arrest an individual believed to have committed a misdemeanor violation of Title 75 RCW whether the violation occurred within or outside the presence of the officer.
Turning to the question whether there is a cause of action for unlawful arrest, Staats was arrested for violating former RCW 75.10.040(3) (1992). 14 That statute provided that it is unlawful to knowingly or willfully obstruct a fisheries patrol officer in the discharge of official duties. Staats had commenced construction without a permit and was in continuing violation of former RCW 75.20.100 (1992) (a gross misdemeanor). Officer Brown was therefore entitled to issue a citation for this violation, and was engaged in this official duty when Staats refused to provide the information necessary for Brown to issue the citation. Accordingly, Officer Brown had probable cause to arrest Staats for a violation of former RCW 75.10.040(3) because Staats obstructed Brown’s issuance of the citation. Brown had authority to arrest Staats. Thus, there was no unlawful arrest on which to premise a cause of action either under 42 U.S.C. § 1983 or state tort law.
For these reasons, I concur in part and dissent in part.
Repealed by Laws of 1998, ch. 190, § 124.
Id.