Chad Bock v. State of Washington

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHAD BOCK, a single man; NATHAN No. 21-35182

BOCK,

Plaintiffs-Appellants, D.C. No.

2:19-cv-00308-

v. SAB

STATE OF WASHINGTON;

WASHINGTON DEPARTMENT OF FISH OPINION

AND WILDLIFE; JOLYNN

BEAUCHENE, WDFW Officer; MIKE

SPRECHER, WDFW Sargent; DAN

RAHN, WDFW Captain; JESSE

JONES,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Washington

Stanley A. Bastian, Chief District Judge, Presiding

Argued and Submitted December 9, 2021

Seattle, Washington

Filed May 9, 2022

2 BOCK V. STATE OF WASHINGTON

Before: M. Margaret McKeown and Bridget S. Bade,

Circuit Judges, and Sidney A. Fitzwater, * District Judge.

Opinion by Judge McKeown

SUMMARY **

Civil Rights

The panel dismissed a due process claim as moot and

affirmed the district court’s entry of judgment with respect

to the constitutionality of Washington State’s forfeiture

statute in an action arising from unlawful hunting in British

Columbia that led authorities in Washington to seize almost

$200,000 worth of wildlife and animal parts from plaintiffs

and to charge them with illegal possession of these parts.

After the Spokane County prosecutor filed charges

against plaintiffs pursuant to Wash. Rev. Code § 77.15.265,

plaintiffs entered into a Stipulation to Police Reports and

Order of Continuance (“SOC”), which provided that the

charges would be dismissed if plaintiffs complied with

certain terms, including waiving the right to contest the

evidence against them. Under Washington’s wildlife

forfeiture statute, the entry of an SOC also resulted in the

forfeiture of the wildlife and animal parts at issue. Plaintiffs

successfully completed their SOCs, and the charges against

The Honorable Sidney A. Fitzwater, United States District Judge

*

for the Northern District of Texas, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

BOCK V. STATE OF WASHINGTON 3

them were dismissed. They brought suit alleging that the

forfeiture and transfer of their property to Canada, without

notice or a hearing, functionally destroyed their property

interests, thus depriving them of due process. The district

court rejected plaintiffs’ arguments that the automatic

forfeiture statute was unconstitutional as applied to wildlife

taken outside of Washington or that the statute

unconstitutionally deprived plaintiffs of property without

notice of a hearing.

The panel held that because plaintiffs signed the SOCs,

which triggered the automatic forfeiture, their suit for

recovery of the forfeited property was moot. To the extent

plaintiffs’ constitutional claims hinged on their argument

that the seized property was not contraband, these claims

were also mooted by the plaintiffs’ agreement to forfeiture.

In the alternative, plaintiffs’ suit would also fail on standing

grounds. Even if plaintiffs had a property interest in the

seized wildlife parts protected by the Fourteenth

Amendment at the time the parts were transferred, they gave

up that interest by agreeing to the ultimate forfeiture of the

items to the state; plaintiffs therefore could not maintain a

concrete injury as a result of the transfer to British Columbia.

The panel rejected plaintiffs’ argument that

Washington’s wildlife forfeiture statute was

unconstitutional. The panel concluded that, while the

existence of a state law authorizing a seizure does not

immunize that seizure from constitutional scrutiny, plaintiffs

were estopped from raising this argument. In signing the

SOCs, plaintiffs agreed to the statutorily mandated

consequence of forfeiture of the seized materials, pursuant

to Wash. Rev. Code § 77.15.100(3).

4 BOCK V. STATE OF WASHINGTON

COUNSEL

Breean L. Beggs (argued), Paukert & Troppmann PLLC,

Spokane, Washington; Morgan C. Maxey and Mark J.

Harris, Maxey Law Offices PLLC, Spokane, Washington;

for Plaintiffs-Appellants.

Alicia Orlena Young (argued) and Katie Merrill, Assistant

Attorneys General; Robert W. Ferguson, Attorney General;

Office of the Attorney General, Olympia, Washington; for

Defendants-Appellees State of Washington, Washington

Department of Fish and Wildlife, Jolynn Beauchene, Mike

Sprecher, and Dan Rahn.

Paul Gill, HPG PLLC, Seattle, Washington, for Defendant-

Appellee Jesse Jones.

OPINION

McKEOWN, Circuit Judge:

This case arises from unlawful hunting in British

Columbia that led authorities in Washington State to seize

almost $200,000 worth of wildlife and animal parts from two

Washington residents and charge them with illegal

possession of these parts. The Washington authorities

transferred this property to their counterparts in British

Columbia. The putative property owners claim that this

transfer functionally destroyed their property interests, thus

depriving them of due process. Although this scenario

presents an issue of first impression, we dismiss this portion

of the claim because it is moot. We also affirm the district

court’s entry of judgment with respect to the

constitutionality of Washington’s forfeiture statute.

BOCK V. STATE OF WASHINGTON 5

BACKGROUND

Two brothers—Chad Bock (“Chad”) and Nathan Bock

(“Nathan”) (collectively “the Bocks”), United States citizens

and residents of Washington State—became embroiled in a

dispute with the authorities of Washington and British

Columbia. In October 2014, British Columbia Conservation

Officer Jesse Jones stopped the Bocks for a wildlife

inspection, after observing moose antlers displayed in their

vehicle. During this inspection, Nathan presented a British

Columbia resident hunter license, and Chad presented a

British Columbia non-resident accompanied hunt permit

(obtained for him by Nathan). Officer Jones ultimately

issued the Bocks warnings for failure to leave evidence of

gender attached to the meat.

But Officer Jones was suspicious of Nathan’s resident

hunter status and so commenced an investigation. The

investigation revealed that, to obtain the relevant hunting

number, licenses, permits, and tags, Nathan had used non-

existent or inaccurate residences and addresses. In 2016,

Officer Jones shared the results of his investigation with the

Washington Department of Fish and Wildlife (“the

Department”), which launched its own investigation into the

Bocks and ultimately assigned the inquiry to Officer JoLynn

Beauchene. Officer Beauchene discovered that Nathan and

Chad had unlawfully imported multiple animals by failing to

properly document or disclose them at the border, and by not

having the proper permit.

Based on these findings, Officer Beauchene obtained

search warrants for the Bocks’ individual residences in

Spokane County, Washington. Accompanied by her

colleagues, Officer Beauchene seized as evidence numerous

items from the residences, including hunting trophies,

animal meat, and taxidermized animals. Following the

6 BOCK V. STATE OF WASHINGTON

seizure, Officer Jones—who was present during the seizure

at the invitation of the Department—identified the wildlife

and animal parts that had been taken in Canada.

Days later, and with the permission of the U.S. Fish &

Wildlife Service as well as her superiors in the Department,

Officer Beauchene transferred these wildlife and animal

parts to Officer Jones in British Columbia. As the district

court summarized, “[t]his transfer served a twofold purpose:

(1) storage (i.e., because British Columbia had larger

facilities to accommodate the seized items) and (2) potential

use as evidence (i.e., because it seemed likely that British

Columbia would be the first to refer the investigation for

prosecution).” The Department also transferred documents

and electronic storage devices seized from the Bocks’

residences to British Columbia, although these were

returned to the Department months later, after British

Columbia failed to file charges against the Bocks before the

statute of limitations had run. The Bocks claim that they

received no notice of the transfer of their property to Canada

(either from Washington or British Columbia officials).

In 2018, the Spokane County prosecutor filed charges

against Chad and Nathan for violating Wash. Rev. Code

§ 77.15.265, which forbids the possession of wildlife that the

defendant knows was taken in another country in violation

of that country’s laws or regulations relating to matters such

as licenses or tags. Nathan and Chad each entered into a

Stipulation to Police Reports and Order of Continuance

(“SOC”), which continued their cases in pre-trial status for

one year, after which the prosecutor would dismiss the

charges if the Bocks complied with certain terms of the

agreements.

In the SOCs, the Bocks waived a number of rights,

including the right to contest the evidence against them.

BOCK V. STATE OF WASHINGTON 7

Under the statute, the entry of an SOC also results in the

forfeiture of the wildlife and animal parts at issue. Id.

§ 77.15.100(3) (2018) (wildlife taken or possessed in

violation of state law “shall be forfeited to the state” when

“a person voluntarily enters into a disposition that continues

or defers the case for dismissal upon the successful

completion of specific terms or conditions”) (emphasis

added).

The Bocks successfully completed their SOCs, and the

charges against them were dismissed in October 2019.

Several months before this dismissal, however, they filed

suit against the Department, the State of Washington, Officer

Beauchene, two of her superiors, and Officer Jones

(collectively “the Officials”). Their claims all centered on

the Department’s transfer of the wildlife and animal parts to

the Canadian authorities. The claims included violation of

the Fourth, Fifth, 1 and Eighth Amendments; supervisory

liability; civil conspiracy; a writ of replevin; a return of

property; and, in an amended complaint, state law claims for

tortious conversion and negligence/tortious conduct. The

Bocks sought a variety of forms of relief, including

compensatory, special, punitive, and exemplary damages;

attorney’s fees and costs; and the return of all property seized

from their residences. The estimated value of the wildlife

and animal parts is at least $192,000.

Shortly after the case was properly removed to federal

court, the Bocks completed their SOCs and the charges

against them were dismissed. The Officials have aptly noted

that the Bocks brought suit rather than “withdraw their SOCs

and contest the statutorily mandated forfeiture.” The

1

The Bocks’ appellate briefs invoke the Fourteenth, rather the Fifth,

Amendment.

8 BOCK V. STATE OF WASHINGTON

Officials argued that the Bocks should be estopped from

bringing their claims, as their decision to voluntarily enter

into the SOC waived their right to challenge the automatic

forfeiture of the wildlife and animal parts—and, further, the

Washington statute and its application to the Bocks were

constitutional. In response, the Bocks made two

constitutional arguments. First, they claimed that the

Washington statute is unconstitutional when applied to

wildlife taken outside of Washington (and, further, that when

the Department transferred the wildlife and animal parts to

British Columbia, the parts ceased to be evidence and thus

subject to automatic forfeiture). Second, they claimed that,

by transferring the wildlife and animal parts to British

Columbia, the Department unconstitutionally deprived the

Bocks of property without notice or a hearing and

unconstitutionally deprived them of a remedy by divesting

the state court of in rem jurisdiction over the parts.

On cross-motions for summary judgment, the district

court granted the Officials’ motion and denied the Bocks’

motion. The district court noted that Washington law

“explicitly makes it a state law crime to take wildlife from

another country in violation of that country’s laws,”

rejecting the Bocks’ argument that the automatic forfeiture

statute is unconstitutional as applied to wildlife taken outside

of Washington. The district court likewise rejected the

argument that the automatic forfeiture statute

unconstitutionally deprived them of property without notice

or a hearing, noting that automatic forfeiture “only kicks in

if the party enters into an SOC.” The district court further

reasoned that, if the party chooses to go forward with the

prosecution, they do not waive their rights and they retain

the opportunity for notice, hearing, determination of guilt,

and return of the seized evidence. The district court noted

that the Bocks, with the advice of counsel, signed the SOCs,

BOCK V. STATE OF WASHINGTON 9

the completion of which triggered the forfeiture. Because

the district court could “dispose of the motion on the grounds

of automatic forfeiture,” it did not “find it necessary to

address the parties’ other arguments.” As a result, the

district court entered judgment in favor of the Officials.

ANALYSIS

I. MOOTNESS

The first issue before us is whether the Officials

abrogated the Bocks’ due process rights by transferring the

wildlife and animal parts to British Columbia in 2016,

without notice or a hearing. We conclude that the Bocks’

challenge is moot and therefore do not address the merits of

their argument. See W. Addition Cmty. Org. v. Alioto,

514 F.2d 542, 544 n.2 (9th Cir. 1975) (stating that “we are

obligated to consider the question of mootness” because a

“finding of mootness . . . deprive[s] our court of jurisdiction,

there no longer being an actual case or controversy” (internal

quotation marks omitted)).

The Fourteenth Amendment provides that a state cannot

“deprive any person of … property[] without due process of

law.” U.S. Const. amend. XIV. “[O]ne of due process’s

central and undisputed guarantees is that, before the

government permanently deprives a person of a property

interest, that person will receive—at a minimum—notice.”

Wright v. Beck, 981 F.3d 719, 727 (9th Cir. 2020). Even if

the state has seized a person’s property in full accordance

with the law, it cannot “destroy a property interest without

first giving the putative owner an opportunity to present his

claim of entitlement.” Lavan v. City of Los Angeles,

693 F.3d 1022, 1032 (9th Cir. 2012) (quoting Logan v.

Zimmerman Brush Co., 455 U.S. 422, 434 (1982)).

10 BOCK V. STATE OF WASHINGTON

The inquiry here is whether Washington’s 2016 transfer

of the wildlife and animal parts to Canada violated the

Bocks’ due process rights. This question—whether the

transfer of property outside of U.S. jurisdiction, without

notice and while the legal ownership of that property is still

in dispute, abrogates due process—is a matter of first

impression in this circuit. The Bocks maintain that the

transfer itself was equivalent to the destruction of their

property interest because the state placed the wildlife and

animal parts beyond the jurisdiction of the Washington

courts. That is, because the Washington authorities cannot

guarantee the return of the property from Canada, the

Bocks’ property interest was functionally extinguished.

Nonetheless, this argument must fall on mootness

grounds. “In general a case becomes moot when the issues

presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Murphy v. Hunt,

455 U.S. 478, 481 (1982) (internal quotation marks

omitted). We have held that where a “stipulation had the

effect of disposing of all” of the property at issue, the claims

for a return of property or seized assets are moot. United

States v. Pemberton, 852 F.2d 1241, 1243 (9th Cir. 1988)

(per curiam). The court in Pemberton concluded that “when

Pemberton agreed to forfeiture, he relinquished his claim for

a release of assets” from the forfeited funds. Id. (citing

United States v. Fischer, 833 F.2d 647, 648–49 (7th Cir.

1987)). Likewise, because the Bocks signed the SOCs,

which triggered the automatic forfeiture, their suit for

recovery of the forfeited property is moot. To the extent the

Bocks’ constitutional claims hinge on their argument that the

seized property was not contraband, these claims are also

mooted by the Bocks’ agreement to forfeiture. See United

States v. Rutledge, 448 F.3d 1080, 1081 (9th Cir. 2006)

(dismissing appeal as moot and withdrawing opinion

BOCK V. STATE OF WASHINGTON 11

because a ruling that assets “were not subject to criminal

forfeiture” “addressed a controversy between the parties that

no longer existed” after the parties entered into an

intervening plea agreement).

In the alternative, the Bocks’ suit would also fall on

standing grounds. The Bocks assert a risk of future harm

(i.e., if they vindicate their property rights, the Washington

authorities might not be able to get the property back from

Canada), yet the Supreme Court is clear that where a risk of

future harm has not yet materialized, the “plaintiffs’

argument for standing for their damages claims based on an

asserted risk of future harm is unavailing.” TransUnion LLC

v. Ramirez, 141 S. Ct. 2190, 2211 (2021). Even if the Bocks

had a property interest in the seized wildlife parts protected

by the Fourteenth Amendment at the time the parts were

transferred, the Bocks gave up that interest by agreeing to

the ultimate forfeiture of the items to the state; the Bocks

therefore cannot maintain a concrete injury as a result of the

transfer to British Columbia. See Spokeo, Inc. v. Robins,

578 U.S. 330, 340 (2016) (holding that a “bare procedural

violation, divorced from any concrete harm” does not

“satisfy the injury-in-fact requirement of Article III”).

II. JUDICIAL ESTOPPEL

The Bocks also argue that Washington’s wildlife

forfeiture statute, Wash. Rev. Code § 77.15.100(3), is

unconstitutional on its face and as applied against them. We

conclude that, while the existence of a state law authorizing

a seizure does not immunize that seizure from constitutional

scrutiny, see Sibron v. New York, 392 U.S. 40, 61 (1968), the

Bocks are estopped from raising this argument.

When “a party assumes a certain position in a legal

proceeding, and succeeds in maintaining that position, he

12 BOCK V. STATE OF WASHINGTON

may not thereafter, simply because his interests have

changed, assume a contrary position.” New Hampshire v.

Maine, 532 U.S. 742, 749 (2001) (internal quotation marks

omitted). The Supreme Court has identified three non-

exclusive factors that should “inform” a court’s decision to

apply judicial estoppel: (1) “a party’s later position must be

‘clearly inconsistent’ with its earlier position”; (2) “the party

has succeeded in persuading a court to accept that party’s

earlier position,” such that judicial acceptance of an

inconsistent position would create the perception that one

court was misled; and (3) “the party seeking to assert an

inconsistent position would derive an unfair advantage or

impose an unfair detriment on the opposing party if not

estopped.” Id. at 750–51 (internal quotation marks and

citations omitted).

Per their SOCs, the Bocks were charged with “unlawful

possession of wildlife in violation of another country’s or

state’s laws.” Successful completion of the SOC resulted in

automatic forfeiture of the wildlife at issue. Wash. Rev.

Code § 77.15.100(3). In signing these SOCs, the Bocks

agreed to the statutorily mandated consequence of forfeiture

of the seized materials, pursuant to section 77.15.100(3).

Attempting to avoid this consequence would be “clearly

inconsistent” with the SOCs; would certainly create the

impression that the first court was misled; and would endow

the Bocks with a significant unfair advantage. As the district

court found, the Bocks are estopped from taking positions

inconsistent with the SOCs.

The Bocks attempt to save their constitutional claim by

arguing that they did not “knowingly and voluntarily” waive

their right to challenge the forfeiture, in particular, when

they entered into the SOC. This too must fail. So long as a

claimant is given notice of the seizure of property pursuant

BOCK V. STATE OF WASHINGTON 13

to a search warrant, the state has fulfilled its due process

obligations, for the claimant “can turn to . . . public sources

to learn about the remedial procedures available to him.”

City of West Covina v. Perkins, 525 U.S. 234, 240–41

(1999). The state need not undertake any other steps or

engage in “individualized notice.” Id. at 241. Notably, the

trial court repeatedly asked the Bocks to confirm that their

consent to the terms of the SOCs was knowing and

voluntary, and with the advice of counsel—which they did.

Cf. United States v. Delgado-Ramos, 635 F.3d 1237, 1239

(9th Cir. 2011) (entry of a disposition can be voluntary “even

‘if the defendant did not correctly assess every relevant

factor entering into his decision’”). Even the last page of the

Bocks’ motion for summary judgment concedes that they

“might have been on notice.” 2

III. QUALIFIED IMMUNITY

The Bocks only argue on appeal that the defendants are

liable under the Fourteenth Amendment for violating their

constitutional rights. Without an actionable constitutional

claim, the Bocks’ arguments with respect to liability and

As a technical matter, even assuming that only the as-applied

2

constitutional challenge is estopped by the SOCs, the Bocks’ completion

of the SOCs nonetheless deprived them of standing to bring a facial

constitutional challenge. A facial challenge to a statute requires a

plaintiff to “show that he has sustained or is immediately in danger of

sustaining some direct injury as the result of the challenged official

conduct and the injury or threat of injury must be both real and

immediate, not conjectural or hypothetical.” 4805 Convoy, Inc. v. City

of San Diego, 183 F.3d 1108, 1111–12 (9th Cir. 1999) (internal quotation

marks omitted). Because the Bocks agreed to statutory forfeiture by

completing the SOCs, they have not sustained and are not in danger of

sustaining a direct injury resulting from the forfeiture statute.

14 BOCK V. STATE OF WASHINGTON

qualified immunity also fail. 3 Pearson v. Callahan, 555 U.S.

223, 231 (2009) (“[Q]ualified immunity protects

government officials 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.” (internal quotation marks omitted)).

DISMISSED IN PART AND AFFIRMED IN PART.

3

We decline to address the Bocks’ conclusory assertion that the

district court’s judgment should be reversed with respect to Officer Jones

because he did not file or join in the motion for summary judgment. The

Bocks waived this issue by failing to argue it “specifically and

distinctly.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,

919 (9th Cir. 2001).