The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN J. CRUZ, No. 21-35912
Plaintiff-Appellee,
D.C. No. 2:20-
v. cv-00250-SAB
CITY OF SPOKANE;
WASHINGTON STATE CRIMINAL
JUSTICE TRAINING ORDER
COMMISSION, a state commission; CERTIFYING
RICK BOWEN, Commander of the QUESTION TO
Washington State Criminal Justice THE
Training Commission Basic Law WASHINGTON
Enforcement Academy; JOHN SUPREME
EVERLY, Police Officer at the COURT
Spokane Police Department and
Assistant Commander of the
Washington State Criminal Justice
Training Commission Basic Law
Enforcement Academy; ART
DOLLARD, Police Officer at the
Spokane Police Department and TAC
Officer at the Washington State
Criminal Justice Training Commission
Basic Law Enforcement Academy;
JAKE JENSEN, Police Officer at the
Spokane Police Department and TAC
Officer at the Washington State
2 CRUZ V. CITY OF SPOKANE
Criminal Justice Training Commission
Basic Law Enforcement Academy;
TODD BELITZ, Police Officer at the
Spokane Police Department and TAC
Officer at the Washington State
Criminal Justice Training Commission
Basic Law Enforcement Academy;
SUE RAHR, Executive Director of the
Washington State Criminal Justice
Training Commission;
Defendants-Appellants,
and
FERRY COUNTY; CITY OF
REPUBLIC, a municipal corporation;
RAY MAYCUMBER, Ferry County
Sheriff; AMY ROOKER, Ferry
County Chief Civil Deputy; AUSTIN
HERSHAW, Police Officer at the
Black Diamond Police Department;
PATRICK RAINER, Detective at the
Ferry County Sheriff’s Office,
Defendants.
Filed April 28, 2023
Before: Jacqueline H. Nguyen and Andrew D. Hurwitz,
Circuit Judges, and Dean D. Pregerson, * District Judge.
*
The Honorable Dean D. Pregerson, United States District Judge for the
Central District of California, sitting by designation.
CRUZ V. CITY OF SPOKANE 3
SUMMARY **
Civil Rights/Washington Law
In an action alleging, in part, wrongful discharge, the
panel certified the following question to the Washington
Supreme Court:
What is the scope of immunity provided by
RCW 43.101.390? Specifically, does the
provision grant immunity for intentional torts
committed in the course of administering the
Basic Law Enforcement Academy?
COUNSEL
Heidi S. Holland (argued) and Taylor Hennessey, Assistant
Attorneys General; Robert W. Ferguson, Attorney General
of Washington; Office of the Washington Attorney General;
Spokane, Washington; for Defendants-Appellants.
Nathan J. Arnold (argued) and Emanuel F. Jacobowitz,
Arnold & Jacobowitz PLLC, Redmond, Washington, for
Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CRUZ V. CITY OF SPOKANE
ORDER
The Washington State Criminal Justice Training
Commission (“CJTC”), the City of Spokane, Sue Rahr, Rick
Bowen, John Everly, Art Dollard, Jake Jensen, and Todd
Belitz (collectively, the “CJTC Defendants”) moved for
summary judgment in the district court on John Cruz’s state
law claims, asserting that they are entitled to statutory
immunity under Wash. Rev. Code (“RCW”) 43.101.390(1).
The district court denied summary judgment, and the CJTC
Defendants appealed. Whether summary judgment is
warranted turns on an unresolved and important issue of
Washington law—the scope of immunity provided by RCW
43.101.390. Specifically, (a) does the provision grant
immunity for even intentional torts, and (b) can acts
committed with unlawful intent qualify as “official acts
performed in the course of . . . duties”? RCW
43.101.390(1). We respectfully ask the Washington
Supreme Court to exercise its discretion to decide the
certified question set forth below.
I. Factual Background
Cruz began working as a police officer for the City of
Republic, Washington, on September 1, 2016. He identifies
as Hispanic and alleges that his colleagues and supervisors,
including Deputy Austin Hershaw, frequently subjected him
to racist remarks. 1
In January 2017, Cruz allegedly heard from a Ferry
County dispatcher that Hershaw engaged in sexual activity
1
Because the CJTC Defendants filed their motion for partial summary
judgment before the completion of discovery, many of their arguments
were based on factual allegations in the operative pleading.
CRUZ V. CITY OF SPOKANE 5
with a woman named Randi Torchesky in the back of his
patrol car while on duty and in uniform in July 2016. Cruz
alleges that he reported this misconduct to Detective Rainer,
Hershaw’s close friend. Both Hershaw and Torchesky
denied the incident, and the sheriff referred the investigation
to the Washington State Patrol. Cruz alleges that Hershaw
“was furious” at him for reporting the alleged sexual
misconduct.
Later in January 2017, shortly before Cruz began
mandatory training at the Basic Law Enforcement Academy
(the “Academy”), Hershaw allegedly visited the Academy to
pick up targets for a firearms training. Cruz believes that,
during this visit, Hershaw complained to Assistant
Commander John Everly and Officer Art Dollard about
Cruz’s “false allegations” against him and asked them to
treat Cruz harshly in retaliation. Cruz states that Rainer also
contacted staff and instructors at the Academy requesting
that they treat Cruz harshly.
Cruz alleges that after he arrived at the Academy in
February 2017, Dollard and Everly consistently subjected
him to unfair treatment. For example, they allegedly:
• falsely accused him of lying on multiple occasions;
• assaulted him with pepper spray in the guise of
training—by spraying him more harshly than other
cadets—when administering the pepper spray
certification exercise;
• cited him for issues that were not raised against other
similarly situated cadets, including some conduct
that violated no Academy rules;
• attempted to publicly embarrass him regarding his
personal affairs; and
6 CRUZ V. CITY OF SPOKANE
• deliberately separated him from another Hispanic
recruit with whom he spoke Spanish and had
developed a close friendship.
During training, Cruz’s young daughter and his long-
term girlfriend occasionally stayed with him overnight,
including on some weekdays, a practice he claims was
allowed for other current and former cadets. In May 2017,
three weeks before graduation, Everly questioned Cruz
about his daughter’s overnight stays. Cruz alleges that he
had Officer David Daddatto’s permission, but Daddatto did
not recall any specific conversations with Cruz about
overnight guests. Daddatto had apparently informed other
cadets that guests were only permitted on weekends. Cruz
alleges that he was never informed that weekday stays were
not permitted, and, in any event, such stays violated no rule
or policy. Nonetheless, Everly concluded that Cruz had lied
about receiving permission to host guests and thus dismissed
Cruz for violating the Academy’s integrity policy. Cruz
appealed his dismissal in June 2017. Sue Rahr, the CJTC’s
Executive Director, denied the appeal, and Cruz was
terminated from employment as a police officer.
Cruz filed a complaint in state court on May 5, 2020,
alleging ten causes of action based on race discrimination
and retaliation for reporting Hershaw’s alleged sexual
misconduct. The following state law claims are at issue on
appeal: (1) wrongful discharge in violation of public policy;
(2) wrongful termination in violation of public policy, RCW
42.41.010; (3) violation of the Washington Law Against
Discrimination (“WLAD”) regarding retaliation against a
whistleblower, RCW 49.60.210; (4) intentional infliction of
emotional distress; (5) intentional interference with a
business relationship; and (6) violation of the WLAD based
CRUZ V. CITY OF SPOKANE 7
on racial discrimination, RCW 49.60.180. The CJTC
Defendants removed the case to federal court.
The CJTC and its staff, as well as the City of Spokane,
which employed the defendant officers assigned CJTC
responsibilities, moved for partial summary judgment as to
the state law claims before the parties completed written
discovery and depositions. The CJTC Defendants contend
that they are entitled to statutory immunity as a matter of law
under RCW 43.101.390(1), which provides:
The commission and individuals acting on
behalf of the commission are immune from
suit in any civil or criminal action contesting
or based upon proceedings or other official
acts performed in the course of their duties in
the administration and enforcement of this
chapter.
The district court concluded that the CJTC Defendants are
not “automatically immunized” from suit under RCW
43.101.390 and that further discovery was warranted to
determine whether they acted with discriminatory or
retaliatory intent or exceeded the scope of their duties.
Accordingly, the district court denied the motion without
prejudice to renewal after discovery.
II. Explanation of Certification
Washington law permits certification from a federal
court when, in the opinion of the court, “it is necessary to
ascertain the local law of [Washington] in order to dispose
of such a proceeding and the local law has not been clearly
determined.” Wash. Rev. Code 2.60.020.
8 CRUZ V. CITY OF SPOKANE
Here, the parties dispute whether RCW 43.101.390
immunizes the CJTC Defendants from liability. The CJTC
Defendants argue that they enjoy absolute immunity because
the alleged conduct occurred during Cruz’s training at the
Academy and because his dismissal from the Academy fell
within the CJTC’s authority for training and discipline. Cruz
contends that RCW 43.101.390 does not confer absolute
immunity and that there remains a triable issue of fact as to
whether the CJTC Defendants’ discriminatory and
retaliatory conduct removed their conduct from the scope of
RCW 43.101.390’s protection. Thus, we must decide
whether RCW 43.101.390’s immunity provision covers all
torts, including intentional torts, committed by Defendants
while administering the Academy. This critical issue of state
law is unsettled and dispositive in this case, and it has
important public policy ramifications.
The Washington Supreme Court has not addressed the
scope of RCW 43.101.390’s immunity provision. The
Washington Court of Appeals, however, has held that RCW
43.101.390 provides broad immunity for negligent conduct
performed within the course of the CJTC’s duties. See Ent
v. Washington State Criminal Justice Training Com’n, 174
Wash. App. 615, 622 (2013). In Ent, a student police officer
at the CJTC’s training academy in Burien, Washington, was
forced to stand for over an hour at an inspection and
graduation ceremony, causing him to faint and strike his
head on the floor; by that point, two of his classmates had
already fallen to the floor. Id. at 617. He sustained
significant head injuries and sued the Commission for
negligence. Id. The trial court granted the CJTC’s motion
for judgment on the pleadings based on statutory immunity
under RCW 43.101.390. Id. at 618. The Washington Court
of Appeals affirmed, ruling that “[i]mmunity unambiguously
CRUZ V. CITY OF SPOKANE 9
applies to chapter 43.101 RCW in its entirety.” Id. at 619.
It rejected the plaintiff’s concerns about “troubling
scenarios” that might result from this finding of broad
immunity under RCW 43.101.390, such as protection from
civil and criminal liability even for “obvious negligence,”
“embezzl[ing] funds,” and “manslaughter,” because such
scenarios result from a “legislative policy choice.” Id. at
621.
The Ent court then considered whether the defendants’
conduct was performed within the course of their duties. It
found that requiring attendance at the Academy inspection
and graduation ceremony was “well within [the CJTC’s]
discretion,” noting that “[t]he legislature gave the CJTC
broad authority to develop and implement curriculum
necessary for its training programs.” Id. at 622.
In Ent, the CJTC argued that it was entitled to “blanket
immunity.” Id. at 618. While the Washington Court of
Appeals did not explicitly state that CJTC enjoys “blanket”
immunity, it held that the immunity provision “cannot be
reasonably read to limit or contradict the scope of the
[CJTC]’s responsibility or authority to act.” Id. Then, in a
separate section, it rejected the plaintiff’s alternative
argument that the CJTC’s actions were not “performed in the
course of their duties in the administration and enforcement
of th[e] chapter.” See id. at 621–22; RCW 43.101.390. The
Ent court concluded that, even presuming the plaintiff’s
allegations were true, he could prove no set of facts
consistent with his complaint entitling him to recovery, since
the alleged conduct fell comfortably within the broad
authority RCW 43.101 provides to the CJTC. 174 Wash.
App. at 622 (citing RCW 43.101.080(8)–(13)). Ent’s
rejection of the plaintiff’s alternative arguments—one based
on statutory interpretation, and the other based on presumed
10 CRUZ V. CITY OF SPOKANE
facts and surrounding statutory provisions—does not
expressly resolve whether intentional torts committed while
administering the Academy are “official acts” subject to
immunity.
This question is central to this case. It is uncontested that
the state legislature has delegated authority to the CJTC to
train and discipline police officers. RCW 43.101.020(2); see
also id. 43.101.200(1) (requiring that all law enforcement
personnel complete basic law enforcement training); id.
43.101.200(2) (providing that the CJTC shall provide such
training); id. 43.101.080(6) (granting authority to contract
with other organizations for training personnel). The CJTC
Defendants argue that, because the immunity provision
applies to any civil or criminal suit arising from Cruz’s
undisputed participation in the Academy, his state claims
must be dismissed as a matter of law. On the other hand,
Cruz argues that the CJTC Defendants’ conduct exceeded
the scope of this authority. That is, he contends that when
Defendants committed the alleged intentional torts based on
personal animus, they were not “acting on behalf of the
commission,” and their conduct did not qualify as “official
acts performed in the course of their duties.” RCW
43.101.390(1). Therefore, Cruz argues that further
discovery regarding, for example, discriminatory or
retaliatory intent and any departures from established
policies and procedures may establish a genuine dispute of
material fact.
Even assuming that Ent holds that RCW 43.101.390(1)
confers absolute immunity, the Washington Supreme Court
has never held that such immunity extends to egregious or
intentional conduct. See Ent, 174 Wash. App. at 621 (stating
in dictum that it does). This sweeping interpretation of the
immunity provision has broad implications that are best
CRUZ V. CITY OF SPOKANE 11
addressed by the highest court of the state, and the
Washington Supreme Court may interpret RCW 43.101.390
differently than did the Washington Court of Appeals in the
context of intentional torts.
We recognize the burden that certifying a question
imposes on a state court. However, certification is
“particularly appropriate” where, as here, the issues of law
are not only unsettled but also have “significant policy
implications.” Centurion Props. III, LLC v. Chi. Title Ins.
Co., 793 F.3d 1087, 1089 (9th Cir. 2015) (internal quotation
marks and citation omitted). Resolution of the certified
question could have a significant impact on the state’s
liability, as well as the training and public perception of law
enforcement officers in Washington. Given the significance
of the policy issues implicated by Cruz’s state claims and the
unsettled state of the law, we conclude that certification is
the most appropriate course of action.
ORDER
We respectfully certify to the Washington Supreme
Court the following question:
What is the scope of immunity provided by
RCW 43.101.390? Specifically, does the
provision grant immunity for intentional torts
committed in the course of administering the
Basic Law Enforcement Academy?
We do not intend the phrasing of our question to restrict
the Washington Supreme Court’s deliberations. We
recognize that the Washington Supreme Court may exercise
its discretion and reformulate the question. Broad v.
12 CRUZ V. CITY OF SPOKANE
Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir.
1999).
The Clerk of Court is ordered to transmit to the
Washington Supreme Court, under official seal of the Ninth
Circuit, this order and request for certification along with all
relevant briefs and excerpts of record pursuant to Wash. Rev.
Code 2.60.010 and 2.60.030 and Washington Rule of
Appellate Procedure 16.16. If the Washington Supreme
Court accepts the certified question, we designate the CJTC
Defendants to file the first brief pursuant to Washington
Rule of Appellate Procedure 16.16(e)(1).
Further proceedings in this court are stayed pending the
Washington Supreme Court’s decision whether to accept
review—and, if that Court accepts review, pending receipt
of answers to the certified question. This appeal is
withdrawn from submission until further order. The Clerk is
directed to administratively close the docket. The panel will
resume control and jurisdiction upon the Washington
Supreme Court’s decision to not accept the certified question
or upon receipt of answers to the certified question.
When the Washington Supreme Court decides whether
to accept the certified question, or orders additional briefing
before deciding whether to accept the question, the parties
are directed to promptly file a joint status report informing
us. If the Washington Supreme Court accepts the certified
question, the parties are directed to file further joint status
reports informing us when briefing has been completed and
a date set for oral argument and when the Washington
Supreme Court provides answers to the certified question.
It is so ORDERED.
CRUZ V. CITY OF SPOKANE 13
/s/ Mary H. Murguia
Chief Judge Mary H. Murguia
U.S. Court of Appeals for the Ninth Circuit