Petition for Writ of Certiorari — Ball v. Gasho

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MEEIVE UE THE CLERK

In the

Supreme Court of the United States

October Term, 1994

WILLIAM L. BALL; ROGER MANNHALTER;

JOHN J. HOWE, JR.,

Petitioners,

JOHN R. GASHO, SR.; SHARON L. GASHO,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

N. WARNER LEE

Counsel of Record

JOHN C. LEMASTER

WILLIAM A. RICHARDS

Jami L. SCHULMAN

Ryley, Carlock & Applewhite

Suite 2700

101 North First Avenue

Phoenix, Arizona 85003-1973

(602) 258-7701

Counsel for Petitioners Ball and

Mannhalter

GARY H. BURGER

Jones, Skelton & Hochuli

2901 North Central Avenue

Suite 800

Phoenix, Arizona 85012-2703

(602) 263-1700

Counsel for Petitioner Howe

QUESTIONS PRESENTED

In Harlow v. Fitzgerald, 475 U.S. 800 (1982), this Court

held that qualified immunity in a constitutional tort action

against government officials is to be determined solely on an

objective standard of reasonableness based upon clearly

established constitutional law and rejected any inquiry into

the subjective motivations of the government officials. In

Anderson v. Creighton, 483 U.S. 635 (1987), this Court held

that clearly established constitutional law cannot be merely

generalized standards, but must be particularized so that

reasonable officers could be aware of whether their conduct

complies with the relevant constitutional standards. The

Ninth Circuit below did not focus upon constitutional law

relating to whether an officer can effect an arrest for

probable cause when individuals fail to return property

taken from a seized vehicle, i.e., an aircraft. Instead, the

Ninth Circuit, denying the officers summary judgment on

qualified immunity, held that allegations of malicious intent

in effecting an arrest were relevant in determining that the

clearly established constitutional law prohibits an arrest for

challenging an officer's authority on freedom of speech

grounds. The case therefore presents the following

questions:

1. Are allegations of malicious intent relevant in deter-

mining whether law enforcement officials are entitled

to qualified immunity?

2. Can the ‘“‘clearly established"’ constitutional law used

to defeat qualified immunity be based upon genera-

lized constitutional principles governing arrests for

challenging an officer's authority solely because an

allegation of malicious intent is made?

PARTIES TO THE PROCEEDINGS

Petitioners are William L. Ball, Roger Mannhalter, and

John J. Howe, Jr., agents of the United States Customs

Service. During the time at issue, all petitioners were lo-

cated in the Phoenix, Arizona office of the United States

Customs Service. Petitioners Ball and Mannhalter were

special agents, and Petitioner Howe was the immediate

supervisor of Petitioners Ball and Mannhalter. Each Peti-

tioner appears here in their individual capacities.

Respondents are John R. Gasho, Sr. and Sharon L.

Gasho, private citizens. During the times at issue, Respon-

dents were residents of the State of Arizona. Millardair,

Ltd., a Canadian corporation (‘‘Millardair’’), was also a

plaintiff in the action below; however, Millardair is not a

party to this petition because its claims were dismissed by

the District Court and affirmed on appeal.’ In addition, this

petition does not include all parties to the United States

Court of Appeals for the Ninth Circuit decision because the

instant proceeding was consolidated with a prior Federal

Tort Claims Act (‘“‘FTCA’’) action by the Gashos and

Millardair against the United States of America. Thus, the

United States is not a party to this petition.”

‘Notice as required by Rule 12.4, Rules of the Supreme Court

of the United States, has been given to Millardair.

“In addition, Northrup Worldwide Aircraft Services, Inc.

(‘Northrup’) was a defendant in the FTCA action in a claim by

Millardair. The claim against Northrup was not appealed by

Millardair. Thus, Northrup is not a party to this petition.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........ceecccees

PARTIES TO THE PROCEEDING ............. il

py Re A Stee a) ogg) > nr iv

EEE ae ee re l

a en ee 2

CONSTITUTIONAL PROVISIONS AND

eo aig y Bs 3) Ry: | SS en 2

ee ka vas ned aesaebes 3

REASONS FOR GRANTING THE PETITION .. 10

I. Certiorari Should be Granted to Correct

the Ninth Circuit's Application of a

Subjective Standard to Defeat a Qualified

Ernmiumity Detense ... 1... ccc cece cece: 1]

Il. Certiorari Should be Granted to Correct

the Ninth Circuit's Reliance on Only

General and Irrelevant Principles of

Constitutional Law to Defeat a Qualified

Ee ks baa g base'e so 0% 13

ee 22

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635

4. 2 3 Be Serre rer res one 19, 11, 12, 13, 14, 20

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.

og | pe re rr ce ners re ae 8

Carlson v. Green, 446 U.S. 14 (1980) ............. 13

Chambers v. Maroney, 399 U.S. 42 (1970).......... 17

Colorado v. Bertine, 479 U.S. 367 (1987) .......... 17

Davis v. Scherer, 468 U.S. 183 (1984) ............. 20

Duran v. City of Douglas, Ariz., 904 F.2d 1372

Cee as DUD 0b ce 6h 056 0665s keen ches 14, 15, 16

Elder v. Holloway, 114 S.Ct. 1019

CEE ini ian aabun 0x OK our 6e dada we ekE 10, 13, 14, 15

Gasho v. U.S., 39 F.3d 1420

Ce Gls PED Sadek eh dinne oe kbaveebneus 1, 6, 9, 10, 14

Graham v. Connor, 490 U.S. 386 (1989)........... 1]

Halperin v. Kissinger, 606 F.2d 1192 (D.C.

Cir.1979); cert. granted, 446 U.S. 951 (1°80),

amé. a bers, 452 U.S. TIS CIDE) } . occ ccssccucs 12

Harlow v. Fitzgerald, 457 U.S. 800

PEED GS ciGtedwucienkcan bees kee’ 10, 11, 12, 13, 14, 20

Houston v. Hill, 482 U.S. 451 (1987), cert. denied,

a Ea BUEN. CRUE D .0cckwe are rewewncacas 14, 15, 16

yrumier vo. Bryent, BOT U.S. 224 CUDGL). 2. oc ccc ewsens 20

Malley v. Briggs, 475 U.S. 335 (1986) ........ i1, 16, 20

Mitchell v. Forsyth, 472 U.S. 511 (1985) ........... 17, 18

United States v. Moore, 483 F.2d 1361 (9th Cir.

DEE oo bush ce aad ok aCe ae hee wes g

United States v. Prescott, 581 F.2d 1343 (9th Cir.

SE a ch webs ae ahha bie Vee cae ocd 14, 15, 16

United States v. Selby, 407 F.2d 24] (9th Cir. 1969) .. 9

TABLE OF AUTHORITIES (Continued)

Page

United States v. Watson, 423 U.S. 411 (1976)....... 16

United States v. Woodring, 536 F.2d 598 (5th Cir.

1976), cert. denied, 429 U.S. 1003 (1976) ....... 18, 19

CONSTITUTIONAL PROVISIONS

ee I, I Go a ayaa shee eewawen en dns 15

U.S. Const. Amend. IV ......... 2, 10, 11, 14, 15, 16, 17

Rid Ms HUE on ns tN de diveeenccussakcdsed 15

STATUTES

gE re rer ey eer Tr rrr are eer 17, 19

SP Rect ERD ig ce ok esc er eventsuaceyss 2, 18, 19

er as EE Okt be sdecceunesveneacdeuvdos 2

ee a NN oe peda annsaeciusduswss 8

BO Ws Oe TOE 6 kev va we vtawsvaveecwacens 8

ee SE So ea Pde hU cae hk es es head anand weds 8,9

REGULATIONS AND RULES

eee eS ag Pe ee ee ere 19

Pe ne ie PEEP CD 2h ks vo ao vee dante iawsces 19

Rule 4(j), Federal Rules of Civil Procedure ....... 8

No.

In the

Supreme Court of the United States

October Term, 1994

WILLIAM L. BALL; ROGER MANNHALTER:

JOHN J. HOWE, JR.,

Petitioners,

JOHN R. GASHO, SR.; SHARON L. GASHO,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners William L. Ball, Roger Mannhalter and John

J. Howe, fr. pray that a writ of certiorari be issued to review

the opinion, entered in this proceeding on November 2,

1994, and the judgment, entered in this proceeding on

January 13, 1995, of the United States Court of Appeals for

the Ninth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit, entered on November 2, 1994, is re-

ported at 39 F.3d 1420 (9th Cir. 1994) and is reprinted in

the Appendix (‘‘App."’) “A", infra. The Order of the

United States Court of Appeals for the Ninth Circuit deny-

ing rehearing, filed December 27, 1994, is unreported and

is reprinted in App. “G."’ The Order of the United States

District Court from which appeal was taken is unreported

and is reprinted in App. “C."' The final judgment of the

United States District Court is unreported and is reprinted

in App “‘B.”’ The judgment of the United States Court of

Appeals for the Ninth Circuit, filed January 11, 1995, 1s

unreported and is reprinted in App. ‘‘H.”’ In addition, two

of the orders of the United States District Court entered in

the FTCA action are unreported and reprinted in Apps.

“E” and “F”’. The Amended Judgment of the United States

District Court in the FTCA action is reprinted in App. ‘‘D.”’

JURISDICTION

The United States Court of Appeals for the Ninth Circuit

entered its opinion on November 2, 1994. A petition for

rehearing was denied on December 27, 1994. On Janu-

ary 13, 1995, the United States Court of Appeals for the

Ninth Circuit filed its judgment. On March 20, 1995, Justice

O’Connor extended the time for filing a petition for writ of

certiorari for 30 days to April 26, 1995. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

Constitutional Provisions and Statutes Involved

The Fourth Amendment to the United States Constitu-

tion provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

Title 18, Section 2232(a) of the United States Code

provides:

(a) Physical interference with search.

Whoever, before, during or after seizure of any property

by any person authorized to make searches and seizures, in

order to prevent the seizure or securing of any goods,

wares, or merchandise by such person, staves, breaks,

throws overboard, destroys, or removes the same, shall be

fined under this title or imprisoned not more than five

years, or both.

STATEMENT

1. Factual Statement. On June 24, 1988, John and

Sharon Gasho flew a McDonnell Douglas DC-3 aircraft to

the Scottsdale Municipal Airport. Later that same day, Fred

Arthur, an Air Traffic Control Specialist employed at the

tower at the Scottsdale Municipal Airport, notified the

United States Customs Service that the aircraft had arrived

several hours earlier displaying United States registration

markings, which were subsequently replaced with Canadian

registration markings.

Because the McDonnell Douglas DC-3 has a notorious

history as an aircraft used in smuggling contraband across

the United States’ border with Mexico, the Customs Service

Resident-Agent-in-Charge (‘‘RAC"’) in Phoenix, William

Gately, dispatched Special Agents William Ball and Roger

Mannhalter to the airport to investigate. While en route to

the airport, Agent Ball was notified that the Canadian

authorities reported that the Canadian registration mark-

ings on the aircraft were invalid.’ After a brief investigation

at the airport, Agents Ball and Mannhalter learned that the

Gashos piloted the DC-3 aircraft. Agents Ball and Man-

nhalter then traced the Gashos to a Scottsdale hotel.

The Gashos are owners of an aircraft restoration com-

pany located in Tucson, Arizona. Both John and Sharon

Gasho are pilots. During the initial interview of the Gashos

at their hotel by Agents Ball and Mannhalter, the Gashos

* RAC Gately also telephoned Corporal Karol Waversfeld, an

acquaintance with the Royal Canadian Mounted Police, to deter-

mine whether the Canadian registration marks displayed on the

aircraft were properly issued to the aircraft. A dispute in the

record existed as to when Waversfeld returned Custom’s call

regarding the invalidity of the Canadian registration.

a NO a iii i eS Joell, |

stated that the aircraft belonged to Carl Millard,‘ who

provided the Canadian registration marks displayed on the

aircraft. The Gashos claimed that they had relied upon

Millard to obtain the proper Canadian registration mark-

ings and that they had no personal involvement in the

process. The Gashos claimed that Millard had purchased

the aircraft for export to Canada and that they were hired

by Millard to prepare the aircraft for export. The Gashos

also told the Agents that they flew the aircraft to Scottsdale

Municipal Airport at Millard’s request in order to secure all

necessary export documentation from John Zarcone of the

Federal Aviation Administration Flight Standards Office.

They claimed that Zarcone had issued the required docu-

mentation and assisted them in the placement of the Cana-

dian registration markings on the aircraft.

John Gasho also discussed the ownership history of the

aircraft with the Agents, claiming that he held ownership of

the aircraft for a substantial period ‘‘on paper’’, but that

Millard was the true owner of the aircraft during that

period. Mr. Gasho explained that Millard transferred own-

ership to him ‘‘on paper”’ in order to obtain United States

registration markings for the aircraft, which Mr. Gasho had

determined could not be legally issued to Millard because

he was not a citizen of the United States. Mr. Gasho

maintained that he transferred ownership of the aircraft

back to Millard after the Gashos prepared the aircraft for

export to Millard in Canada and after Millard provided

Canadian registration markings for the aircraft. Following

Agents Ball and Mannhalter’s interview of the Gashos, the

Agents attempted to contact Zarcone, but were unsuccessful

because the Flight Standards Office was closed and Zar-

cone’s home telephone number was unlisted.”

* Carl Millard is the owner of Millardair.

Agents Ball and Mannhalter also attempted to contact two

Customs Service employees, Ken Batyl and Dave Kuntz, whom

[cont'd]

Based upon the totality of evidence known by Agents Ball

and Mannhalter at the time, they concluded that there was

probable cause to believe the aircraft was displaying false

registration markings and therefore decided to seize the

aircraft. Agent Ball so notified the Gashos, requested that

they provide sworn statements, and informed them of their

Miranda rights.

The Gashos responded by summoning their attorney,

Pamela Vining,° to the hotel. When Vining arrived, Agent

Ball informed her that he intended to return to the Scotts-

dale Municipal Airport to seize the aircraft on behalf of the

Customs Service. The Agents then departed together in

their car, and the Gashos and Vining followed in Vining’s

Car.

At the airport, the Gashos showed the agents an Export

Certificate of Airworthiness and a Special Flight Authoriza-

tion signed by Zarcone for the aircraft, which identified the

aircraft by the Canadian registration markings displayed on

the aircraft. Neither document indicated, however, that the

Canadian registration markings were properly issued to the

aircraft by the Canadian Ministry of Transport. The Special

Flight Authorization instead required the owner of the

aircraft to ensure that display of the listed markings was “‘in

accordance with ... [the foreign] country’s applicable re-

quirements.” This information confirmed the Agents’ deci-

John Gasho claimed would vouch for his trustworthiness. Kuntz

was unavailable, but Batyl was located by telephone. Baty! in-

formed Agent Ball in substance that John Gasho had cooperated

in other Customs Service investigations and that Batyl did not

believe Mr. Gasho was guilty of any criminal conduct. Kuntz is the

customs’ employee who allegedly had a conversation with Agent

in Charge John Howe the next day. Kuntz contended that Agent

Howe told him that the Gashos were arrested for failure to return

the logbooks and because they made the Agents mad.

° Vining is John Gasho’s daughter.

ee ae

sion to seize the aircraft. The Agents therefore informed

the Gashos that they were seizing the aircraft.’

Realizing that the aircraft was seized, Sharon Gasho

requested permission to remove personal belongings and a

radio from the aircraft. Agent Ball granted Sharon Gasho’s

request. After Sharon Gasho exited the plane, the Agents

overheard Sharon Gasho tell John Gasho that she had taken

the aircraft logbooks from the aircraft. The Agents then

explained to the Gashos and to Vining that the seizure of

the aircraft included the aircraft's logbooks, and ordered

that the logbooks be immediately returned.® The Gashos

were evasive about whether they in fact had the logbooks”

and refused to return the logbooks and, instead, proceeded

7 When it became apparent that the Agents’ concerns were not

resolved by the documentation provided from the aircraft, John

Gasho became extremely hostile and uncooperative. He

threatened Agents Ball and Mannhalter with suit and told them

that they would be ‘‘walking a beat” before he was through with

them. He even spoke arrogantly of drug smuggling, stating that it

would be unnecessary for him ‘to haul a load of marijuana

[because] he could retire from what was going on there that

night.”’

* The Ninth Circuit's conclusion that “the agents did not pro-

test or attempt to stop Sharon Gasho from removing the logbooks

and placing them in the vehicle,’ Gasho, 39 F.3d at 1426, is

rebutted by deposition testimony taken in the prior FTCA action

against the United States, which establishes that the Agents

immediately demanded return of the logbooks. (A copy of the

pertinent deposition testimony is found at App. ‘‘K."’)

In fact, because these depositions took place in the prior FTCA

action against the United States, the Gashos alleged the following

in their Brvens complaint against the Agents:

Upon being advised that Plaintiffs had removed the

aircraft maintenance logs, Agent Mannhalter became

extremely aggressive, demanded return of all aircraft

logs and threatened arrest and incarceration.

7A copy of pertinent portions of John and Sharon Gasho's

deposition testimony is found at App. “L.”’

eRe. ee Ree ee a ee

into the Scottsdale Aviation Center and telephoned the

Scottsdale police.

While waiting for the Scottsdale police, Agent Ball again

ordered the Gashos to immediately return the logbooks and

warned that they would be arrested for removing seized

property to prevent seizure if they refused. The Gashos

ignored the warning and again refused to return the log-

books. After the Scottsdale police officers arrived at the

airport and Agent Ball again warned the Gashos that they

would be arrested if they failed to relinquish the logbooks,

Vining requested an opportunity to speak with the Gashos

alone. Her request was granted, and she was allowed the use

of a vacant office in the airport.

Agent Ball subsequently went back to the office to deter-

mine whether the Gashos would produce the logbooks. The

Gashos and Vining refused to open the office door, requir-

ing Agent Ball to obtain a key from the customer service

desk to enter the room. Agents Ball and Mannhalter in-

formed the Gashos shortly after entering the office that

thev were under arrest for removal of the logbooks from

the aircraft.'” Vining then retrieved the logbooks from her

car and gave them to the Customs Agents. The Scottsdale

police officers assisted Agents Ball and Mannhalter in taking

the Gashos into custody and transporting them to the

Maricopa County Jail. The Gashos were booked and re-

leased after approximately two hours.

Subsequent investigation by Agent Ball revealed that the

Canadian registration markings displayed on the aircraft

were reported as invalid by the Canadian Ministry of Trans-

port because Millard had not completed all of the required

paperwork. Millard filed the necessary paperwork in Can-

ada several weeks later and petitioned the Customs Service

for return of the aircraft. The Custom Service released the

aircraft to Millard approximately six months later. The

‘© Agents Ball and Mannhalter had been in contact with Agent

Howe at various times, and Agent Howe ordered the arrests of

John and Sharon Gasho.

Customs Service also prepared and forwarded an investiga-

tive report to the United States Attorney in Phoenix recom-

mending that the Gashos be criminally prosecuted for

removing the logbooks from the aircraft to avoid seizure.

The United States Attorney declined prosecution.

2. FTCA District Court Action. On December 19,

1989, John and Sharon Gasho filed suit against the United

States in the United States District Court for the District of

Arizona under the FTCA, 28 U.S.C. §§ 1346(b),

2671-2680, for false arrest, false imprisonment, intentional

infliction of emotional distress, and abuse of process based

upon their arrests and the seizure and detention of the

aircraft.'' Millardair joined as plaintiff in that suit on the

abuse of process claim based upon the seizure and detention

of the aircraft.’* The District Court dismissed plaintiffs’

claims in their entirety by orders of July 29, 1991,

March 25, 1992, and September 1, 1992, and entered a final

judgment on September 1, 1992 and an amended final

judgment on November 2, 1992. The Gashos appealed the

judgment to the United States Court of Appeals for the

Ninth Circuit.

3. Bivens District Court Action. On June 24, 1992, the

Gashos and Millardair filed a suit under Bivens v. Six Un-

known Fed. Narcotics Agents, 403 U.S. 388 (1971), against

Agents Ball, Mannhalter and Howe. The District Court

dismissed the action as barred by 28 U.S.C. § 2676 which

bars a Bivens action after a judgment has been entered in an

FTCA action. The Gashos and Millard appealed to the

United States Court of Appeals for the Ninth Circuit.

'' The Gashos also named Agents Ball and Mannhalter as

defendants in the FTCA action; however, the claims were dis-

missed on August 15, 1990 pursuant to Rule 4(j), Federal Rules

of Civil Procedure, because the Gashos failed to accomplish

service within 120 days.

'? Millardair also named Northrup as a defendant, and that

claim was dismissed as well. Millardair did not appeal in the FTCA

acuon.

4. The Ninth Circuit Opinion. The United States

Court of Appeals for the Ninth Circuit consolidated the

FTCA action appeal and the Bivens action appeal. The

Ninth Circuit reversed in part and affirmed in part.'* The

Ninth Circuit first addressed the FTCA claims against the

United States. Relevant to this petition, the court held that

probable cause is an affirmative defense for false arrest and

imprisonment claims under the FTCA and that the United

States bears the burden of production and persuasion for

this defense. Gasho, 39 F.3d at 1427. On reviewing summary

judgment, the Ninth Circuit concluded that the United

States had not shown probable cause because no evidence

purportedly existed to show that the Gashos intended to

steal the logbooks from Customs. Jd. at 1430. The Ninth

Circuit's standard for its holding was that ‘‘probable cause is

lacking if the circumstances relied upon are ‘susceptible to a

variety of credible interpretations not necessarily compati-

ble with nefarious activities.’ United States v. Moore, 483 F.2d

1361, 1363 (9th Cir. 1973) (quoting United States v. Selby,

407 F.2d 241, 243 (9th Cir. 1969) )." Jd. at 1432.

In addressing the claim for arrest in violation of the

Fourth Amendment, the Ninth Circuit analyzed the quali-

fed immunity claim and found that the important facts

alleged by the Gashos related to the Agents’ subjective

intent:

The Gashos produced evidence that Agent John Howe,

who ordered the arrests, later told another Customs

official that the Gashos were arrested because the

Gashos’ refusal to turn over the logbooks ‘made us

mad.’

'> The Ninth Circuit affirmed all claims in both actions relating

to seizure of the aircraft. This issue is not involved in this petition.

In reviewing the Bivens action, the court, pursuant to 28 U.S.C.

§ 2676, upheld the District Court's dismissal of the Gashos’ claims

to the extent any claims were based on seizure of the aircraft

because the court affirmed the District Court's judgment for the

United States on all claims relating to seizure of the aircraft.

Id. at 1438. Focusing upon the Gashos’ allegations of the

Agent's subjective intent, the Ninth Circuit relied solely on

general and irrelevant principles of constitutional law in

concluding that “‘[i]t is clearly established that a person’s

Fourth Amendment rights are violated if the sole basis for

his arrest is his challenge to the officer's authority absent a

warrant.” Jd. at 1439. The Ninth Circuit then purported to

examine the objective reasonableness test applicable to 1is-

sues of qualified immunity under the decisions of this Court.

The Ninth Circuit concluded that “‘a reasonable officer

would have known that the arrests were without probable

cause” because “[t]heir belief was based on mere supposi-

tion.” * Jd.

REASONS FOR GRANTING THE PETITION

Certiorari should be granted because the Ninth Circuit's

decision is inconsistent with and directly contrary to rulings

of the United States Supreme Court on qualified immunity.

First, contrary to Harlow v. Fitzgerald, 457 U.S. 800 (1982),

the Ninth Circuit held that the subjective motivations of the

agents will defeat a claim of qualified immunity. Second,

contrary to Anderson v. Creighton, 483 U.S. 635 (1987) and

Elder v. Holloway, 114 S.Ct. 1019 (1994), the Ninth Circuit

also utilized general and irrelevant principles of constitu-

tional law, as opposed to particularized and relevant consti-

tutional law, in determining whether a constitutional

violation is clearly established. Based on these errors, the

court misapplied the objective test, which is the cornerstone

of a qualified immunity analysis, and improperly focused on

the irrelevant premise that an arrest based on a challenge to

an officer's authority is rendered unconstitutional merely on

the basis of an allegation of malicious intent. The Ninth

Circuit's decision leaves no room for mistaken, but reasona-

ble, arrests: the very essence of the protection offered by

'*On remand, the Gashos contend that the Ninth Circuit

decided the issue of qualified immunity against the Agents as a

matter of law. App. “J"’, infra.

qualified immunity. The Ninth Circuit’s conclusion repudi-

ates this Court's clear holdings on the issue of qualified

immunity. The court’s decision therefore upsets the careful

balance struck in Harlow, which protects society's interest

against unconstitutional government conduct while at the

same time protecting government officials from unlimited

liability for mistaken, but reasonable, judgments. The

Ninth Circuit’s opinion thereby threatens to inhibit all

federal and state law enforcement officials in the perform-

ance of their duties and to subject them to civil liability for

actions or decisions which to date have been protected, even

if they were mistaken. Such a result is inconsistent with this

Court's prior authority, and significantly erodes the protec-

tions heretofore provided by this Court's analysis of quali-

fled immunity.

I. Certiorari Should be Granted to Correct the Ninth

Circuit’s Application of a Subjective Standard to

Defeat a Qualified Immunity Defense.

In Harlow, this Court held that the subjective intent of

federal officials alleged to have violated the constitutional

rights of a plaintiff is irrelevant in determining whether the

federal officials are entitled to qualified immunity. Harlow,

457 U.S. at pp. 817-818. Instead, the Court held that the

proper inquiry is based on an objective standard: ‘‘Govern-

ment officials performing discretionary functions generally

are shielded from liability for civil damages insofar as their

conduct does not violate clearly established Statutory or

constituuonal rights of which a reasonable person would

have known.” Jd. at 818; see also Malley v. Briggs, 475 U.S.

335, 341 (1986) (‘‘Under the Harlow standard, on the

other hand, an allegation of malice is not sufficient to defeat

immunity if the defendant acted in an objectively reasona-

ble manner."’); Anderson, 483 U.S. at 641 (federal agents’

“subjective beliefs about the search are irrelevant’):

cf., Graham v. Connor, 490 U.S. 386, 397 (1989) (‘As in

other Fourth Amendment contexts, however, the ‘reasona-

bleness’ inquiry in an excessive force case is an objective

one: the question is whether the officers’ actions are ‘objec-

tively reasonable’ in light of the facts and circumstances

confronting them, without regard to their underlying intent

or motivation. [Citations omitted.] An officer’s evil inten-

tion will not make a Fourth Amendment violation out of an

objectively reasonable use of force; nor will an officer's

good intentions make an objectively unreasonable use of

force constitutional.’ ).

The Ninth Circuit, however, found that the Agents’

subjective intent was not only relevant, but critical, to the

determination of qualified immunity because it exclusively

relied on the Gashos’ contention that they were arrested

because they ‘“‘made [the Agents] mad.” Inquiry into the

Agents’ subjective intent, however, is irrelevant to a proper

determination of qualified immunity. This Court has con-

sistently held that the proper standard is an objective test

measuring the reasonableness of the Agents’ conduct in

relation to clearly established law. See Anderson, 483 U.S. at

641.

The Ninth Circuit’s blatant error in applying established

Supreme Court authority must be corrected. As this Court

recognized in Harlow:

‘It is not difficult for ingenious plaintiff's counsel to

create a material issue of fact on some element of the

immunity defense where subtle questions of constitu-

tional law and a decisionmaker’s mental processes are

involved. A sentence from a casual document or a

difference in recollection with regard to a particular

policy conversation held long ago would usually, under

the normal summary judgment standards, be sufficient

[to force a trial]. ... The effect of this development

upon the willingness of individuals to serve their coun-

try 1s obvious.’

Harlow, 457 U.S. at 817, n.29, quoting Halperin v. Kissinger,

196 U.S. App. DC 285, 307, 606 F.2d 1192, 1214 (1979),

aff'd. in part, 452 U.S. 713 (1981).

Indeed, by reintroducing a subjective intent test into the

qualified immunity defense, the Ninth Circuit made it virtu-

ally impossible for summary judgment to be granted on

qualified immunity, exactly the outcome that the Ha? ew

Court counseled against. Certiorari should be granted to

correct the Ninth Circuit’s clear misapplication of the well-

established Supreme Court authority interpreting the quali-

fied immunity standard in a Bivens action.

II. Certiorari Should be Granted to Correct the Ninth

Circuit’s Reliance on Only General and Irrelevant

Principles of Constitutional Law to Defeat a Qualified

Immunity Defense.

In Anderson, this Court held that in determining what

constitutes clearly established law for purposes of qualified

immunity, a court may not merely rely on generalized

principles of constitutional law, but must specifically articu-

late the constitutional right in issue. Anderson, 483 U.S. at

640. In other words, the constitutional violation must be

particularized to the facts and circumstances confronting

the government official and must take into consideration

the facts known at that time to the government official. Jd.

Indeed, the Court noted that to hold otherwise would be

“to convert the rule of qualified immunity that our cases

plainly establish into a rule of virtually unqualified liability

simply by alleging violation of extremely abstract rights."’’”

Id. at 639; see also Elder, 114 S. Ct. 1019.'°

' In fact, the Gashos are now arguing below that the Ninth

Circuit granted summary judgment against the Agents as a matter

of law.

'© In Carlson v. Green, 446 U.S. 14 (1980), Chief Justice (then

Justice) Rehnquist recognized the need to particularize the fac-

tual scenario upon which clearly established law is based: “‘it is

often not clear what conduct violates the Constitution... ."" Jd. at

46 (J. Rehnquist, dissenting). The Chief Justice went on to

explain that ‘‘[e]ven where the legal principles are not in flux,

the constitutional standard may be sufficiently general that it is

difficult to predict in advance whether a particular set of facts

amounts to a constitutional violation.” /d. at 46, n.12.

Thus, in order to establish a violation of a clearly estab-

lished constitutional law, reference only to generalized

rights, such as the right to be free from arrest without

probable cause, is insufficient. See Anderson, 483 U.S. at 639

(recognizing as an example that although the right to due

process is well established, it is too over-broad a generaliza-

tion upon which to deny a qualified immunity claim because

it bears ‘‘no relationship to the ‘objective legal reasonable-

ness’ that is the touchstone of Harlow’’). Instead, the deter-

mination must be based upon precedents relevant to the

particular facts and circumstances. In deciding this case, the

Ninth Circuit's inquiry into “‘clearly established law”’ relied

upon the general principle that [t]he Fourth Amendment

right to be free from arrests without probable cause is

clearly established.’’ Gasho, 39 F.3d at 1438. Clearly, under

Anderson and Elder, reliance on such a general principle of

law is inadequate. It does not properly protect the Agents,

but instead fashions a rule of “unlimited liability"’ which this

Court has repeatedly counseled against, and which is con-

trary to this Court’s express holdings on the qualified immu-

nity standard.

Additionally, in assessing what is clearly established law,

the court must rely only upon relevant and applicable law.

See Anderson, 483 U.S. at 640. The Ninth Circuit, however,

ignored this element, and relied on cases which are inappo-

site to the situation here. Specifically, the Ninth Circuit

relied on the following legal principle: ‘‘[i]t is clearly estab-

lished that a person's Fourth Amendment rights are vio-

lated if the sole basis for his arrest is his challenge to the

officer's authority absent a warrant."’ Gasho, 39 F.3d at

1439; (relying on Houston v. Hill, 482 U.S. 451 (1987), cert.

denied, 483 U.S. 1001 (1987), Duran v. City of Douglas, Ariz.,

904 F.2d 1372 (9th Cir. 1990), and United States v. Prescott,

581 F.2d 1343 (9th Cir. 1978) ). The court's reliance on the

aforementioned cases is clearly misplaced.

In Houston, the Court held that a City of Houston Ordi-

nance was unconstitutionally overbroad because it permit-

ted arrests in violation of the First Amendment right of free

speech when individuals merely talked to police officers and

challenged their authority. See Houston, 482 U.S. 451. The

case had nothing to do with probable cause necessary to

effect an arrest under the Fourth Amendment. Therefore,

the case is irrelevant to the situation here.

In Duran," the issue was whether an officer had probable

Cause to stop a vehicle based solely on the fact that the

passenger made obscene gestures and statements to the

police officer. See Duran, 904 F.2d 1372. The court held

that probable cause was lacking because the actions were

not illegal. Jd. at 1377. The individual also alleged that he

was stopped in retaliation for insulting the police officer.

The court found that the police officers’ conduct in that

situation violated the First Amendment. /d. at 1378 . In this

case, the Gashos have never alleged, argued or presented

evidence of their arrest violating their First Amendment

right of freedom of speech. Thus, this case, relied upon by

the Ninth Circuit, is also irrelevant.

The Ninth Circuit also relied upon its decision in Prescott.

In Prescott, after the defendant refused to allow law enforce-

ment officers entry into her apartment, the officers forcibly

entered the apartment without a warrant to effect an arrest

of a third person not living in the defendant's residence.

Prescott was subsequently arrested for being an accessory

after the fact for refusing to permit the officers entry into

her apartment. Prescott sought to have the evidence found

in the apartment, including the third party, excluded as the

fruits of an illegal search. Jd. at 1347. The Ninth Circuit

agreed that the warrantless entry was unconstitutional ab-

sent exigent circumstances and remanded the case to deter-

mine if exigent circumstances existed. Jd. at 1350. The

court then addressed the issue of whether the defendant's

failure to allow a warrantless entry into the apartment could

be used as evidence against her in the trial. The court

concluded that, like the Fifth Amendment privilege against

"Interestingly, Duran was decided after the Gashos’ arrest in

1988. See Elder, 114 S.Ct. 1019.

self incrimination, evidence of ‘‘passive”’ refusal to consent

to a warrantless search is privileged conduct which cannot

be used as evidence of criminal wrongdoing. 7d. at 1351.

The Prescott case is not at all applicable to the facts in this

case. The arrest of the Gashos occurred in a public building,

the Scottsdale Municipal Airport. The Court’s ruling in

Prescott, which centered on the defendant’s refusal to allow

entry of her home, has no bearing here.'® Moreover, the

fact that evidence of ‘‘passive’’ refusal to comply with a

warrantless entry of a house cannot be introduced at trial,

or is “‘privileged,”’ has nothing to do with whether the

Agents had a reasonable basis for probable cause to arrest

the Gashos for failing to return the logbooks. This case

sheds no light on whether the constitutional violation al-

leged by the plaintiffs involved clearly established law.

In short, assuming a reasonable law enforcement officer

was fully aware of Hill, Duran, and Prescott, this knowledge

would not in any way impact whether the officer should

know that the Fourth Amendment prohibited arresting the

Gashos at Scottsdale Municipal Airport because they failed

to return the logbooks. Simply stated, the Ninth Circuit's

evaluation of clearly established constitutional law was gen-

eralized and irrelevant, resulting in the very real potential

for long term detrimental effects on law enforcement activi-

ties. The Ninth Circuit decision will chill law enforcement

officials, both on the federal and state levels,'? from per-

forming their duties if they can be sued based upon viola-

tions of general principles of constitutional law or

'* Indeed, the Prescott court recognized that “the police need no

warrant to arrest a felony suspect on probable cause in a public

place.”’ Jd. at 1348, citing United States v. Watson, 423 U.S. 411

(1976).

'* This Court has repeatedly recognized that qualified immunity

under a Bivens action and a § 1983 action are identical because

there is no legitimate reason to hold federal and state law enforce-

ment officials to differing standards of conduct. See e.g., Malley,

475 U.S. at 340, n.2

constitutional principles which have no predictable, specific

application to the situation they are facing. Such a result is

clearly contrary to this Court's well established authority.

The proper inquiry for the question of whether a “clearly

established law’’ was violated considers what relevant consti-

tutional law existed at the time relating to probable cause to

arrest for taking property from a seized vehicle. No law was

clearly established at the relevant time excepting from

seizure the contents of a vehicle that had been seized. To

the contrary, many decisions have indicated that seizure of a

vehicle gives agents the right to search items in the vehicles

either at the time of seizure or after the seizure. See, e¢.g.,

Colorado v. Bertine, 479 U.S. 367 (1987) (holding warrant-

less inventory search of backpack found in impounded

vehicle does not violate Fourth Amendment); Chambers v.

Maroney, 399 U.S. 42 (1970) (holding warrantless search of

vehicle after it was impounded and moved to police station

not violative of Fourth Amendment). These cases, although

not directly on point, suggest that the seizure of a vehicle

includes the seizure of its contents, because an officer can

later search the contents without a warrant. Thus, the law

was not Clearly established that seizure of a vehicle does not

include seizure of the contents. Consequently, the Ninth

Circuit's opinion threatens to provide authority for rulings

that seizure of any vehicle does not include seizure of the

vehicle's contents.

The Ninth Circuit should have examined the objective

reasonableness of the Agents’ conduct in light of the rele-

vant constitutional law. At the time of the arrests, 18 U.S.C.

§ 2232*° proscribed removing property in order to prevent

*° The fact that the Ninth Circuit held no probable cause in fact

existed under this statute is irrelevant. Mitchell v. Forsyth, 472 U.S.

511 (1985). In Mitchell, the Court held that the collateral order

doctrine applied to the defense of qualified immunity and that

denial of a motion for summary judgment based on the qualified

[cont'd]

seizure before, during and after seizure. 18 U.S.C.

§ 2232(a); see also United States v. Woodring, 536 F.2d 598

(5th Cir. 1976), cert. denied, 129 U.S. 1003 (1976). In

Woodring, the defendant was convicted of violating

18 U.S.C. § 2232(a). Two customs agents arrived to seize a

yacht and found it heading toward an inlet in the Atlantic

Ocean. The agents gave chase and came to within 75 feet of

the yacht. The officers motioned for the defendant to stop

the yacht. The defendant did not stop and continued out to

sea. The agents called for a helicopter which circled the

yacht numerous times and attempted to communicate with

those on board, using both sirens and a public address

system. Soon thereafter, a coast guard cutter made radio

contact with the yacht and told the defendants to stop. The

defendant refused, escaped and was arrested three days

later. The defendant argued that the evidence was insuffh-

cient to submit to the jury the question of his knowledge of

a lawful attempt to seize the yacht. The Fifth Circuit held

that the defendant's knowledge of a custom official’s intent

to seize the yacht was ‘‘clearly a reasonable inference from

immunity defense was immediately appealable. Jd.. The basis for

the ruling was that

{a} claim of immunity is conceptually distinct from the

merits of the plaintiff's claim that his rights have been

violated. [Citation omitted.] An appellate court review-

ing the denial of the defendant's claim of immunity need

not consider the correctness of the plaintiff's version of

the facts, nor even determine whether the plaintiff's

allegations actually state a claim. All it need determine ts

a question of law: whether the legal norms allegedly

violated by the defendant were clearly established at the

time of the challenged actions, or in cases where the

district court has denied summary judgment for the

defendant on the ground that even under the defen-

dant’s version of the facts the defendant's conduct vio-

lated clearly established law, whether the law clearly

proscribed the actions the defendant claims he took.

Id. at 527-528. In other words, whether probable cause to arrest

was actually present is irrelevant; instead, the proper inquiry is

what the clearly established law was at the time.

the factual showing on the record of the numerous attempts

to halt the vessel and official demands for him to stop.”’ Jd.

at 599. Moreover, the court held that the defendant's

awareness of the attempt to seize the yacht and the proof of

his intent required under § 2232 were questions for the

jury. Id. at 600.

This case shows that the relevant federal law in issue

relating to the particular facts surrounding the arrest of the

Gashos was not clearly established. The facts known by the

Agents establish that the Gashos were aware that the air-

craft was seized. Indeed, the Gashos asked permission to

enter the aircraft, thereby indicating to the agents their

clear belief that the contents of the aircraft were seized as

well.’ The Agents gave specific instructions that the Gashos

could remove personal property as well as a radio, but gave

no permission to remove the aircraft’s logbooks. After the

Agents became aware that the logbooks were removed, they

repeatedly asked for them back and told the Gashos they

7! Additionally, the Agents could have believed that the Gashos

knew the logbooks were seized based on the facts that both

Gashos were pilots, that the Gashos’ business was to restore

airplanes, that certain Federal Aviation Administration regula-

tions often require logbooks to remain and be transferred with an

aircraft (see eg, 14 C.F.R. § 121. 380(b)(3); 14 C.F.R.

§ 135.439(b) (3) ), and that the Gashos asked permission to enter

the plane. Based on these facts, a reasonable customs agent could

have believed that the Gashos removed the logbooks in order to

prevent seizure after they were seized. See 18 U.S.C. § 2232(a).

Moreover, even assuming that the Gashos’ initial knowledge of

the seizure of the logbooks was not reasonably indicated, the

agents specifically told the Gashos that the logbooks were seized

and requested their return. When the Gashos refused, a reasona-

ble agent could have believed that the Gashos intended to prevent

seizure of the logbooks, an action clearly prohibited under

18 U.S.C. § 2282.

would be arrested if they did not comply.”* Not only did the

Gashos refuse, they were evasive about whether they in fact

had the logbooks. Even if the Ninth Circuit properly inter-

preted the statute, it cannot be said that the law was so

clearly established that only ‘the plainly incompetent or

those who knowingly violate the law,”’ Malley, 475 U.S. at

341, would have been aware that the arrests of the Gashos

were unlawful.

Rather than address relevant constitutional standards, the

Ninth Circuit relied upon general principles of constitu-

tional law. The objective test of qualified immunity, as set

forth in Harlow, however, is ‘intended to provide govern-

ment officials with the ability ‘reasonably [to] anticipate

when their conduct may give rise to liability for damages.’ "’

Anderson, 483 U.S. at 646, quoting Davis v. Scherer, 468 U.S.

183, 195 (1984). Indeed, the qualified immunity standard is

intended to give ample room for mistaken judgments by

protecting “‘all but the plainly incompetent or those who

knowingly violate the law.” Malley, 475 U.S. at 341. This

Court again recently reiterated that ‘‘[e]ven law enforce-

ment officials who ‘reasonably but mistakenly conclude

probable cause is present’ are entitled to immunity.” Hunter

v. Bryant, 502 U.S. 224, 227 (1991). The Ninth Circuit's

opinion will necessarily chill law enforcement officials by

requiring them to assess their actions exclusively against

very general and irrelevant principles before they act. They

no longer have the higher degree of certainty provided by a

test vw hich looks to particularized precedent and the individ-

ualized facts before the officer.

As in Hunter, the Ninth Circuit has again erred in its

application of the qualified immunity standard. As stated

2? Contrary to Harlow's admonition to exercise caution and

reflection, the Ninth Circuit is suggesting the better course of

action would have been to have the Agents immediately arrest the

Gashos. In this case, the Agents exercised restraint and gave the

Gashos repeated opportunities to return the logbooks before they

were arrested.

supra, the Ninth Circuit improperly injected a review of the

agents’ subjective intent into the qualified immunity stan-

dard and did not properly assess, articulate and apply the

particularized constitutional law that was relevant to the

factual circumstances present. These clear errors caused the

Ninth Circuit to improperly analyze the objective reasona-

bleness test of qualified immunity, stripping the mistaken,

albeit reasonable, judgments of law enforcement officials

from the scope of law enforcement judgments previously

protected under federal law by the qualified immunity

doctrine. Certiorari should be granted to correct the errors

of the Ninth Circuit and restore the certainty and protec-

tion provided by the qualified immunity defense.

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for writ of certiorari.

Dated: Phoenix, Arizona, April 26, 1995.

N. WARNER LEE

Counsel of Record

JOHN C. LEMASTER

WILLIAM A. RICHARDS

Jami L. Schulman

Ryley, Carlock & Applewhite

Suite 2700

101 North First Avenue

Phoenix, Arizona 85003-1973

(602) 258-770]

Counsel for Petitioners Ball and

Mannhalter

GARY H. BURGER

Jones, Skelton & Hochuli

2901 North Central Avenue

Suite 800

Phoenix, Arizona 85012-2703

(602) 263-1700

Counsel for Petitioner Howe

APPENDIX “A”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN R. GASHO, SR.; SHARON L.

GASHO,

Plaintiffs-Appellants,

v. No. 92-16988

UNITED STATES OF AMERICA; ? D.C. No.

NORTHROP WORLDWIDE AIRCRAFT CV-89-02077-RCB

SERVICES, INC., an Oklahoma

corporation, et al.,

Defendants-Appellees.

JOHN R. GASHO, SR.; SHARON L.

GASHO; MILLARDAIR, LTD., a

Canadian corporation, No. 93-15727

Plainuffs-Appellants, D.C. No.

v. CV-92-01211-RCB

WILLIAM L. BALL; ROGER OPINION

MANNHALTER; JOHN J. HOwE, JR.,

Defendants-Appellees.

Appeals from the United States District Court

for the District of Arizona

Robert C. Broomfieid, District Judge, Presiding

Argued and Submitted

March 17, 1994—San Francisco, California

Filed November 2, 1994

Before: Dorothy W. Nelson, Robert Boochever

and Robert R. Beezer, Circuit Judges

Opinion by Judge Beezer

COUNSEL

Merwin D. Grant, Christine R. Taradash, and Maria

Crimi Speth, Beus, Gilbert & Morrill, Phoenix, Arizona, for

the plaintiffs-appellants.

Barbara L. Herwig and Wendy M. Keats, United

States Department of Justice, Washington, D.C., for the

defendants-appellees.

OPINION

BEEZER, Circuit Judge:

These cases involve the seizure of an aircraft and the

arrest of its owners, John and Sharon Gasho, by the United

States Customs Service. The Gashos filed false arrest and

other tort claims against the United States, pursuant to the

Federal Tort Claims Act (FTCA), 18 U.S.C. §§ 1346(b),

2674. The district court dismissed the Gashos’ action. The

Gashos then filed a Bivens action against the Customs

agents, claiming that the aircraft seizure and personal ar-

rests violated their Fourth and Fifth Amendment rights.

The district court dismissed the Bivens action pursuant to

28 U.S.C. § 2676. We have jurisdiction over both of the

Gashos’ appeals pursuant to 28 U.S.C. § 1291. We reverse

in part, affirm in part and remand for further proceedings.

John and Sharon Gasho own an aircraft restoration com-

pany in Tucson, Arizona. On June 24, 1988, the Gashos

flew a McDonnell Douglas DC-3 aircraft to Scottsdale Mu-

nicipal Airport in order to meet with John Zarcone, a

Federal Aviation Administration (FAA) inspector. The

Gashos were selling the aircraft to Millardair, Ltd., a Cana-

dian corporation, and they wanted to terminate the United

States registration of the aircraft before export.

At the airport, Zarcone issued the Gashos several docu-

ments, including a special flight authorization allowing the

aircraft to be flown to the United States-Canada border

with Canadian registry markings. The authorization stated

that Canada would not issue a valid Canadian registration

until the aircraft actually entered into Canada.' The Gashos

and Zarcone removed the U.S. registration markings and

affixed the Canadian markings to the aircraft. The Gashos

then returned to their hotel room.

An air traffic controller at the airport noticed that the

registration markings on the DC-3 had been changed after

its arrival. He alerted William Gately, the Customs agent in

charge. Gately dispatched Special Agents William Ball and

Roger Mannhalter to investigate.” The agents confronted

the Gashos at their hotel room. John Gasho explained that

he obtained the Canadian registry markings from the air-

craft's new owner, Millardair, and that an FAA inspector

had assisted in changing the registration markings. He

explained that the FAA inspector issued a special authoriza-

tion permit, which was inside the aircraft, allowing the

' Millardair, a co-appellant, had applied to Canadian authorities

for a Canadian registration and had been assigned a Canadian

number; however, official registration was to be contingent upon

the aircraft's entry into Canada.

* In a deposition, Gately testified that he also telephoned Cor-

poral Karol Waversfeld of the Royal Canadian Mounted Police.

He said Waversfeld told him the registration markings were

invalid. Waversfeld gave a different account in a deposition. He

testified that Lorraine Gray of the Canadian Transport Ministry

told him that an application for Canadian registry was pending

and that the numbers could not be used until the application was

approved. Waversfeld testified that he relayed this same informa-

tion to Gately or his representative. There is also a dispute

regarding when the information was relayed to Gately. The

United States contends Gately knew about the information before

the seizure of the aircraft. The Gashos, however, point to testi-

mony by Waversfeld and Gray indicating that Gately did not

receive the information until after the seizure.

aircraft to be flown to Canada. Agent Ball began advising

John Gasho of his Miranda rights. The Gashos then sum-

moned their daughter, Pamela Vining, a Phoenix attorney,

for legal counsel.

The agents, the Gashos and Vining went to the Scottsdale

airfield. There, the Gashos showed the agents the special

flight authorization allowing them to fly the aircraft with

Canadian markings. While the document allowed the air-

craft to fly with the Canadian markings, the agents decided

that the document did not establish the validity of the

Canadian markings. Zarcone could not be reached by tele-

phone. The agents placed a lock on the aircraft's propeller,

believing they had probable cause to seize the aircraft for

the “knowing[ ] and willful[ ]” display of ‘false or mis-

leading” markings, in violation of 49 U.S.C. § 1472.°

After seizing the aircraft, the Customs agents gave per-

mission to Sharon Gasho to enter the aircraft to remove

personal belongings and the aircraft's radio. The Customs

agents did not tell her that any items inside the aircraft were

seized. Among the items she removed were the aircraft's

logbooks. Sharon Gasho then exited the aircraft, carrying

the items in a plastic bag. At that time, John Gasho and the

Customs agents were standing on the tarmac near the

aircraft. In the presence of the Customs agents, John Gasho

called out to his wife and asked her whether she removed

the logbooks. She replied, ‘Yes, I did.’’ Sharon Gasho then

placed the plastic grocery bag containing the logbooks and

other personal belongings into Vining’s automobile. It is

undisputed that the agents did not protest or attempt to

stop Sharon Gasho from removing the logbooks and placing

* The section prohibits persons from ‘“‘knowingly and willfully”

displaying registration markings on an aircraft that are ‘‘false or

misleading” as to the nationality or registration of the aircraft. 49

U.S.C. § 1472(b)(1)(H).

them in the vehicle.* In a deposition, Agent Ball was cross-

examined as follows:

Q. Did you stop her at that time?

No.

Did you say anything to her at that time?

No.

Did you protest in any way?

No.

Or OF? OD >

All right. What happened next?

A. Shortly thereafter we went inside the aviation center.

The subject of the logbooks was not raised until after the

parties entered the Scottsdale Aviation Center to make

photocopies of the FAA documents. Ball and the other

agents then told the Gashos that the seizure of the aircraft

included the logbooks and demanded that the Gashos re-

turn them. The Gashos refused. They told the agents that a

warrant was required. The agents repeatedly warned the

Gashos that they would be arrested if they refused to turn

over the logbooks. The Gashos called the local police, but

they refused to intervene. At Vining’s request, the agents

allowed Vining to meet with the Gashos in a private, glass-

enclosed office. After several minutes, the agents sought

entry to the office. Although there is a dispute over whether

the Gashos refused to open the door, the agents entered

with a key and arrested the Gashos. While the agents were

handcuffing her parents, Vining retrieved the logbooks

from her car and gave them to the Customs agents.

* Although the district court's opinion stated that the parties

‘disagree’ on this point, in the same opinion the court later noted

that the agents did not immediately react upon learning that the

logbooks had been removed from the aircraft. See Order Granting

Motion for Summary Judgment. § 17.

The Gashos were booked for violation of 18 U.S.C. § 549,

which forbids unlawful removal of property from Customs

custody. During booking, an Assistant United States Attor-

ney told Agent Mannhalter that his office would not prose-

cute the Gashos. Nevertheless, Agent Mannhalter’s

supervisor, John Howe, ordered Mannhalter to continue

the booking and to tell the Gashos that charges would be

filed. In October 1989, sixteen months after the arrests, the

United States Attorney formally declined to prosecute the

Gashos.

A few weeks after the seizure and the arrests, Millardair

completed the Canadian registration for the aircraft. The

United States Attorney declined to initiate forfeiture pro-

ceedings against the DC-3 and advised Customs to release

the aircraft. The regional counsel for Customs agreed with

the United States Attorney that the aircraft should be

released but said the release should be conditioned upon

the receipt of an agreement from the Gashos releasing

Customs and its agents from all civil liability. Six months

after it was seized, the aircraft finally was released to

Millardair. No release of liability was executed by the

appellants.

The Gashos filed suit against the United States under the

FTCA, seeking damages for false arrest and false imprison-

ment, intentional infliction of emotional distress, and abuse

of process.” The district court granted summary judgment

to the government on the false arrest and imprisonment

claims and the intentional infliction of emotional distress

claim. By subsequent order, the district court dismissed the

abuse of process claim for failure to state a claim, pursuant

to Federal Rule of Civil Procedure 12(b) (6).

Following the dismissal of the FTCA claims, the Gashos

filed a Bivens action against Agents Ball and Mannhalter,

and Howe, the agents’ supervisor. The Gashos claimed that

> The Gashos also filed a claim against Northrop Worldwide

Aircraft Services, Inc. for damage incurred to the aircraft while it

was in Customs custody.

the agents arrested them without probable cause, violating

their Fourth and Fifth Amendment rights. In addition, in a

claim joined by Millardair, the Gashos contended that the

agents seized the aircraft without probable cause or due

process.

In support of their Bivens claims, the plaintiffs produced a

deposition from a Customs Agent who testified that he

deliberately avoided assisting in the arrest because he had a

“bad feeling about the situation”’ and did not want to be

involved. In addition, Customs Pilot David Kunz testified

that Howe told him that the Gashos were arrested, in part,

because the Gashos’ defiance in refusing to turn over the

logbooks ‘‘made us mad.”’ Kunz, who took contemporane-

ous notes of the conversation, testified that Howe also told

him that Customs was pursuing criminal proceedings

against the Gashos in order to “protect ourselves in case of

a lawsuit later.”

The defendants moved to dismiss the Bivens claim pursu-

ant to Fed.R.Civ.P. 12(b)(6) and also moved for summary

judgment, arguing that 28 U.S.C. § 2676 operates as a

complete bar to the Bivens action and, alternatively, that the

defendants were entitled to qualified immunity. The district

court dismissed the claim, concluding that it was barred by

28 U.S.C. § 2676.

We first address whether the district court erred in grant-

ing summary judgment to the United States on the FTCA

claims alleging false arrest and imprisonment. Summary

judgment is reviewed de novo. Jones v. Union Pac. R.R., 968

F.2d 937, 940 (9th Cir. 1992). Viewing the evidence in the

light most favorable to the nonmoving party, we determine

whether there are genuine issues of material fact and

whether the district court correctly applied the relevant

substantive law. Gizoni v. Southwest Marine, Inc., 909 F.2d

385, 387 (9th Cir. 1990), affd., 502 U.S. 81 (1991).

Under the FTCA, the United States is liable for common

law torts committed by federal employees within the scope

of their federal employment. See 28 U.S.C. §§ 1346(b),

2674. The FTCA allows liability for false arrest or false

imprisonment when such torts are committed by federal law

enforcement officers. 28 U.S.C. § 2680(h). Liability is de-

termined by the tort law of the state where the claim arose.

Id.

[1] Under Arizona law, probable cause is an absolute

defense to a claim of false arrest and imprisonment. Hockett

vu. City of Tucson, 678 P.2d 502, 505 (Ariz. Ct. App. 1983).

The defendant bears the burdens of production and persua-

sion for any defense. See In re Estate of Page, 865 P.2d 128,

135 (Ariz. Ct. App. 1993). Accordingly, as the party mov-

ing for summary judgment, the United States must show

that there is no genuine issue as to probable cause and that

it is entitled to judgment as a matter of law. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The material facts and circumstances of the arrests are

undisputed: Sharon Gasho removed logbooks from the

seized aircraft after being given permission to enter the

aircraft and remove personal belongings and the radio;

Customs agents did not attempt to prevent her from remov-

ing the logbooks; the Customs agents did not demand the

logbooks until after they had been placed in Vining’s car,

and the Gashos later refused to comply with the agents’

request to turn over the logbooks because they believed the

officers needed a warrant. In civil cases, the existence of

probable cause is a question for the jury. McKenze v. Lamb,

738 F.2d 1005, 1008 (9th Cir. 1984). However, when there

is NO genuine issue of fact, summary judgment is appropri-

ate if no reasonable jury could find an absence of probable

cause under the facts. Jd. In making the probable cause

determination, we construe the evidence in the light most

favorable to the party opposing summary judgment — in

this case, the Gashos. See 1d.

Probable cause is more than mere suspicion. Probable

cause exists when, “under the totality of circumstances

tan cll

known to the arresting officers, a prudent person wou!d

have concluded that there was a fair probability” that a

crime was committed. United States v. Smith, 790 F.2d 789,

792 (9th Cir. 1986). Because probable cause must be evalu-

ated from the perspective of ‘“‘prudent men, not legal tech-

nicians,”’ Brinegar v. United States, 338 U.S. 160, 176 (1949),

an officer need not have probable cause for every element

of the offense. United States v. Thornton, 710 F.2d 513, 515

(9th Cir. 1983). However, when specific intent is a required

element of the offense, the arresting officer must have

probable cause for that element in order to reasonably

believe that a crime has occurred. Kennedy v. Los Angeles

Police Dep’t, 901 F.2d 702, 705 (9th Cir. 1989).

[2] The Gashos were arrested pursuant to 18 U.S.C.

§ 549, which forbids the ‘unlawful remov[al]” of property

under the control or custody of Customs. The United States

conceded that no probable cause for the Gashos’ arrests

existed under 18 U.S.C. § 549. The statute requires ‘‘feloni-

ous intent," see United States v. Slocum, 708 F.2d 587, 596

(llth Cir. 1983), and the district court noted that there

was no evidence that the Gashos had such intent. The

district court held instead that the arrests were justified

under either of two other statutes:° 18 U.S.C. § 2233, which

° We agree with the district court that a lack of probable cause

under 18 U.S.C. § 549 does not preclude the United States from

asserting the defense. Probable cause may still exist for a closely

related offense, even if that offense was not invoked by the

arresting officer, as long as it involves the same conduct for which

the suspect was arrested. See United States v. Rambo, 789 F.2d 1289,

1294 (8th Cir. 1986). It 1s immaterial that the officer did not have

in mind the specific charge upon which the arrest can be justified.

Id.

The Gashos urge us to follow Santiago v Fenton, 891 F.2d 373,

385-86 (lst Cir. 1989). Santiago held that if a suspect is arrested

for the wrong reason, the arrest cannot be justified later by the

fact that the officer might have had another good reason. /d. at

[cont'd }

10a

prohibits forcible rescue of seized property, or 18 U.S.C.

§ 2232, which prohibits removal of property to prevent

seizure.’

385. Santiago is easily distinguished on its facts. [he officer in

Santiago attempted to justify the arrest by pointing to different

conduct by the arrestee. Here, as in Rambo, the United States is

citing a closely related offense for the same conduct by the

arrestee.

“Only the facts and circumstances relating to the arrests are

relevant to the inquiry into whether probable cause existed under

either § 2233 or § 2232. The alleged unlawfulness of the seizure

of the aircraft is immaterial to whether there was probable cause

to arrest the Gashos, because there is no evidence of “‘bad faith,

unreasonable force, or provocative conduct” in connection with

the seizure. See United States v. Garcia, 516 F.2d 318, 320 (9th

Cir.) (‘‘We will not apply any self-help right to immunize suspi-

cious conduct from consideration in determining whether there is

probable cause to arrest or to search.’’), cert. dented, 423 U.S. 934

(1975); see also United States v. Span, 970 F.2d 573, 580 (9th Cir.

1992) (stating that the right to interfere physically with ‘‘unlaw-

ful’ police action is ‘not triggered by absence of probable cause,

but rather by the officer's bad faith or provocative conduct” —

where it appears that the “‘officer is engaged in a ‘frolic of his

own'"’) (quoting United States v. Martinez, 465 F.2d 79, 82 (2d

Cir. 1972)), cert. dented, 113 S.Ct. 1283 (1993).

If, for example, the officers knew their seizure of the aircraft was

without probable cause, the officers would have acted in bad faith

and any physical interference to that seizure would be immune.

Normally, the existence of bad faith would be a jury question.

However, there is no genuine issue here because the evidence put

forth by the appellants is insufficient to lead a reasonable jury to

conclude that the officers seized the aircraft in ‘‘bad faith.’’ The

Gashos speculate that Supervisor John Howe, who had been

newly promoted as supervisor, ordered the seizure to ‘‘score

points after his promotion.” This could not support a jury finding

that Howe was engaged in a “‘frolic of his own."

[3] The Gashos argue that the Customs agents did not

have probable cause to arrest the Gashos for violating

§ 2233, the ‘forcible rescue’’ statute. Section 2233 applies

to any person who

forcibly rescues, dispossesses, or attempts to rescue or

dispossess any property, articles, or objects after the

same shall have been taken, detained or seized by any

officer or other person under the authority of any

revenue law of the United States, or by any person

authorized to make searches and seizures... .

18 U.S.C. § 2233 (emphasis added). As its plain language

indicates, the ‘‘forcible rescue” statute is exclusively con-

cerned with the rescue of property after it has been seized

by an officer of the United States. United States v. Spicer, 547

F.2d 1228, 1233 (5th Cir.), cert. denied, 430 U.S. 987

(1977). The offense of ‘‘forcible rescue’ has three ele-

ments: (1) seizure. of the property by the United States,

(2) knowledge by the defendant that the property has been

seized and that removal is unlawful, and (3) forcible and

willful removal of the property from the dominion and

control of the government. See United States v. Sanders, 862

F.2d 79, 83 (4th Cir. 1988); cf. United States v. Hardaway,

731 F.2d 1138, 1140 (5th Cir.) (interpreting forcible res-

cue under analogous provision in Internal Revenue Code,

26 U.S.C. § 7212(b) ), cert. denied, 469 U.S. 865 (1984).

The last two elements require specific intent: the defen-

dant must not merely intend to remove the property but

also intend to frustrate a lawful seizure. See Spicer, 547 F.2d

at 1232 (forcible rescue occurs when property is taken

“with the purpose to use it in a manner that defie[s] and

frustrate[s] the warrant of seizure."’) When specific intent

is an element of the alleged offense, ‘[ p]jart of the probable

cause analysis must be whether the officers could believe

that [the person arrested] had the necessary intent.” Ken-

nedy, 901 F.2d at 705. The agents must have reasonably

12a

believed that Sharon Gasho intended to steal the logbooks

from Customs.”

It is fundamental that a person is not criminally responsi-

ble unless criminal intent accompanies the wrongful act.

Morissette v. United States, 342 U.S. 246, 251 (1952) (stating

that a crime is the ‘‘concurrence of an evil-meaning mind

with an evil-doing hand’’). Consequently, to have probable

cause to believe that a crime has been committed, an

arresting officer would have to reasonably believe that

Sharon Gasho intended to defy and frustrate the seizure at

the time that she removed the logbooks.

[4] Specific intent to frustrate seizure minimally requires

that an actor know that the goods are seized. The actor

cannot know that goods are seized unless the government

gives notice of their seizure. See Sanders, 862 F.2d at 83

(seizure exists when the government has “lawfully asserted

dominion and lawfully maintained custody” over the prop-

erty). In this case, an officer could not reasonably believe

that Sharon Gasho had specific intent when she took the

* The Supreme Court has insisted that probable cause analysis

cannot rest on “rigid legal rules’’ but rather must rest on a

“commonsense” approach that is “practical” and ‘‘nontechnical."’

Illinows v. Gates, 462 U.S. 213, 230 (1983). We are mindful of this

approach. In requiring probable cause for specific intent when

specific intent is an element of the crime, we are not subjecting

our probable cause analysis to ‘rigid legal rules."’ We believe it is a

matter of common sense that before arresting a person for taking

property in the custody of Customs, an officer should reasonably

believe that the person intends to steal.

* Cf United States v. Harris, 521 F.2d 1089, 1093 (7th Cir. 1975)

(warning stickers on seized automobile were ‘‘formal indication

that the car had been seized"’); United States v. Main, 598 F.2d

1086 (7th Cir.) (verbal notice that vehicle was seized and tearing

of seizure stickers from rental property), cert. denwd, 444 U.S.

943 (1979); United States v. Scolnick, 392 F.2d 320 (3d Cir.)

(breaking of bank window, removal of seizure seal on box, and

removal of safe deposit box and contents from bank), cert. denied,

392 U.S. 931 (1968).

~— ae ee

‘

13a

logbooks. While Customs gave notice of the aircraft's

seizure by placing a lock on a propeller, Customs asserted

no dominion and maintained no custody over the logbooks

before Sharon Gasho boarded the aircraft. See id. On the

contrary, Customs allowed Sharon Gasho to enter the air-

craft specifically for the purpose of removing objects from

inside. While Customs allowed her inside the aircraft only

to retrieve ‘‘personal belongings” and the aircraft’s radio,

these instructions were insufficient notice that the logbooks

were seized, as the logbooks are personal property. Absent

notice of seizure, it was unreasonable to believe that Sharon

Gasho knew the logbooks were seized or that their removal

was forbidden when she took them. There was no probable

cause to arrest Sharon Gasho under § 2233. It follows that

the Customs agents had no probable cause to arrest John

Gasho, as he did not participate in removing the logbooks.

The United States argues that the Gashos were ‘‘continu-

ally and indisputably aware” that removal of the logbooks

was forbidden, because logbooks are an ‘‘appurtenance”’ to

an aircraft. We disagree. It is unreasonable to infer specific

intent merely on the notion that the Gashos should have

known that the logbooks were part of the aircraft.'”

See Phillips v. United States, 356 F.2d 297, 303 (9th Cir.

1965) (only actual knowledge, not constructive knowledge,

of invidious act allows an inference of specific intent), cert.

dened, 384 U.S. 952 (1966). Knowledge that the logbooks

were seized as an appurtenance to the aircraft cannot be

imputed as a matter of common sense. If the logbooks were

seized as an appurtenance, it was incumbent upon the

agents to inform Sharon Gasho of that fact before she

entered the aircraft, either by physically securing the log-

The government points to deposition testimony by John

Gasho that he was aware that logbooks are typically transferred

with the aircraft's title upon sale. This testimony is not probative,

or two reasons. First, 1t does not establish that John Gasho knew

that the logbooks transferred with the aircraft upon seizure.

Second, it is irrelevant to determining the facts and circumstances

known by the agents at the time of arrest.

l4a

books or by verbally informing her. They neglected to do

so. Indeed, they said and did nothing even when she took

the logbooks with their knowledge and announced to her

husband in the agents’ presence that she had removed the

logbooks from the aircraft.

In short, probable cause for forcible rescue is lacking

unless there is a ‘‘fair probability” that the person knew that

removal of the goods was forbidden and took the goods

with the intent to steal them. The facts and circumstances

here did not give the agents probable cause to believe the

Gashos had such knowledge or intent when Sharon Gasho

took the logbooks.

[5] The government alternatively argues that probable

cause existed to arrest the Gashos under § 2232, which

prohibits persons from physically interfering with searches

and seizures. Section 2232 provides:

(a) Physical interference with search. — Whoever,

before, during, or after seizure of any property by

any person authorized to make searches and seizures,

in order to prevent the seizure or securing of any goods,

wares, or merchandise by such person, staves, breaks,

throws overboard, destroys, or removes the same,

shall be fined not more than $10,000 or imprisoned

not more than five years, or both.

18 U.S.C. § 2232(a) (emphasis added).

In contrast to § 2233, § 2232 is concerned primarily with

the destruction or removal of property before it is seized. See

Spicer, 547 F.2d at 1233. An actor is liable only if he

removes or destroys the property with the purpose of

preventing seizure. See, e.g., United States v. Peterson, 812

F.2d 486 (9th Cir. 1987) (defendant threw marijuana

overboard and set ship on fire). An essential element of

§ 2232 is that the defendant have the “specific intent"’ to

prevent the seizure of the goods. United States v. Gibbons,

15a

331 F.Supp. 970, 972 (D. Del. 1971), affd., 463 F.2d 1201

(3d Cir. 1972).

The specific intent inquiry for § 2232 closely mirrors the

inquiry under § 2233. For an officer to reasonably believe

that the actor intended to prevent seizure in violation of

§ 2232, the facts and circumstances available to the officer

must suggest that the actor had some notice that the goods

were subject to imminent seizure. Such notice exists when

the officer serves a search warrant or engages the defendant

in “hot pursuit.” See id.

[6] Customs gave Sharon Gasho permission to enter the

aircraft and remove personal belongings. It is undisputed

that Sharon Gasho removed the logbooks from the seized

aircraft, put the logbooks and other personal belongings in

a plastic bag, and then placed the bag in her daughter's car.

But the fact that she “removed” the logbooks does not

establish probable cause under § 2232, for the same reason

that no probable cause existed under § 2233: because the

government gave no notice that they intended to seize the

logbooks, the Customs agents had no reasonable basis to

believe that Sharon Gasho knew that the removal of the

logbooks was forbidden or that she intended to prevent

their seizure at the time that she took them from the

aircraft.

Eventually, the agents did give notice to the Gashos that

they intended to seize the property. But the demand for the

logbooks came only after Sharon Gasho placed the plastic

bag containing the logbooks in Vining’s car. As Agent Ball

testified in his deposition, the agents did not demand the

logbooks when they knew she was carrying them out of the

aircraft. Only later, after the Gashos and the Customs

agents entered the aviation center to photocopy the FAA

documents, did Ball and the other agents finally tell the

Gashos that the seizure of the aircraft included the log-

books and demand their return. The Gashos and Vining

then refused to turn over the logbooks, believing the agents

were required to obtain a warrant. Their refusal was pas-

sive, they did not attempt to drive Vining’s vehicle away

l6a

from the airport or otherwise physically interfere with the

government's search or seizure. The Gashos only refused to

consent to the warrantless seizure.

[7] Although the refusal to turn over the logbooks

clearly is not an act that falls within the prohibitions of

either § 2233 or § 2232,'' the government nevertheless

argues that the Gashos’ refusal provided probable cause for

arrest under § 2232. The point of the government’s argu-

ment is that the Gashos’ refusal to hand over the logbooks

gave rise to a reasonable inference that they had the specific

intent to prevent seizure at the time Sharon Gasho removed

'' The Gashos’ refusal later to hand over the logbooks is not

“forcible rescue” under § 2233, as the logbooks were not in the

government's possession during the refusal. See Sanders, 862 F.2d

at 83 (rescue is forcible when the rescue disrupts the govern-

ment's possession). Absent some physical act of force, the mere

refusal to cooperate is not “‘forcible.’’ See United States v. Cunning-

ham, 509 F.2d 961, 963 (D.C. Cir. 1975) (per curiam) (to be

forcible, an act must be accompanied by “some measure of

presently applied force’) (interpreting 18 U.S.C. § 111, which

prohibits forcible interference with federal officers).

Nor 1s the mere refusal to turn over the logbooks a prohibited

act under § 2232. The statute mentions only acts which destroy or

remove property. Thus, a person is liable only if he destrovs or

removes property. Our construction of the statute is consistent

with the cardinal rule that penal statutes must be strictly con-

strued. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95

(1820). Under our construction, the Gashos’ passive refusal is not

a prohibited act, as it did not physically interfere with the seizure

by destroying or removing the property. If the agents believed

that they had probable cause to seize the logbooks as an appurte-

nance to the aircraft and that exigent circumstances excused the

lack of a warrant, they simply could have seized the logbooks from

Vining's automobile. The Gashos’ passive resistance to the search

and seizure posed no physical interference to the agents’ law

enforcement objectives. If the seizure was justified, the Gashos’

consent to effect the seizure was hardly required.

17a

the logbooks from the aircraft. We disagree. A passive

refusal to hand over property cannot be grounds for infer-

ring criminal intent. The Fourth Amendment gives citizens

the right to refuse to consent to warrantless searches and

seizures. United States v. Prescott, 581 F.2d 1343, 1351 (9th

Cir. 1978). Consequently, the ‘‘passive refusal to consent to

a warrantless search is privileged conduct which cannot be

considered as evidence of criminal wrongdoing.”’ Jd. If a

passive refusal to hand over property can give rise to an

inference of specific intent under § 2232, the right of citi-

zens to withhold consent to warrantless searches or seizures

would be threatened. An officer could use the threat of

arrest as coercion to obtain consent to a warrantless search

or seizure. ‘‘{A]n unfair and impermissible burden would

be placed upon the assertion of a constitutional right and

future consents would not be ‘freely and _ voluntarily

given.’"’ Id. (quoting Bumper v. North Carolina, 391 U.S.

543, 548 (1968) ).'? While we recognize that citizens have a

lower expectation of privacy when searches involve plastic

bags in automobiles rather than houses, see United States v.

Mackey, 626 F.2d 684, 686-87 (9th Cir. 1980), the citizen

nevertheless retains the right to refuse consent to a warrant-

less search of the bag containing his personal effects, even if

'? We recognize that a citizen has no right to resist a search or

seizure pursuant to a warrant. Bumper, 391 U.S. at 550. Warrant-

less searches are another matter. In warrantless searches, there is

a presumption the officer has no right to enter and search the

property, though the lack of a warrant later may be excused

under one of various exceptions if the officer has probable cause.

See Camara v. Municipal Court, 387 U.S. 523, 528-29 (1967). The

passive refusal to cooperate in such searches is not criminal, as

ciuzens cannot fairly be expected to surrender their rights simply

on the word of officers, nor can they fairly be expected to

ascertain on their own whether the absence of a warrant is

excused. Prescott, 581 F.2d at 1350-51. This right is limited to

passive refusals to consent or cooperate. We are not confronted

with the situation where a citizen resorts to physical resistance

that interferes with a search or seizure. See United States v. Flores,

887 F.2d 543, 545 (5th Cir. 1989).

18a

consent is given to search the vehicle. Cf. Florida v. Jimeno,

500 U.S. 248, 252 (1991) (“A suspect may of course

delimit as he chooses the scope of the search to which he

consents.’’).

Even if we were to permit officers to infer specific intent

from a person’s refusal to consent to a search, such an

inference would be unreasonable in this case, under the

totality of the circumstances: Customs agents provided no

notice that the logbooks were seized, they allowed Sharon

Gasho to board the aircraft for the specific purpose of

removing items, she made no attempt to conceal her re-

moval of the logbooks, and the agents knew she removed

the books but did not immediately object. Indeed, some

time passed before the agents asked for the logbooks. The

passage of time between the removal of the logbooks and

the Gashos’ refusal to turn them over attenuates any infer-

ence of specific intent. Under these facts, Sharon Gasho's

act of removing the logbooks from the aircraft does not

necessarily evince any criminal purpose. She simply could

have been removing her personal property, which Customs

gave her permission to do. *‘Probable cause is lacking if the

circumstances relied on are ‘susceptible to a variety of

credible interpretations not necessarily compatible with ne-

farious activities.’’’ United States v. Moore, 483 F.2d 1361,

1363 (9th Cir. 1973) (quoting United States v. Selby, 407

F.2d 241, 243 (9th Cir. 1969) ).

[8] In summary, the Customs agents had no probable

cause under either § 2233 or § 2232 to arrest the Gashos,

because the agents had no reasonable basis to believe that

Sharon Gasho knew that removal of the logbooks was

forbidden or that she intended to frustrate or prevent their

seizure when she carried them from the aircraft. The

passive refusal to hand over property pursuant to a warrant-

less search or seizure is privileged conduct which cannot be

the basis for inferring criminal intent. We reverse summary

judgment on the FTCA claims of false arrest and

imprisonment.

19a

Ill

The appellants contend that the district court erred when

it granted summary judgment to the government on their

claim of intentional infliction of emotional distress. We

review summary judgment de novo. Jones, 968 F.2d at 940.

Under Arizona law, a plaintiff alleging the intentional

infliction of emotional distress must plead and prove that:

(1) the defendant's actions were extreme and outrageous,

(2) the defendants either intended to cause emotional

distress or acted in reckless disregard of that result, and

(3) severe emotional distress in fact occurred. Ford uv.

Revlon, Inc., 734 P.2d 580 (Ariz. 1987) (en banc).

The Gashos based their emotional distress claim on three

acts by the United States: the seizure of the aircraft, the

arrests, and the threat of continuing prosecution. Each act

must be discussed separately, as the FTCA exempts certain

government activities from the FTCA’s waiver of sovereign

immunity.

[9] We first address whether the seizure of the aircraft is

conduct exempt from FTCA liability. The Gashos claim

that the Customs agents seized the aircraft with either the

intent to inflict severe emotional distress, or with the care-

less disregard for that result. The United States contends

that the emotional! distress claim based on the seizure is

barred by the “plain terms’ of the Customs detention

exception in 28 U.S.C. § 2680(c). A jurisdictional bar,

§ 2680(c) exempts the United States from liability for ‘‘any

claim arising in respect of ... the detention of any goods or

merchandise by any officer of customs.” 28 U.S.C.

§ 2680(c).

[10] The Gashos assert that § 2680(c) does not pre-

clude them from relying on the seizure as a basis for their

emotional distress tort claim. After § 2680(c) was enacted,

Congress added an amendment to § 2680(h), permitting

20a

recovery for various intentional torts when committed by

an ‘‘investigative or law enforcement officer,” including the

intentional infliction of emotional distress. 28 U.S.C.

§ 2680(h); Sheehan v. United States, 896 F.2d 1168, 1169,

amended on other grounds, 917 F.2d 424 (9th Cir. 1990).

The Gashos contend that the intentional torts remedy in

§ 2680(h) amended the Customs exception in § 2680(c),

exempting only negligent torts by Customs officials.

We addressed a similar question in Wright v. United States,

719 F.2d 1032, 1035-36 (9th Cir. 1983). Wright involved an

alleged intentional tort by an Internal Revenue Service

agent arising out of his testimony before a grand jury.

Besides exempting claims that arise with respect to Customs

seizures, § 2680(c) also exempts claims that arise with

respect to ‘‘the assessment or collection of any tax”’ by IRS

agents. We stated that §§ 2680(c) and 2680(h) must be

interpreted in a manner that reconciles them, without doing

violence to either. Jd. at 1036. Under the facts in Wright, we

held that the IRS agent was not immune from liability,

insofar as his alleged tortious conduct did not constitute an

“assessment” or “‘collection” of a tax, within the strict

meaning of those words. See id. at 1035-36.

We read Wright as requiring the United States to first

demonstrate that the Customs or IRS agent's tortious con-

duct falls within the scope of activities exempted in

§ 2680(c). If such a showing is made, the claim is barred. If

the government fails to show that the tortious conduct is

exempt, the plaintiffs claim is not barred, assuming the

plainuff demonstrates that an “investigative or law enforce-

ment officer’’ committed the intentional tort.

{11] In the Gashos’ case, the government clearly met its

burden. The actions of the Customs agents, the seizure and

detention of the aircraft, are precisely the kinds of acts that

Congress exempted from liability in § 2680(c). The Gashos

cannot base their emotional distress claim on the seizure,

even if it was without probable cause.

2la

Other courts interpreting the interplay of § 2680(h) and

the FTCA exceptions have applied a similar analysis. In

Gray v. Bell, 712 F.2d 490, 507-08 (D.C. Cir 1983), cert.

denied, 465 U.S. 1100 (1984) the court addressed whether a

plaintiff could pursue an intentional tort claim against a law

enforcement officer, pursuant to § 2680(h), when the tor-

tious conduct fell within the ‘discretionary function”’ ex-

emption of § 2680(a). The court held that to maintain an

FTCA claim for an intentional tort under § 2680(h), a

plaintiff must first clear the “discretionary function”’ hur-

die. Id.; see also Pooler v. United States, 787 F.2d 868, 872-73

(3d Cir.), cert. dented, 479 U.S. 849 (1986). Contra Sutton v.

United States, 819 F.2d 1289, 1297 (5th Cir. 1987).

[12] We recognize that our holding effectively bars any

remedy for intentional torts with respect to seizures by

Customs. But statutes waiving the sovereign immunity of

the United States must be “construed strictly in favor of the

sovereign.’ McMahon v. United States, 342 U.S. 25, 27

(1951). When strictly construed in light of § 2680(c), the

waiver of immunity in § 2680(h) applies only to tortious

conduct not involving the seizure and detention of goods by

Customs. Our holding furthers Congress’ intent in creating

the Customs exemption: ensuring that Customs activities, as

a Class, should not be disrupted by threat of suit. See Kosak v.

United States, 465 U.S. 848, 858 (1984). Thus, the Gashos’

emotional distress claim is barred, insofar as it relies on

injuries stemming from Customs’ seizure of the aircraft.

We next address whether the arrests of the Gashos can

form the basis for an emotional distress claim under the

FICA.

[13] As the government concedes, the Customs excep-

tion in § 2680(c) does not bar an intentional tort claim

arising out of arrests by Customs agents, as the exception

applies only to the detention of goods and merchandise, not

persons. The district court granted summary judgment to

22a

the government on the ground that an emotional distress

claim must fail when the mental anguish arises entirely from

another tort —in this case, false arrest. See Restatement

(Second) of Torts, § 47, cmt. a.

[14] The district court’s holding was in error. The Re-

statement only says that consequential mental anguish from a

separate tort does not establish a claim for intentional

infliction of emotional distress. If the Gashos can prove that

the arresting officers arrested them with the intent of in-

flicting emotional distress, the Gashos may assert both false

arrest and emotional distress claims. See id. at § 46; Garus v.

Rose Acre Farms, Inc., 839 F.Supp. 563, 569 (N.D.Ind. 1933)

(finding that the Restatement rejected old rule that mental

anguish was merely “‘parasitic’’ to the host cause of action

and not a separate tort). In short, if the arrests were

motivated by malice, the Gashos are entitled to assert a

separate tort claim based on the emotional distress resulting

from the arrests.

[15] To prove malicious intent, the Gashos relied on

testimony from a Customs pilot, David Kunz. According to

Kunz, John Howe, the Customs supervisor, admitted that he

arrested the Gashos because they ‘‘made us mad."’ The

Gashos also introduced deposition testimony from a Cus-

toms agent who testified that he deliberately avoided partic-

ipating in the arrest because he had a “‘bad feeling about the

situation” and did not want to be involved. The Gashos also

allege that they were “paraded” through the airport lobby

in handcuffs. These facts and circumstances, combined with

the lack of probable cause for the arrest, are sufficient to

create a genuine issue of material fact on the issue of malice.

We next consider whether the pursuit of criminal pro-

ceedings may support an emotional distress claim under the

FTCA.

{16} The Gashos contend that the Customs agents inten-

uonally inflicted emotional distress by telling them that

23a

charges would be pursued against them.'* The Gashos

contend they “‘lived with the fear of a criminal prosecution

for a full 16 months when Customs knew that the Govern-

ment never intended to pursue the matter.”’ Only later,

after the civil suit was filed, did the Gashos learn that an

Assistant United States Attorney had declined to prosecute

them on the day they were arrested. To prove malicious

intent, the Gashos produced a deposition from Kunz, the

Customs pilot. Kunz testified that John Howe, the Customs

supervisor, had told him that Customs was pursuing prose-

cution against the Gashos in order to “‘protect ourselves in

case of a lawsuit later.”’

[17] The government argues that the agents’ conduct in

preparing the case for prosecution is immune from liability

under § 2680(a), the ‘discretionary function’ exception.

The exception exempts the United States from liability

under the FTCA for any claim

based upon the exercise or performance or the fail-

ure to exercise or perform a discretionary function

or duty on the part of a federal agency or an em-

ployee of the Government, whether or not the discre-

tion involved be abused.

28 U.S.C. § 2680(a). If a defendant can show that the

tortious conduct involves a ‘‘discretionary function,” a

plaintiff cannot maintain an FTCA claim, even if the discre-

tionary act constitutes an intentional tort under § 2680(h).

See Wright, 719 F.2d at 1035; Gray, 712 F.2d at 507-08.

To determine whether a defendant's conduct is of a

discretionary nature, we must look to the nature of the

alleged wrongful conduct. Werssich v. United States, 4 F.3d

810, 812 (9th Cir. 1993), cert. denied, 114 S.Ct. 2705

'S The Gashos cannot pursue a claim for malicious prosecution

because an essential element is the actual commencement of a

criminal prosecution, which did not occur in this case. See Slade v.

City of Phoenix, 541 P.2d 550, 552 (Ariz. 1975). Instead, the

Gashos allege intentional infliction of emotional distress.

24a

(1994). Even if the conduct is discretionary, the conduct is

protected by § 2680(a) only if it implements social, eco-

nomic or political policy. Jd. If the agents had ‘‘room ... to

make independent policy judgments,” the ‘‘discretionary

function” exception protects them from liability. Jd. at 814.

The Gashos contend that once the Assistant United

States Attorney informed Customs that his office would not

prosecute the Gashos, the agents were foreclosed from

pursuing prosecution further. Essentially, their argument is

that Customs no longer had ‘“‘room’’ to decide whether to

prosecute, because the Assistant United States Attorney

had already exercised a policy judgment. Our opinion in

Wright appears to support this view. We stated that an

agent's conduct in implementing the decision to prosecute

is not immune as a discretionary function. “Unlike the

decision to prosecute, an agent’s conduct, both before and

after that decision is made, is susceptible to judicial evalua-

tion.” Wright, 719 F.2d at 1035.

Our holding in Wright relied on a distinction between the

“planning level’’ and the ‘“‘operational level’’ of decision-

making. This dichotomy assumed that decisions made by

actors at the “operational level’’ were not immune from

liability. See Driscoll v. United States, 525 F.2d 136, 138 (9th

Cir. 1975). The Supreme Court and this court subsequently

rejected this dichotomy as ‘“‘specious.”’ Begay v. United States,

768 F.2d 1059, 1062 n.2 (9th Cir. 1985) (citing United

States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig

Airlines), 467 U.S. 797 (1984) ). Rather, an act is shielded

from liability if judicial second-guessing would interfere

with the federal employee's exercise of independent policy

judgments. Mitchell v. United States, 787 F.2d 466, 468 (9th

Cir. 1986), cert. denied, 484 U.S. 856 (1987).

[18] In this case, the alleged tortious conduct involved

the continued investigation and pursuit of criminal charges

after an Assistant United States Attorney had indicated that

charges would not be filed. We need not decide whether

investigations after a final decision are immune from FTCA

liability, as the government's evidence in this case estab-

25a

lishes as a matter of law that the Assistant United States

Attorney’s decision not to prosecute was not final. Nearly a

year after the arrests, the United States Attorney advised

the Gashos’ attorney that ‘‘[w]e have neither made a deci-

sion to prosecute nor to decline prosecution ... /t]he deci-

sion ts still being reviewed.’’ (emphasis added). There is no

genuine issue of fact, because the statement by the Assistant

United States Attorney does not contradict the United

States Attorney’s letter. The statement, issued on the day of

the arrests without the benefit of any investigative file,

manifestly was a preliminary judgment.'* Because the evi-

dence establishes as a matter of law that the decision to

prosecute was not final, the conduct of the agents in pursu-

ing prosecution is immune. That the conduct of the agents

may be tortious or motivated by something other than law

enforcement is beside the point, as governmental immunity

is preserved ‘‘whether or not the discretion involved be

abused.”’ 28 U.S.C. § 2680(a); Johnson v. United States, 949

F.2d 332, 340 (10th Cir. 1991).

In summary, the dismissal of the intentional infliction of

emotional distress claim is justified to the extent the claim

rests solely on circumstances involving seizure of the air-

craft and. prosecutorial decisions, conduct which falls

squarely under FTCA exceptions. However, the Gashos

have introduced evidence establishing a genuine issue

whether the arrests were motivated by malice. The agents’

conduct during the arrest is not entitled to FTCA immu-

nity. We reverse summary judgment on the Gashos’ emo-

tional distress claim to the extent it is based on the arrests.

'*The government argues that “an Assistant United States

Attorney seldom has the final say as to whether such prosecutions

will be accepted.”’ That may or may not be true, depending on

how much the authority the United States Attorney has delegated

to his assistants. We choose not to make any such generalized

assumption.

26a

The appellants raised an abuse of process claim based on

the seizure of the aircraft and the subsequent forfeiture

process. The district court dismissed the claim for failure to

state a claim upon which relief could be granted.

Fed.R.Civ.P. 12(b)(6). The court explained that such a

tort under Arizona law must be predicated on misuse of a

court's powers, and no judicial process was instituted in this

case. A Rule 12(b)(6) dismissal presents a question of law,

which we review de novo. Oscar v. University Students Co-

operative Ass'n, 965 F.2d 783, 785 (9th Cir.) (en banc), cert.

denied, 113 S.Ct. 655 (1992).

The Gashos contend that the district court misconstrued

Arizona law. They also assert that the word “‘process”’ is not

restricted to the narrow sense of that term. They contend

that a claim for abuse of process may lie when the process is

administrative. See, eg., Clipper Express v. Rocky Mountain

Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982)

(there is ‘‘no reason” to distinguish administrative process

from judicial process), cert. denied, 459 U.S. 1227 (1983).

[19] We need not decide whether, under Arizona law, an

abuse of process claim may be based on an administrative

abuse. The tortious acts alleged by the Gashos involved

detention of goods and merchandise by Customs and, there-

fore, the claim is barred under the FTCA’s exemption for

Customs detentions contained in 28 U.S.C. § 2680(c). See

Wright, 719 F.2d at 1035-36. We affirm the district court's

dismissal of the abuse of process claim.

We now address the Bivens action alleging that Agents

Ball, Mannhalter and Howe violated the Gashos’ constitu-

tional rights when they seized the aircraft and arrested the

Gashos.'? We resolve two questions: whether the Bivens

'° See Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). Under Bivens, as interpreted in

[cont'd ]

27a

claims are barred by 28 U.S.C. § 2676, and whether the

agents are entitled to qualified immunity from liability.

The Gashos argue that the district court erred when it

dismissed the Bivens claims pursuant to 28 U.S.C. § 2676.

The district court held that under § 2676, the existence of

the prior judgment in the FTCA action barred the Bivens

claim. Because this issue requires statutory interpretation,

we review the district court’s decision de novo. Kreines v.

United States, 959 F.2d 834, 836 (9th Cir. 1992).

Section 2676 states that

[t]he judgment in an [FTCA] action ... shall

constitute a complete bar to any action by the

claimant, by reason or the same subject matter,

against the employee of the government whose act

Or Omission gave rise to the claim.

28 U.S.C. § 2676. The district court read the word “‘judg-

ment” in § 2676 as broadly applying to all judgments, both

against and in favor of the government. Because a judgment

in favor of the government earlier was granted in the

Gashos’ FTCA action,’® the district court dismissed the

Gashos’ Bivens action.

[20] The Gashos argue that the word “judgment” in

section 2676 is ‘ambiguous’ and ‘“‘vague’’ about whether

the proviso applies to all judgments regardless of outcome

or whether it applies only to judgments against the United

States. The Gashos urge us to rely on legislative history as a

Carlson v. Green, 446 U.S. 14 (1980) and Davis v. Passman, 442

U.S. 228, 245-48 (1979), a victim of a constitutional violation by a

federal agent is entitled to recover money damages from the

agent when there is neither a special factor counseling hesitation

nor an equally effective alternative remedy.

'© The district court granted summary judgment on the Gashos’

FTCA claims alleging false arrest and emotional! distress, and

dismissed their abuse of process claim for failure to state a claim.

28a

means of interpreting Congress’ intent. They contend Con-

gress intended only to prevent more than one satisfaction of

a claim. See Hearings Before the House Committee on the Judici-

ary on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess. 90

(1942). They argue that section 2676 does not bar a

plaintiff from filing another action when the prior action

was adjudged in favor of the United States. In essence, the

Gashos argue that the quality of an FTCA judgment must

determine whether or not a subsequent Bivens claim on the

same conduct is barred.

Neither this circuit nor any other circuit has squarely

decided this specific question. The Gashos contend that our

opinion in Kreines v. United States, 959 F.2d 834, 838

(9th Cir. 1992) settles the issue. In Kreines, we stated: ‘“The

statutory bar [in section 2676] was conceived by Congress

primarily to prevent dual recoveries arising from additional,

subsequent litigation.” Jd. (emphasis added). Kreines’ broad

language arguably supports the Gashos’ contention that an

action is barred only when the plaintiff has recovered in the

judgment. However, the holding in Kreines was narrowly

confined to its facts. In that case, the plaintiff had filed an

FTCA claim and a Bivens claim in the same action. Judgment

was entered first in the Bivens claim, and the judgment in

the FTCA claim followed a few months later. Kreines viewed

the claims as ‘“‘contemporaneous’ and therefore held that it

was “‘free, in this narrow context, to consider the possibility

that the quality of the FTCA judgment may have a bearing

on its effect on contemporaneous judgments."’ (emphasis

added). Relying on legislative history, Kreines concluded

that the bar to any later “action” was to prevent ‘‘dual

recoveries’ in separate litigation. Jd. The court therefore

held that an FTCA judgment in favor of the government

did not bar the Bivens claim when the judgments are ‘‘con-

temporaneous” and part of the same action. Jd. In the

Gashos’ case, the Bivens claims were in an action entirely

apart from the action containing the FTCA claims. Limited

by its facts, Kreimes is not controlling.

)

29a

[21] We are not persuaded that Congress intended to

permit a claimant to have a second chance after losing his

FTCA action. The first and best guide on Congress’ intent

is the plain language of the statute. United States v. American

Trucking Associations, 310 U.S. 534, 543 (1940). The statute

speaks of ‘‘judgment” and suggests no distinction between

judgments favorable and judgments unfavorable to the

government. The language is not “‘ambiguous’”’ or “vague.”

See Leaman v. Ohio Dept. of Mental Retardation, 825 F.2d 946

(6th Cir. 1987) (interpreting Ohio Court of Claims Act

and stating in dictum that similar provision in section 2676

provides that ‘even adverse judgments” in favor of the

government bar subsequent recovery against employees),

cert. denied, 487 U.S. 1204 (1988).

[22] The legislative history does not contradict our in-

terpretation of the statute. Kreines’ analysis of legislative

history unearthed two concerns by Congress: the preven-

tion of dual recoveries and the prevention of multiple

lawsuits. Jd.; see Hearings on H.R. 5373 and H.R. 6463, supra,

at 9 (“If the government has satisfied a claim which is made

on account of a collision between a truck carrying mail and

a private car, that should, in our judgment, be the end of

it.) (statement of Francis Shea, Assistant Attorney Gen-

eral). The risk of dual recovery is absent here because the

Gashos did not prevail on their FTCA claim. The preven-

tion of dual recovery, however, is not the only purpose of

the statute. Congress also was concerned about the govern-

ment’s ability to marshal the manpower and finances to

defend subsequent suits against its employees. One witness

testified that multiple suits imposed a “very substantial

burden” on the government. /d. This suggests that Con-

gress never intended to draw a distinction based on whether

the government prevailed or not. We therefore hold that

any FTCA judgment, regardless of its outcome, bars a

subsequent Bivens action on the same conduct that was at

issue in the prior judgment.

Our interpretation of § 2676 serves the interests of judi-

cial economy. Plainuffs contemplating both a Bivens claim

and an FTCA claim will be encouraged to pursue their

30a

claims concurrently in the same action, instead of in sepa-

rate actions. This will foster more efficient settlement of

claims, since the evidence and proof in FTCA and Bivens

claims often overlap.

[23] The Bivens claims based on the seizure of the air-

craft are barred. Because we have affirmed the district

court’s judgment in favor of the United States in the FTCA

claims involving the seizure of the aircraft, that prior judg-

ment precludes any subsequent Bivens claim based on the

seizure.’ See 28 U.S.C. § 2676 (prior judgments bar subse-

quent claims “by reason of the same subject matter’’).

Because we have reversed the district court’s summary

judgment on the FTCA claim involving the arrests, a prior

“judgment” no longer bars the subsequent Bivens claim

based on the arrests. The Gashos thus are permitted to

pursue either the Bivens claim or FTCA claim, or both

claims. If they pursue both remedies in separate actions,

they may secure judgments on both claims only if the Bivens

judgment is entered first. See Ting v. United States, 927 F.2d

1504, 1513 n.10 (9th Cir. 1991).

The defendants argue that they are entitled to qualified

immunity from damages caused by the arrests. We review

qualified immunity de novo. Baker v. Racansky, 887 F.2d 183,

185 (9th Cir. 1989).

The doctrine of qualified immunity assumes that police

officers do not knowingly violate the law. An officer thus is

presumed to be immune from any damages caused by his

'" We reject the appellants’ argument that the dismissal of the

abuse of process claim for failure to state a claim is not a

‘“yudgment” on the merits under 28 U.S.C. § 2676. Cf. Federated

Dep't Stores, Inc. v. Mout, 452 U.S. 394, 399 n.3 (1981) (Rule

12(b)(6) dismissal is final for purposes of res judicata). In any

case, the claim is barred by the Customs exception of 28 U.S.C.

§ 2680(c).

3la

constitutional violation. Elder v. Holloway, 975 F.2d 1388,

1392 (9th Cir. 1991), rev'd on other grounds, 114 S.Ct. 1019

(1994). To overcome this presumption, a plaintiff must

show that the officer’s conduct was “so egregious that any

reasonable person would have recognized a constitutional

violation.” Id. at 1394 (quoting Backlund v. Barnhart, 778

F.2d 1386, 1389 (9th Cir. 1985) ).

We employ a two-step inquiry to determine whether a

reasonable person would have recognized that a constitu-

tional right was being violated. Act Up!/Portland v. Bagley,

988 F.2d 868, 871 (9th Cir. 1993). The plaintiff first must

show that the constitutional right is clearly established.

Elder, 975 F.2d at 1392. If the plaintiff makes that showing,

the burden shifts to the defendant to show that a reasonable

police officer could have believed, in light of the settled law,

that he was not violating a constitutional or statutory right.

Morgan v. Woessner, 997 F.2d 1244, 1260 (9th Cir. 1993),

cert. dismissed, 114 S.Ct. 671 (1994).

The Gashos contend that the Customs agents arrested

them in retaliation for refusing to turn over the logbooks.

The Gashos produced evidence that Agent John Howe, who

ordered the arrests, later told another Customs official that

the Gashos were arrested because the Gashos’ refusal to

turn over the logbooks ‘“‘made us mad.”’ The Gashos argue

that an arrest for their refusal to turn over the logbooks

violated their Fourth Amendment rights.

The Fourth Amendment right to be free from arrests

without probable cause is clearly established. Kennedy v. Los

Angeles Police Dept., 901 F.2d 702, 706 (9th Cir. 1989).

Probable cause is obviously lacking when the arrest is moti-

vated purely by a desire to retaliate against a person who

verbally challenges the authority to effect a seizure or

arrest. See Houston v. Hill, 482 U.S. 451, 462-63 (1987)

(‘The freedom of individuals verbally to oppose or chal-

lenge police action without thereby risking arrest is one of

the principal characteristics by which we distinguish a free

nation from a police state."’); Duran v. City of Douglas, 904

F.2d 1372, 1378 (9th Cir. 1990). Similarly, probable cause

32a

is lacking when an officer arrests a person for refusing to

consent to a warrantless search or seizure. See United States v.

Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978) (The “passive

refusal to consent to a warrantless search is privileged

conduct which cannot be considered as evidence of criminal

wrongdoing.”’). It is clearly established that a person’s

Fourth Amendment rights are violated if the sole basis for

his arrest is his challenge to the officer’s authority absent a

warrant.

Our inquiry now turns to whether a reasonable officer

could have believed that the arrest of the Gashos was lawful,

in light of the clearly established law and the information

the arresting officers possessed. See Anderson v. Creighton,

483 U.S. 635, 641 (1987). Our prior determination that the

arrests lacked probable cause is not necessarily determina-

tive. The agents may still be entitled to immunity even if

they mistakenly believed there was probable cause to arrest

the Gashos, if they could have reasonably believed that their

actions were lawful. See id.

[24] The defendants have failed to demonstrate that a

reasonable officer could have believed, as a matter of law,

that the Gasho’s arrests were lawful. Our conclusion rests

on the issue of specific intent. The agents argued that they

had probable cause to believe that the Gashos intended tc

frustrate or prevent seizure because: (1) the Gashos were

“indisputably and continually aware” that the logbooks

were an appurtenance to the aircraft, and (2) the Gashos

refused to turn over the logbooks in response to the agents’

demands for them. As to the first ground, the agents had no

facts to support their belief that the Gashos knew that the

logbooks are an appurtenance to the aircraft. Their belief

was based on mere supposition. In light of the paucity of

facts allowing an inference of specific intent, a reasonable

officer would have known that the arrests were without

probable cause. As to the second ground, a reasonable

officer, in light of the clearly established law, would have

known that the Gashos’ passive refusal to turn over the

logbooks was privileged conduct which could not serve as a

33a

basis for finding criminal intent. The agents are not entitled

to qualified immunity. Cf. Duran, 904 F.2d at 1377 (officer

not immune because criticism of police is not a crime,

absent evidence of disorderly conduct).

The judgment of the district court is affirmed in part and

reversed in part. We affirm summary judgment on the

FTCA and Bivens claims based on the seizure of the aircraft.

We reverse the dismissal of the FTCA claim based on the

intentional infliction of emotional distress. We reserve sum-

mary judgment on the FTCA and Bivens claims based on

the arrests. The case is remanded for further proceedings

consistent with this opinion.

REVERSED in part, AFFIRMED in part and

REMANDED.

34a

APPENDIX “B”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

JOHN R. GASHO, SR., et al.,

Plaintiffs,

CIV-92-1211 PHX RCB

JUDGMENT

VS.

WILLIAM BALL, et al.,

Defendants.

See ee ee ee ee ee”

(Filed March 5, 1993)

This action came on for consideration before the Court,

the Honorable Robert C. Broomfield, United States District

Judge, presiding, and the issues having been duly consid-

ered and a decision having been duly rendered,

IT IS ORDERED AND ADJUDGED that the complaint

and action are dismissed and that plaintiffs take nothing by

their complaint. This judgment is in accordance with this

Court's order dated March 5, 1993, which grants defend-

ants’ motion to dismiss pursuant to 28 U.S.C. 2676.

Dated at Phoenix, Arizona, this 5th day of March, 1993.

RICHARD H. WEARE, Clerk

By: /s/_ A.P. JUAREZ

A.P. Juarez, Deputy Clerk

cc: all counsel

CIV-21 (6/5/85)

35a

APPENDIX “C”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

JOHN R. GASHO, SR. and

SHARON L. GASHO,

husband and wife,

MILLARDAIR, LTD.,

a Canadian Corporation,

Plaintiffs, No. CIV 92-1211 PHX RCB

ORDER

US.

WILLIAM BALL, ROGER

MANNHALTER, and

JOHN J. Howe, Jr.,

Defendants.

Ne mee ee ee ee ee ee ee ee ee ee ee”

(Filed March 5, 1993)

This is the second case brought by these plaintiffs arising

out of their arrest at the Scottsdale Municipal Airpark in

1988. In the previous case, CIV 89-2077 PHX RCB, plain-

tiffs brought claims against the United States, and the court

granted summary judgment in favor of the government.

Plaintiffs now assert very similar claims against the individ-

ual Customs Service Agents who allegedly falsely arrested

the plaintiffs and seized the aircraft in plaintiffs’ possession.

Defendants have moved to dismiss plaintiffs’ claims or, in

the alternative, for summary judgment. The court heard

oral argument on the motion on February 23, 1993, and

now rules.

BACKGROUND

The facts that give rise to this action are set forth fully in

the court's order of July 24, 1991, which granted summary

judgment to the United States on most of plaintiffs’ claims.

A brief summary of the facts is as follows.

36a

The defendant government agents in this case seized a

DC-3 airplane in Scottsdale, Arizona on June 24, 1988,

allegedly for displaying false registration markings. The

agents also arrested the Gashos, who were in possession of

the airplane, after the Gashos refused to turn over the

airplane's logbooks. At the time of the seizure of the plane

and the arrest of the Gashos, the Gashos were en route to

Canada to deliver the airplane to Millardair, a corporation

that had purchased the plane from the Gashos’ restoration

company in Tucson. Plaintiffs never were prosecuted for

any wrongdoing.

In December of 1989, plaintiffs brought suit against the

United States, Ball, Mannhalter, and Northrop Worldwide

Aircraft Services, Inc., alleging false imprisonment, false

arrest, intentional infliction of emotional distress, breach of

contract, and claims under the Fourth Amendment. Plain-

tiffs later added a claim for abuse of process. Plaintiffs

complained that they wrongfully had been arrested without

probable cause and that the Customs Service had refused to

return the aircraft solely to coerce the plaintiffs into enter-

ing into a hold harmless agreement with the Customs

Service.

The claims against defendants Ball and Mannhalter were

dismissed on August 15, 1990 pursuant to Rule 4(j), Fed-

eral Rules of Civil Procedure, because plaintiffs had failed

to accomplish service within 120 days. The claims asserted

against the other parties all were dismissed in a series of

orders by the court. Plaintiffs have appealed the judgments

dismissing their claims to the Ninth Circuit.

On June 24, 1992, plaintiffs filed their complaint in this

case against Ball, Mannhalter, and John Howe, Jr. By the

time plaintiffs filed their complaint, all of plaintiffs’ claims in

the previous case had been dismissed except for plaintiff

Millardair’s abuse of process claim against the government.’

] : . .

Pursuant to the government's motion, the court dismissed

Millardair’s abuse of process claim on August 26, 1992.

37a

The defendants have moved to dismiss or, in the alterna-

tive, for summary judgment on plaintiffs’ entire complaint.

The primary basis for defendants’ motion is that 28 U.S.C.

§ 2676 bars this action. Section 2676 states:

The judgment in an action under section 1346(b)

[the FTCA] shall constitute a complete bar to an

action by the claimant, by reason of the same subject

matter, against the employee of the government whose

act or omission gave rise to the claim.

Based on this provision, defendants argue that the court's

judgment in plaintiffs’ previous FTCA action against the

government precludes this action. Plaintiffs do not dispute

defendants assertion that this case involves the same subject

matter as the prior FTCA action against the government.

Defendants also argue at length that this action should be

dismissed under the doctrine of qualified immunity. Pursu-

ant to the qualified immunity doctrine, defendants contend

that they are immune from suit to the extent they reasona-

bly could have believed that probable cause existed to arrest

the Gashos and seize the airplane. Defendants assert that

the qualified immunity issue is effectively predetermined

given this court’s holding in the prior case that probable

cause in fact existed to arrest the plaintiffs. In addition,

defendants maintain that the doctrine of collateral estoppel

prevents plaintiffs from rearguing the issue of probable

cause in this case.

Plaintiffs contend that section 2676 does not bar this

action because the government won the prior FTCA suit.

According to plaintiffs, the primary purpose underlying

section 2676 is to prevent double recovery by plaintiffs.

Double recovery, plaintiffs note, is not possible when judg-

ment is entered in favor of the government in the initial

suit. Plaintiffs assert that, therefore, section 2676 should be

interpreted consistently with the statute's primary purpose.

With respect to defendants’ assertion of qualified immu-

nity, plaintiffs argue that extension of qualified immunity is

not appropriate because the officers could not reasonably

38a

have believed that Sharon Gasho had the requisite intent to

steal property from the custody of the Customs Service. See

18 U.S.C. § 549.” With respect to defendants’ claim that the

doctrine of collateral estoppel precludes plaintiffs from

contesting that probable cause existed to arrest the Gashos,

plaintiffs assert that preclusicn is not proper because this

court's rulings in the prior case currently are on appeal.

Finally, plaintiffs move pursuant to Rule 56(f) of the

Federal Rules of Civil Procedure for more time to conduct

discovery. Plaintiffs submit that they believe that the de-

fendants were involved in the decision of the Customs

Office to retain custody of the airplane in an attempt to

obtain a hold harmless agreement from the plaintiffs. Plain-

tiffs contend that limited discovery into the defendants’

involvement in withholding the airplane while seeking the

hold harmless agreement should be permitted before the

court rules on defendants’ summary judgment motion.

ANALYSIS

Defendants argue that section 2676 expressly precludes

subsequent actions against government employees which

follow judgments in cases against the United States. Defend-

ants further argue that the statute makes no distinction

between judgments in favor of the United States and judg-

ments against the United States, and that Congress likely

did not make such a distinction because Congress intended

to prevent multiple lawsuits as well as double recoveries.

* The court rejected this argument in its July 24, 1991 order in

the prior FTCA case. The court held that even assuming that

defendants did not have probable cause to arrest plaintiffs pursu-

ant to 18 U.S.C. § 549, the officers did have probable cause to

arrest the plaintiffs for violations of other federal statutes. The

court then held that, to the extent probable cause existed to arrest

the Gashos pursuant to 18 U.S.C. §§ 2232, 2233, defendants’

arrest of plaintiffs was privileged even if the arrest was motivated

in part by anger or by reliance on the wrong federal statute. See

Order of July 24, 1991 at 11-14.

39a

Plaintiffs argue that the dominant purpose underlying

section 2676 is to prevent multiple recovery. Plaintiffs con-

tend that because the multiple recovery concern is not

implicated when judgment is entered in favor of the United

States, plaintiffs claims as asserted in this action should not

be barred.

Case law on the issue before the court is very sparse.

Plaintiffs cite three cases to support their position. The case

most helpful to plaintiffs is Brown v. United States,

CV 83-1566 (D.N.J. June 12, 1987). The court in Brown

held that section 2676 bars actions against a government

employee only if a prior judgment has been obtained

against the government relating to the same subject matter.

This interpretation of section 2676 comports with the inter-

pretation which plaintiffs in this case advance. The Brown

court, however, provided absolutely no legal citation or

reasoning for its conclusion.

The second case relied upon by plaintiffs is the Ninth

Circuit's decision in Kreines v. United States, 959 F.2d 834

(9th Cir. 1992). In Kreines, a plaintiff brought suit contem-

poraneously against federal officers under a Bivens theory

and against the government under the FTCA. A jury found

in favor of the plaintiff on her Bivens claim but the trial

judge later found in favor of the government on plaintiff's

FTCA claim. Jd. at 836. The individual defendants held

liable under the Bivens theory then sought to vacate the

judgment against them based on the court's entry of judg-

ment on the FTCA claim.

On appeal, the Ninth Circuit phrased the question before

the court as ‘‘whether § 2676 applies when the judgment on

the FTCA claim (a) has become final contemporaneously

with the judgment on a Bivens claim . . . and (b) has been

favorable to the government.” /d. at 838. The defendant in

the case relied upon the Ninth Circuit's prior decision in

Arevalo v. Woods, 811 F.2d 487 (9th Cir. 1987), which

barred a contemporaneous Bivens judgment against a fed-

eral employee when the plaintiff prevailed on his FTCA

claim against the government. As plaintiffs note, the Ninth

40a

Circuit in Kreines distinguished Arevalo on the ground that

in Kreines the government had prevailed in the FTCA

action.

The Kreines court justified the distinction it drew between

judgments favorable to the government and judgments

against the government as follows:

[The defendants] also argue that our distinction

between judgments favorable and judgments unfavora-

ble to the government is inconsistent with the plain

language of § 2676, which only speaks in terms of

‘judgments.’ That argument ignores the requirement

that the statute be read as a whole. The statute states

that an FTCA judgment bars an “‘action.”’ The text is

ambiguous on the question of whether an FTCA judg-

ment favorable to the government bars a contempora-

neous Bivens judgment. We are thus free, in this narrow

context, to consider that the possibility that the quality

of the FTCA judgment may have a bearing on its effect

on contemporaneous judgments.

We resolve the ambiguity by reference to the intent

of Congress. The statutory bar was conceived by Con-

gress primarily to prevent dual recoveries arising from

additional, subsequent litigation.

Id. Thus, the holding in Kreines is narrow: the decision

states only that the quality of the FTCA judgment is rele-

vant when judgments are entered contemporaneously on

claims against the government under the FTCA and against

the individual employee. This case, of course, does not

involve contemporaneous judgments, but instead involves

multiple suits or actions. Importantly, the court made clear

that ‘Congress’ primary concern in enacting the bar was to

prevent multiple lawsuits on the same facts."’ Jd. As such,

Kreimes provides relatively little support to plaintiffs in this

case.

The third case relied upon by plaintiffs also does not

provide significant support for their case. In Dagnan uv.

Douger, CV 1-88-452 (E.D. Tenn. July 19, 1989), the plain-

4la

tiff brought suit against the United States, and a federal

district court entered judgment in favor of the government

on the ground that the plaintiff's claim fell within the

intentional tort exception to the FTCA, 28 U.S.C.

§ 2680(h). The plaintiff then brought suit against the indi-

vidual government employee.

The government argued that plaintiff's second suit was

barred under section 2676. The Magistrate Judge dis-

agreed, finding no authority for the proposition that the

dismissal of a case against the government that is not on the

merits is sufficient to preclude a later case against the

individual government employee. The court did not com-

ment, however, as to whether dismissal would have been

appropriate had the prior action against the government

been resolved on its merits.

After reviewing the relevant authorities, the court con-

cludes that dismissal of plaintiffs’ claims is necessary under

section 2676. In reaching this decision, the court has ana-

lyzed the plain language of the statute, the statute’s legisla-

tive history, as well as relevant case law.

The court does not find the language of section 2676 to

be ambiguous. Neither the specific language nor the struc-

ture of section 2676 or the FTCA even hints that the term

“judgment” should be read as meaning “judgment against

the United States.’"’ A judgment presumably means any

judgment. If Congress was concerned only about prevent-

ing double recovery, it very easily could have written the

statute to apply exclusively to situations in which a plaintiff

has obtained a judgment against the government.

Plaintiffs’ position necessarily relies upon Congress’ in-

tent when enacting section 2676. Plaintiffs contend that the

primary purpose of section 2676 is to prevent multiple

recovery and that, therefore, no statutory preclusive effect

should be given to judgments in favor of the government.

Plaintiffs’ position fails to recognize that the real question

before the court is not whether Congress was concerned

with double recovery, but whether Congress also was con-

42a

cerned about multiple suits. If the term judgment means

any judgment, then the statute addresses double recovery

concerns as well as multiple suit concerns. To the extent

that Congress intended the statute to address both these

concerns, plaintiffs claims in this case are barred.

In Kretnes, the Ninth Circuit stated that “‘Congress’ pri-

mary concern in enacting [section 2676] was to prevent

multiple lawsuits on the same facts.”’ Kreines, 959 F.2d at

838. As stated, the statute's terms on their face clearly

evince a concern for preventing multiple suits, particularly

second suits brought against individual government employ-

ees. In short, no incongruity exists between the terms of the

statute and the statute’s primary purpose as expressed by

the Ninth Circuit.®

Furthermore, the decision reached by the court appears

to be in accord with the weight of the admittedly sparse case

law on this subject. See Van Brocklin v. McGinley, CV 82-712

(E.D. Cal. Dec. 19, 1989) (holding that it is irrelevant

whether the government prevailed in the initial action);

Wilkinson v. FBI, CV 80-1048 (C.D. Cal. Oct. 22, 1986)

(same); see also Leaman v. Ohio Dep’t of Mental Retardation,

825 F.2d 946, 955 (6th Cir. 1987) (stating in dicta: ‘‘[ Any-

one} who pursues his statutory remedies against the United

States [under the FTCA] to the point of judgment — even

* Plaintiffs have not relied on the statute's legislative history in

their arguments about how the statute should be interpreted. The

court nevertheless has searched much of the statute's legislative

history and has not found anything to indicate that Congress only

was concerned about double or multiple recovery. The little

legislative history that the court could find on the issue makes

clear that Congress was particularly concerned about the financial

implications of suits against individual government employees.

Through section 2676, Congress apparently sought to reduce the

amount of claims brought against individual employees. See Bills to

Provide for the Adjustment of Certain Tort Clawms Against the United

States: Hearings on H.R. 5373 and H.R. 6463 Before the Committee on

the Judiciary, House of Representatives, 77th Cong., 2d Sess. 9,

26, 27, 59 (1942).

43a

an adverse judgment or a judgment for only a small part of

the amount claimed — bars himself from any recovery

against federal employees.’’). Because plaintiffs do not dis-

pute that this case involves the same subject matter as the

previous action brought by plaintiffs against the govern-

ment that proceeded to judgment, this case must be dis-

missed pursuant to 28 U.S.C. § 2676. Further discovery

would not allow plaintiffs to avoid the statutory bar. ...

IT IS ORDERED granting the defendants’ motion to

dismiss pursuant to 28 U.S.C. § 2676 (Doc. 11).

IT IS FURTHER ORDERED denying plaintiffs’ motion

for additional time to conduct discovery (Doc. 14).

DATED this 3 day of March, 1993.

/s/ ROBERT C. BROOMFIELD

Robert C. Broomfield

United States District Court

Copies to counsel of record

44a

APPENDIX “D”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

JOHN R. GASHO, et ux.,

et al.,

Plaintiffs,

VS.

No. CIV 89-2077 PHX RCB

UNITED STATES OF AMERICA, | AMENDED JUDGMENT

et al.,

Defendants.

Ne mee eee ee ee ee ee”

(Fiied November 2, 1992)

This action came on for consideration before the Court,

the Honorable Robert C. Broomfield, United States District

Court Judge, presiding, and the issues having been duly

considered and a decision having been duly rendered,

IT IS ORDERED AND ADJUDGED that the action and

Complaint are hereby dismissed and that Plaintiffs take

nothing by their Complaint. This Judgment is in accordance

with this Court’s Order dated July 29, 1991, which dis-

missed the Plaintiffs’ claims for false arrest, intentional

infliction of emotional distress, and breach of contract, this

Court’s Order dated March 25, 1992, which dismissed

Plaintiff Gashos’ abuse of process claim and this Court's

Order dated September 1, 1992, which dismissed Plaintiff

Millardair’s claim for abuse of process.

DATED at Phoenix, Arizona, this 27 day of

October, 1992.

By: /s/__ROBERT C. BROOMFIELD

U.S. District Judge

45a

APPENDIX “E”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

JOHN R. GASHO, SR. and

SHARON GASHO, et al.,

Plaintiffs

US.

No. CIV 89-2077 PHX RCB

UNITED STATES OF ORDER

AMERICA, et al.,

Defendants.

See eee eee eee Se”

(Filed March 25, 1992)

By order dated July 24, 1991, the court dismissed all

claims by John and Sharon Gasho against the United States

(‘defendant’) except the claim for abuse of process as-

serted in count three of the second amended complaint.

Defendant now moves for dismissal of plaintiffs’ abuse of

process claim' for failure to state a claim and for lack of

standing. The Gashos have responded to the motion but

defendant did not reply. Neither party requested oral

argument.

As more fully recounted in the court's prior order, this

action arises out of defendant's seizure of a DC-3 airplane in

Scottsdale, Arizona on June 24, 1988 for displaying false

registration markings. The agents also arrested the Gashos

after they removed the logbooks from the aircraft and

refused to release them to Customs agents. At the time of

the seizure and arrests, the Gashos had stopped over in

‘Count three also asserts an abuse of process claim by plaintiff

Millardair, Inc. but this motion is not directed to Millardair’s

claim.

46a

Scottsdale while en route to Canada to deliver the airplane

to Millardair, a Canadian corporation, which had recently

purchased the aircraft from the Gashos’ aircraft restoration

company.

Plaintiffs allege in count three of the complaint that the

Customs Service became aware shortly after seizing the

aircraft that no basis existed for the seizure or for continued

retention of the airplane and that they nevertheless contin-

ued to detain the aircraft in order to obtain settlement or

release from civil liability for the wrongful arrest of the

Gashos and wrongful seizure of the aircraft. Complaint

9957 & 58, 61. Further, the complaint alleges that the

Customs Service referred the matter to the United States

Attorney for prosecution and that even after the United

States Attorney ‘‘refused to institute judicial forfeiture pro-

ceedings and recommended to Defendant United States

Customs Service that the aircraft be released,” the Customs

Service refused to release the aircraft ‘‘for a significant and

appreciable period of time.” Id. § 59 & 60. The complaint

asserts that the plaintiffs suffered mental and physical harm

as a result of the wrongful detention and that Millardair was

deprived of the use of the aircraft and revenues it would

have generated during the period of detention. Jd. § 62.

Defendant asserts two grounds for dismissal of the

Gashos’ ciaim of abuse of process: that the Gashos cannot

state an abuse of process claim because no judicial proceed-

ing was ever instituted, and that the Gashos lack standing to

assert an abuse of process claim because they had no inter-

est in the aircraft that was seized. Having considered the

parties’ written submissions and the authorities cited

therein, the court will grant defendant's motion.

Defendant contends that the Gashos cannot state an

abuse of process claim because they have not alleged the

Defendant asserts that the airplane was released approxi-

mately six weeks after the United States Attorney notified that

Customs Service that it would decline to commence a forfeiture

proceeding. Motion at 2 n.1.

47a

misuse of any judicial process as required under Arizona

law. Defendant asserts that a warrantless seizure and deten-

tion of property does not constitute judicial process because

it does not invoke the power of the courts. The Gashos

response by arguing essentially that they have alleged abuse

of a ‘‘legal process’’ as required to state a claim for abuse of

process under Arizona law because ‘‘the forfeiture process

is prescribed by statute and regulation” and includes both

administrative and judicial components.

The court concludes that the Gashos cannot state a claim

for abuse of process on the facts of this case. Arizona courts

interpret the element of misuse of “legal process” identified

by the Restatement (Second) of Torts § 682 to mean

“judicial process.” See, e.g., Morn v. City of Phoenix, 152 Ariz.

164, 166, 730 P.2d 873, 875 (App. 1986); Nienstadt v.

Wetzel, 133 Ariz. 348, 353, 631 P.2d 876, 881 (App. 1982).

Under Arizona law, an abuse of process claim must be based

upon allegations of misuse of the power of a court. For

example, in the Arizona decision most closely analogous to

the facts of this case, the court dismissed an abuse of process

claim predicated upon an alleged wrongful filing of a lis

pendens, rejecting the plaintiffs argument that a lis

pendens implicates judicial process by providing notice of

the claims in a lawsuit. Gray v. Kohlhase, 18 Ariz. App. 368,

502 P.2d 169, 172-73 (1972). The court in Kohlhase relied

upon a California decision which held that ‘‘[ T]he essence

of the tort “abuse of process” lies in the misuse of the power

of the court; it is an act done in the name of the court and

under its authority for the purpose of perpetrating an

injustice.’ "’ Id.(quoting Meadows v. Bakersfield Savings &

Loan Ass'n, 250 Cal. App.2d 749, 59 Cal. Rptr. 34 (1967).

See also Rondelli v. County of Pima, 120 Ariz. 483, 586 P.2d

1295, 1301 (App. 1978) (‘‘‘[ The tort of abuse of process ]

is an act done under the authority of the court for the

purpose of perpetrating an injustice....’"") (citation

omitted ).

As plaintiff notes, ‘process’ in the context of abuse of

process claims is more broadly defined than the restrictive

48a

statutory definition.’ Nienstedt v. Wetzel, 651 P.2d at 880.

The definition of ‘‘process’’ in the abuse of process context,

however, still is limited to ‘procedures incident to the

litigation process,”” such as noticing depositions, entry of

default and filing various types of motions. Jd. at 880-81.

The only decision cited by either party or of which the

court is aware that concerns an abuse of process claim in the

context of a seizure is the case noted in the court’s previous

order, Blue Dolphin, Inc. v. United States, 666 F. Supp. 1538,

1541 (S.D. Fla. 1987). The court in Blue Dolphin stated

flatly that no abuse of process may be claimed unless the act

complained of ‘‘results in issuance of some form of process

from the Court.”’ Jd. Further, the court limited such claims

to allegations of improper use of court process ‘“‘after suit

has been legally filed.”’ Jd.

The court concludes that the Gashos have failed to state a

claim for abuse of process. The Gashos themselves recog-

nize that the United States Attorney did nothing more than

review and investigate this matter after referral by the

Customs Service, Response at 4, and that he thereafter

“refused to institute judicial forfeiture proceedings.” /d.;

Complaint { 60. The Gashos provide no authority to sup-

port their contention that the definition of ‘process’ in the

context of an abuse of process claim should be expanded to

include administrative actions undertaken pursuant to stat-

ute or regulation. Having determined that the Gashos’

abuse of process claim must be dismissed for failure to state

a claim, the court need not and does not reach the question

of whether the Gashos sustained sufficient harm as a result

of the alleged wrongful detention to have standing to assert

such a claim.

$ ee e ~ a6 . .

Process’ is defined tor statutory purposes as ‘‘a citation, writ

or summons issued in the course of judicial proceedings.”’ A.R.S.

§ 1-215(26).

49a

I'T IS ORDERED granting defendants’ motion to dismiss

the Gasho’s claim of abuse of process (Doc. No. 72).

DATED this 23 day of March, 1992.

/s/ ROBERT C. BROOMFIELD

Robert C. Broomfield

United States District Court

Copies to all parties of record

50a

APPENDIX “F”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

JOHN R. GASHO, SR. and

Sharon Gasho, et al.,

Plaintiffs,

No. CIV 89-2077 PHX RCB

ORDER

vS.

UNITED STATES OF AMERICA,

et al.,

Defendants.

(Filed July 29, 1991)

This is an action against the United States under the

Federal Tort Claims Act (‘“‘FTCA"’) for false arrest/false

imprisonment, intentional infliction of emotional distress

and abuse of process, and under the Tucker Act for breach

of contract; and against defendant Northrop Worldwide

Aircraft Services, Inc. for negligence. The United States

(“defendant”) moves for summary judgment dismissing

those counts of the second amended complaint that are

asserted against the United States. The matter has been

fully briefed and the court has heard oral argument.

l. FACTS

This action arises out of the seizure by the United States

Customs Service of a DC3 airplane and the arrest of plain-

tiffs John and Sharon Gasho. The Gashos, owners of an

aircraft restoration company in Tucson, flew the aircraft to

Scottsdale Municipal Airport (referred to by plaintiffs as

the “Scottsdale Airpark"’) on June 24, 1988. The purpose

for bringing the aircraft to Scottsdale was to convert its

registration from U.S. to Canadian, preparatory to its deliv-

ery to a Canadian purchaser, defendant Millardair, Ltd.

5la

The Gashos met with Federal Aviation Administration

(“FAA”) Inspector John Zarcone, who issued the docu-

ments required for de-registration and exportation of the

airpiane. The Gashos and Zarcone then removed the Amer-

ican registration number from the airplane and Canadian

registration markings were affixed to the airplane.

At approximately 3:30 p.m. the same day, an air traffic

controller notified William Gately, a Customs Service Resi-

dent-Agent-in-Charge (““RAC’”’), of the change in the air-

craft’s registration markings. Gately dispatched two customs

officers, Special Agents William Ball and Roger Man-

nhalter, to investigate. Gately testified that he also tele-

phoned Corporal Karol Waversfeld of the Royal Canadian

Mounted Police (‘“‘RCMP’’) and learned that the Canadian

registration markings were invalid. Waversfeld testified,

however, that he learned from Lorraine Gray of the Cana-

dian Transport Ministry that an application had been re-

ceived for obtaining Canadian registry on the aircraft but

the process was incomplete and the numbers could not yet

be used. Waversfeld stated that he conveyed this informa-

tion to Gately or his representative.

Evidence concerning the date and time of these telephone

calls is conflicting. Defendants assert that the Canadian

registration markings were determined to be invalid prior

to the time Gately and his superiors decided to seize the

aircraft on June 24, the same day the airplane arrived in

Scottsdale. Plaintiffs cite the deposition testimony of Waver-

sfeld and Gray, which suggests that Waversfeld, and conse-

quently Gately, did not learn of the status of the registration

numbers until at least the next day.

Upon being dispatched by RAC Gately to investigate the

change in registration reported bv the air traffic controller,

Special Agents Ball and Mannhalter went to the airport

where they learned the identity of the Gashos and where

they were staying. The agents then confronted the Gashos

in their hotel room. The Gashos explained that they had

obtained de-registration documents from the FAA and that

they had received the Canadian registry markings from the

52a

airplane’s new owner, Millardair. Agent Bell nevertheless

read John Gasho his Miranda warnings. Gasho then called

his daughter Pamela Vining, a Phoenix attorney, and she

came to the hotel. The Agents, the Gashos and Vining then

went to the airport to obtain the FAA documentation the

Gashos had described to the agents.

At the airport, the Gashos gave the agents the documents

issued by FAA Inspector Zarcone. The documents referred

to the airplane by the Canadian registration markings dis-

played on the airplane but did not purport to verify that the

marks had been properly issued by the Canadian Transport

Ministry. One of the documents in fact required the owner

to confirm the validity of the marks under the applicable

foreign law. At some point before seizure of the aircraft,

both Agent Bell and John Gasho tried but failed to reach

Zarcone by telephone.

The agents then seized the aircraft by placing a lock on

one of the propellers. Prior to securing the airplane, the

agents allowed the Gashos to remove their personal prop-

erty. Sharon Gasho removed several items, including the

airplane’s logbooks, which she placed in Vining’s car.

Sharon Gasho told John Gasho in front of the agents that

she had taken the logbooks. The parties disagree as to

whether the agents reacted immediately to that information

but at any rate, the agents eventually demanded that the

logbooks be returned. The Gashos initially refused to turn

the logbooks over to the agents. The agents threatened

either the Gashos, Vining or all three with arrest if they

persisted in refusing to turn over the logbooks.

The Gashos then went to the Scottsdale Aviation Center

and called the Scottsdale Police. Several officers responded

but did not intervene in the dispute.' Vining then requested

an opportunity to talk with the Gashos privately and they

were allowed access to a private office. After a brief period,

' Defendants assert that the police officers joined the customs

agents in advising the Gashos to turn over the logbooks, but the

testimony cited does not support that assertion.

53a

the agents sought entry to the office. The parties disagree as

to whether Vining and the Gashos refused the agents entry.

Eventually, the agents entered with a key and placed the

Gashos under arrest. The agents handcuffed the Gashos,

lead them through the lobby of the aviation center out to

the parking lot, placed them in the Scottsdale Police squad

car and transported them to the Maricopa County Jail on

Madison Street.

During the booking procedure, Agent Mannhalter re-

ceived a call from his superior, Agent Howe, informing him

that Assistant United States Attorney Robert Colosi would

decline to prosecute and had directed that the Gashos be

released. Howe nevertheless directed Mannhalter to finger-

print and photograph the Gashos and inform them that the

Customs Service would seek criminal prosecution. A Cus-

toms Service Pilot, David Kunz, testified that Howe told

him the next day that criminal prosecutions would be

pursued to protect the Customs Service in the event the

Gashos brought a civil action against it. The United States

Attorney subsequently confirmed that the Gashos would

not be prosecuted, which was conveyed to the Gashos’

attorneys by letter dated October 27, 1989. Plaintiffs’ State-

ment of Facts, Exhibit 19.

Car] Millard, president of Millardair, completed the pro-

cess for obtaining Canadian registry several weeks after the

events of June 24, 1989 and then petitioned the Customs

Service to release the aircraft. The Customs Service initially

attempted to obtain hold harmless agreements from plain-

tiffs in exchange for release of the aircraft but plaintiffs

refused to execute the agreements. The Customs Service

also served John Gasho with a notice of seizure of the

aircraft but the United States Attorney subsequently de-

clined to pursue a forfeiture action. Millard finally obtained

the aircraft from the Customs Service in December 1988.

Millardair alleges that the aircraft was damaged by defen-

dant Northrop while in the custody of the Customs Service.

54a

Il. ANALYSIS

Plaintiffs initially brought both common law and constitu-

tional law claims against Customs Service Special Agents

Ball and Mannhalter and asserted a claim for damages

against Northrop Air, without specifying the legal grounds.

Plaintiffs subsequently amended the complaint to allege

claims of negligence against Northrop and a breach of

contract claim against the United States, both based upon

allegations of damage to the aircraft while in custody.

On August 15, 1990, the court substituted the United

States for defendants Ball and Mannhalter on the common

law claims under the FTCA and dismissed the constitutional!

tort claims for failure to effect service within 120 days as

required by Fed. R. Civ. P. 4(j). Plaintiffs suqsequently

amended the complaint to conform to the order of substitu-

tion and added a claim against the United States for abuse

of process. The United States moves for summary judgment

dismissing those counts of the second amended complaint

that assert claims against the United States.

A. Count One: False Arrest/False Imprisonment

Defendant seeks dismissal of count one on the grounds

that the Customs Service agents arrested the Gashos with

probable cause to believe they had violated federal statutes,

and that probable cause is an absolute defense to an action

for false arrest or false imprisonment under Arizona law.

Plaintiffs do not dispute and the court agrees that probable

cause is a complete defense to this claim.’ Hockett v. City of

Tucson, 139 Ariz. 317, 320, 678 P.2d 502, 505 (App. 1983).

Plaintiffs argue, however, that a question of fact exists as to

whether the Gashos were arrested because the agents be-

lieved they had violated a statute by taking the logbooks or

instead were arrested merely because the Gashos had an-

* Defendant also cites A.R.S. § 5-112.01 as support for this

proposition. As plaintiffs note, however, that statute is limited to

suits brought by persons “suspected of wagering violations” as

thus is not applicable in this case.

55a

gered the agents and because the agents needed to create a

defense to any ensuing civil action the Gashos might bring.

Defendant asserts that the agents had probable cause to

seize the aircraft because, in light of the report from

Canadian authorities that the airplane’s registration mark-

ings were invalid, the markings constituted a ‘suspicious

object”’ that indicated a violation of 49 U.S.C. § 1472(b).

Texas v. Brown, 460 U.S. 730, 733, 103 S. Cr. 1535, 1541, 75

L.Ed.2d 502 (police may seize suspicious object in plain

view if perceived while officers engaged in lawful activity).

Defendant contends that probable cause to seize the aircraft

extended to the logbooks because they contained evidence

that would identify its origin and owner. Finally, defendant

asserts that, whether or not the seizure of the aircraft was

lawful, the agents had probable cause to arrest the Gashos

for violation of 18 U.S.C. § 2232 and § 2233, which prohibit

interference with the seizure of property by persons autho-

rized to make searches and seizures.° The seizure need not

have been lawful for such interference to constitute a

violation of these statutes. United States v. Gibbons, 331 F.

Supp. 970, 971-72 (D. Del. 1971), aff'd 463 F.2d 1201 (3rd

Cir. 1971).

Plaintiffs argue that a genuine issue of fact exists as to

whether defendant's agents arrested the Gashos on proba-

* Section 2232 provides for the assessment of a fine or imprison-

ment against any who “‘before, during, or after seizure of any

property by any person authorized to make searches and seizures,

in order to prevent the seizure or securing of any goods, wares, or

merchandise by such person...destroys, or removes the

same ...."" 18 U.S.C. § 2232.

Section 2233 provides for similar penalties against anyone who

forcibly ‘attempts to rescue or dispossess any property, articles, or

objects after the same shall have been taken, detailed or seized by

any... person authorized to make searches and seizures.” 18

U.S.C. § 2233.

56a

ble cause that they had violated a statute,‘ as defendant

contends, or whether the real reason the Gashos were

arrested was that they had angered the agents and the

agents wanted protection in the event the Gashos filed a

lawsuit against the agency. Plaintiffs cite the deposition

testimony of Customs Service Pilots David Kunz and Will

Willbanks. Kunz testified from notes concerning his conver-

sation on June 25, 1988, the day following the Gashos’

arrest, with John Howe that indicated the Gashos were

arrested because they made the agents mad and that the

criminal prosecution would be pursued to provide protec-

tion from any subsequent lawsuit. Willbanks testified con-

cerning his misgivings about the arrest of the Gashos at the

time it occurred and his attempt to distance himself from

that event. He also testified that he told Agent Mannhalter

prior to the Gashos’ arrest that the logbooks ‘‘weren’t a big

issue [because] Customs would not put that aircraft in

service.”’ Plaintiffs Statement of Facts, Exhibit 13 at 68.

Plaintiffs also cite the deposition of Agents Ball and Man-

nhalter indicating that neither initially attempted to stop

Sharon Gasho from removing the logbooks or placing them

in Vining’s car.

The evidence plaintiffs cite, construed in the light most

favorable to plaintiffs, would not prevent defendant from

asserting the defense of probable cause of violation of

* Plaintiffs also contest defendant's claim that it had probable

cause to seize the aircraft based on information that the Canadian

registration markings were invalid. Plaintiffs cite the deposition

testimony of RCMP Cpl. Waversfeld and Lorraine Gray of the

Canadian Ministry of Transport which suggests that Waversfeld

did not learn until the day after the Gashos were arrested that the

Canadian registration markings were not yet authorized. Thus,

plaintiffs argue that the agents could not have received informa-

tion that the numbers were invalid prior to arresting the Gashos

as defendant claims. Plaintiffs concede, however, that this court

need not determine whether the aircraft was lawfully seized in

order to determine whether the agents had probable cause to

arrest the Gashos under 18 U.S.C. § 2232 or § 2233.

57a

sections 2232 and 2233. First, even if the agents arrested

the Gashos out of anger, as the testimony of Kunz and

Willbanks indicates, the arrest would still be privileged if

supported by probable cause. An arrest is privileged only if

the arresting officer's purpose is to bring the offending

party before a person or body charged with enforcing the

law. Restatement (Second) of Torts § 127. Evidence that

defendant's agents attempted to book the Gashos indicates

they did have such a purpose. The booking process was

terminated when the agents learned the United States At-

torney had decided not to prosecute but the prosecutor's

subsequent decision is not relevant to whether the agents

had the purpose at the time of the arrest to bring the

Gashos before a court of law. See Hockett v. City of Tucson,

138 Ariz. 317, 320, 678 P.2d 502, 505 (App. 1983) (‘‘Prob-

able cause to make an arrest may exist despite the fact that

the charges are subsequently dismissed or the accused is

found to be innocent.”) In addition, an arrest made for a

proper purpose is not unprivileged because of any “ulterior

motive” the arresting officer may have in making the arrest,

such as a grudge against the person arrested. Restatement

(Second) of Torts § 127 comment a. ‘“[ A] bad faith motive

to ‘get’ a suspect is irrelevant if the arrest is supported ...

by the existence of probable cause....” Smith v. Gonzales,

670 F.2d 522, 527 (5th Cir. 1982), cert. denied 459 USS.

1005 (1982).

The fact that the agents did not immediately react upon

learning that the logbooks had been removed from the

aircraft does not necessarily indicate they did not at some

later point realize that removal of the logbooks violated a

statute. At that point, the agents had probable cause to

arrest the Gashos for refusing to release the logbooks.

Plaintiffs cite as additional evidence that the Gashos were

not arrested on probable cause, the booking records and

testimony of the arresting agents which indicates the

Gashos were arrested on suspicion of violating 18 U.S.C.

§ 549, which prohibits theft from the custody of the Cus-

toms Service, and not the statutes on which defendant now

58a

bases its claim of probable cause, 18 U.S.C. § 2232 and

§ 2233. Plaintiffs assert that defendant does not attempt to

base its defense of probable cause on section 549 because

the agents did not have probable cause to arrest the Gashos

for violating that statute. Defendant does not respond to

that allegation, apparently conceding that its agents did not

have probable cause to arrest under that statute.”

Assuming defendant's agents did not have probable cause

to arrest the Gashos for violating section 549, the question

arises whether a warrantless arrest for violating a statute for

which no probable cause existed is nevertheless privileged

as long as probable cause did exist for a different statute.

Neither party addresses this issue and the Arizona courts

have not yet ruled on the specific question presented. The

Oregon Court of Appeals addressed a similar question,

however, holding that where the an officer’s subjective basis

for arresting a defendant was a warrant intended for some-

one other than the defendant, the arrest was still privileged

against a claim of false imprisonment because probable

cause also existed to arrest the defendant for a minor in

possession of alcohol offense upon which the defendant was

convicted. Bacon v. City of Tigard, 81 Or. App. 147, 724 P.2d

885, 886 (1986).

The court in Bacon extended to civil actions the rule

established in criminal proceedings that ‘‘an arrest 1s

deemed valid if the officer had probable cause to make it

but also had or stated a reason for the arrest other than the

> In addition, the court notes that the evidence does not appear

to support the felonious intent requirement for violation of

section 549, United States v. Slocum, 708 F.2d 587, 596 (11th Cir.

1983). The court notes, however, that the arrest may have been

valid even if the agents were mistaken in believing they had

probable cause to arrest the Gashos for violation of section 549.

See Hockett, 138 Ariz. 15 320, 678 P.2d at 505.

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