F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A T T H E W A L E X

A N D E R T A R A B O C H I A ; A L E X D A

N I E L T A R A B O C H I A , Plaintiffs-Appellants
,

v

.

F B I S P E C I A L A G E

N T M I C K

E Y A D K I N S , Defendant
,

and

S E R G E A N T D A N C H A D W I C K , W ashing ton Department of F ish and W ildlife; O F F I C E R B R E T T H O P K

I N S , W ashing ton Department of F ish and W ildlife; S E R

G E A N T B R A D R H O D E

N , W ashing ton Department of F ish and W ildlife; MI KE CENCI
, Capt./Director of L aw Enforcement of the W ashing ton Department of F ish and W ildlife,

Defendants-Appellees

. N o. 11-35837

D.C. No. 3:10-cv-05197- B HS

OPI NI ON

A ppeal from the United States District Court for the W e stern District of W ashing ton B e njamin H. Settle, District J udg e, PresidingT A R A B O C H I A V

. A D K

I N S 2

Arg ued and Submitted

April 7, 2014—Seattle, W ashing ton

F iled September 9, 2014

B efore: Michael Daly

Hawkins, J ohnnie B . Rawlinson, and Carlos T. B ea, Circuit J udg es.

Opinion by

J udg e Hawkins

SUMMARY *

Civil Rights

The panel reversed in part and affirmed in part the district court’s summary judg ment a nd r e manded i n an action broug ht by four commercial fishers who alleg ed that officers f r o m the W ashing ton D epartment of F ish and W ildlife illeg ally stopped and searched their automobile on March 23, 2007, and harassed them throug hout the y ears because o f a personal vendetta.

The panel h eld that it was clearly established on the date of the automobile stop that plaintiffs had a F ourt h Amendment rig ht not to be stopped by F ish and W ildlife officers while d

riving on a hig hway absent r easonable

s u s picion they had eng ag ed or were about to eng ag e in unlawful activity

. The panel held that the stop, which lacked
any b asis in suspicion of unlawful behavior or statutory

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.T A R A B O C H I A V

. A D K

I N S 3

authority that would r en der it permissible under the administrative search e x ception, violated plaintiff s’ clearly established F o urth Ame n d m ent rig hts. The panel therefore held that officers Michael Cenci and Dan Chadwick were not entitled to q u al ified immunity on plaintiffs’ F ourth Amendment claim.

The panel affirmed the dismissal of plaintiffs’ F ourteenth Amendment substantive due proce s s claim on the g rounds that the district court correctly deemed this claim untimely

.

COUNSEL

Am i t Kurlekar (arg

u ed), Kaufhold Gaskin L L P, San F rancisco, California, Pro B ono Co u n s el for PlaintiffsAppellants.

Paul F

. J ames (arg

ued), Assistant Attorney General a nd Robert W. F erg uson, Attorney General, Office o f the W a shing ton Attorney Genera l
, Oly mpia, W ashing ton, for Defendants-Appellees.

OP INION

HAW KI NS, Circuit J udg e:

W e must d ecide whether a suspicionless rov i n g automobile stop of commercial fishers made while they drive

on a p ublic hig hway to investig ate compliance with W a shing ton fish and g a me laws constitutes an unreasonable search and seiz u r e w i t hin the meaning of the F ourth Amendment and, if so, whether this r i gh t was clearlyT A R A B O C H I A V

. A D K

I N S 4

e s t a blished as of the time of the stop at issue in this ca s e. B ecause we d e termine that this stop, which lacked any basis in suspicion of unlawful behavior or statuto ry authority that would render it permissible under the administrative search

ex c e ption, violated Appellants’ c learly established F ourth A mendment rig h ts, we reverse the district court’s g r a n t o f qualified immunity on Appellants’ F ourth Amendment claim and remand. W e affirm the dismis s a l of Appellants’ F ourteenth Amendment substantive due p r o cess claim because the district court correctly d e e m ed this claim untimely

.

I. BACK G R OUND

The facts underlying t h i s c a se stretch back to the y e ar 2000 a nd culminate in an automobile stop on March 23, 2007. Appellants Matthew and Alex Tarabochia, 1 along with their brother, B r

y an, are the sons of J o sep h Tarabochia, 2 a long time commercial f

isher. The Tarabo c h i a s alleg e that beg inning sometime in 2000, Captain Michael Cenci a nd other W ashingt o n Department of F ish and W ildlife (“W DF W ”) officers beg an a “ p e r s onal vendetta” ag ainst the m

. T he W DF W o fficers insist they were eng ag ed in
proper law enforcement a ctivities ag ainst fishing scofflaws. The district c ourt was able to resolve these facts in the officers’ favor. W e are not.

1 Du e to th eir f

ailu re to list all f

ou r o rig in al p l ain t if

f s o n t h e N o t i c e of A p peal, Matth ew a n d Al e x a re t h e on ly A

pp ellan ts in th is case. S ee To rres v. Oa kla n d S

ca ven g er Co

. , 4 8 7 U.S. 31 2
, 3 17

– 1 8 (1 9 8 8 ) (u se of

“ et al.” d o es n o t co n f

er j u risd i ctio n o v er ap p eal o f p lain ti ff n o t l isted in

n o tice o f ap p eal).

2 W e ref er to th e T a r a bo ch i as b y th eir f i rst n am es th ro u g h o u t th is

o p in io n f o r clarity

.T A R A B O C H I A V

. A D K

I N S 5

Taking the facts, as we must, in the lig ht most favorable
to the nonmoving p a

r ty , Gravelet

- B l o ndin v. Shelton
, 728 F .3d 1086, 1090 (9th Cir. 2 013), from 2000 until the date of the stop at issue, Captain Cenci and other W DF W officers have, among other thing s: followed the Tarabochias in their automobile on multiple occasions; detained J o seph a nd Matthew, including J oseph o n o n e occasion for an hour a nd

a half o n l y to let him leave without citation; c onfronted the Tarabochias aboard their fishing vess e l w ith a knife in hand and accompanied b y a t least six other W DF W o fficers; intenti o n a l l y swerved into their automobile while both cars

were d riving on a public road; f o l l o w e d Alex and B ry an to school on an almost daily basis; verbally threatened to “g et” J oseph and A lex o n u n specified charg es; a nd charg ed the Tarabochias w ith at least twenty -seven “criminal counts, in
at least [ eleven] court cases, in four [ different] jurisdictions,”
many of which charg es were dismissed p r i or to trial, none resulting in conviction. After a March 2 006 incident, which resulted in charg es that were later dro p ped, W DF W officers started spreading unfounded rumors that J oseph posed a risk to officer safety

.

Given this history
, the Tarabochias b e ca m e fearful o f W D F W officers, and in 2006 J oseph requested a meeting with the local prosecutor and the director o f t h e W D F W to address the family ’s concerns. A ccording to the prosecutor, when Captain Cenci and a nother W DF W officer arriv e d at the meeting
, Cenci immediately tried to frisk J oseph despite what the prosecutor considered a lack of any evidence that he posed a t h r eat. F inding Cenci’s behavior “outrag eous,” the
prosec u t o r p revented Cenci from c a rry ing out the frisk, a

nd the officers left the meeting

.T A R A B O C H I A V

. A D K

I N S 6

On the morning o f March 23, 2 0 07, the Tarabochias were driving in their pickup truck, whi c h was loaded w ith a tote containing recently caug h t salmon, along a state hig hway a nd

a public road when W DF W Serg eant Dan Chadwi c k and Captain Cenci stopped them. 3 Approx imately a half an hour beforehand, Captain Cenci had observed the Tarabochias from afar while he conducted a field inspection in an area of the lower Columb i a R i v e r where commercial fishers reg ularly tie up their boats and unload recently caug ht fish. A portion of this area is near the Tarabochias’ home.

Sometime that morning
, a newspaper reporter

a c company

ing Captain Cenci as a ride a long passen ge r notified Cenci that h e h a d o b s e rved the Tarabochias load salmon into the tote o n the back of their pickup truck. Cenci called Serg eant Chadwick, who was also in t h e g e neral area and relay ed this information. Althoug h the officers suspected the Tarabochias had salmon on their truck, it i s undisputed that they h ad no r eason to believe thes e s a lmon h ad been taken in violation of applicable fish and g ame laws.

The officers decided not to inspect the f i s h a t the d ock, but instead decided to pull the Tarabochias’ truck over once

on the hig hway 4 to check for compliance with f ish a nd g ame laws. All four Tarabochias left the area of the field inspection in their p ickup truck loaded with the tote of salmon. Serg eant

3 T h e f acts in d i cate th at th e W D FW o f f icers b eg an to f

o llo w th e T arab o ch ias o n th e h ig h w ay an d th en f o llo w ed t h e m o n to a p u

b lic ro ad

. B ecau se w e f

in d th is d istin ctio n i rrelev an t to o u r co n stitu t io n al in q u i ry , w e ref er to th e p lace o f

th e sto p an d search as a “ h ig h w ay .”

4 T h e o f f icers assert th ey d id so b ecau se o f s af ety co n cern s b ased o n an earlier en co u n ter Cap tain Cen ci h ad w ith

J o sep h tw o d ay s b ef

o reh an d

.T A R A B O C H I A V

. A D K

I N S 7

Chadwick, who h ad been parked along a state hig hway , saw the truck pa ss by him. A t that time, he beg an to follow the Tarabochias and, after t h e T arabochias had ex ited off the hig hway onto a public r oad, he activated his emerg ency lig hts
to effectuate the stop. The Tarabochias initially f a iled to stop, but C a ptain Cenci, who had been following behind Serg e ant Chadwick, pulled his automobile in front of the Taraboch i a s , and caused them to stop. Officers B rett Hopkins and B rad Rhoden soon arrived on the scene to lend assistance. 5

T h e Tarabochias refused to ex it the automobile o r o p e n the d oors until sheriff’s deputies arrived because of their past

ex p erien ce w i t h the W D F W officers. Once someone the Tarabochias recog n iz ed a s a member of the W ahkiakum County Sheriff’s Office a

rrived (about twelve minutes later), the Tar a b o c h ias o pened the car doors, and the W DF W officers a

rrested Matthew and J oseph. The officers proceeded to inspect the salmon in the tote, which inspection failed to reveal any

fish and g a me violations.

J oseph a nd Matthew were booked, cited for, among other thing s, “avoiding a w ildli fe field inspection,” and released. A Washing ton state district court f or t h e County o f W ahkiakum later dismissed a ll charg es, finding the stop, search, a nd a rrests unlawful since the office r s had acted contrary to state law and to the W ashing ton state constitution

5 B ecau se th e co m

p lain t d o es n o t alleg e an d t h e reco rd d o es n ot in d icate th at Of f icers Ho p k in s o r Rh o d en to o k p art in t h e d e c i s io n to sto p an d search th e T arab o ch ias’ au to m o b ile or th at th ey p articip ated in th e alleg ed

“ v en d etta,” ev en co n stru in g th e f acts in th e l i g ht m o st f

av o rab le to th e T arab o ch ias, t

h ere is in su f

f icien t b asis to h o ld eith er o f th em liab le u n der 4 2 U.S.C. § 1 9 83

. T h e d i strict co u rt i s th eref o re in stru cted to d ism iss th e

co m plain t ag ain st th em

w ith p rej u d ice.T A R A B O C H I A V

. A D K

I N S 8

i n s t o pping and searching the Tarabochias’ automobile. O n appeal, the superior court upheld this decision, althoug h without reaching the c o nstitutional issue, and reaffirmed that
at the time Captain Cenci ordered the stop of the T arabochias’ automobile, he d id not have “a n y reason to believe” the Tarabochias’ truck contained “evidence of a violation of law or rules[ .] ”

The T arabochias filed their p r o se federal district court complaint pursuant to 42 U

. S

. C

. § 1 983 in March 2010, alleg ing that W DF W officers Dan Chadwick, B rett Hopkins, B rad Rhoden, and Mike Cenci violated their F ourth a nd F o u r t e e n th Amendment rig hts by stopping and searching their automobile on March 2 3, 2 0 07, and harassing them throug hout the y ears. 6 The d istric t c o urt initially g ranted
summary judg ment to the officers on the Tarabochias’ F ourth Amendment claim, but denied them summary j udg ment on the Tarabochias’ F ourteenth A mendment substan t i ve d ue process c laim. Rely ing on a California state court de c i sion, the district c ourt held that qualified immunity precluded the Taraboc hias’ F ourth Amendment search and seiz ure claim since “the law r eg arding w arrantless stops by W DF W officers was not clearly

established” at the time of the stop.

I n September 2011, the c o u r t g ranted the Defendants’ second motion for summary judg ment and dismissed the c ase, holding that the § 1983 statute of limitations barred the T a r a b ochias’ F ourteenth Amendment substantive d u e p r o c e s s claim. This appeal followed.

6 T h e T arab o ch ias also alleg ed a Six t h Am e n d m e n t claim an d a Fo u rteen th A m en d m en t eq u al p ro tectio n c l a i m , w h ich h av e sin ce b een d ism issed an d are n ot ad v an ced o n

ap p eal.T A R A B O C H I A V

. A D K

I N S 9

II. STANDARD OF REVIEW

W e review de novo the district court' s g rant of summary judg ment based on qualified immu n i t y and statute o f lim i t a t i ons g rounds. Hooper v. Lockheed Martin Corp.
, 688 F .3d 1037, 1045 (9th Cir. 2012) (statute of limitations); Davis v. City of Las Vegas
, 4 7 8 F .3d 1048, 1053 (9th Cir. 2007) (qualified immunity ). “ I n determining w h e t her
g enuine issues of material fact remain, we are re q u i r e d to view all e v idence and draw all inferences in the lig ht most favorable to the nonmoving par t y , here, the” Tarabochias. Gravelet-Blondin
, 728 F .3d at 1090 (internal quotation marks omitted).

III. DISCUSSION

A. F ourth Am endm ent Claim

W e beg in with the g ra n t o f summary judg ment to D e f endants o n the Tarabochias’ F ourth Amendment search and seiz ure claim based on q ualified i m m u nity

. “ Qualified immunity protects g overnment officials from civil damag e s ‘insofar as their conduct d o e s not violate clearly e stablished statutory or constitutional rig hts of which a reasonable person

wo u l d h ave known.’” Chappell v. Mandeville
, 7 06 F .3d 1052, 1056 (9th Cir. 2013) (quoting Harlow v. Fitzgerald
, 457 U.S. 800, 818 ( 1 9 8 2 )). This doctrine provides an immunity f

rom suit rather than a defense to liability
, Pearson

v. Callahan
, 555 U.S. 2 23, 231 (2009), and ensures that “officers are on notice their conduct is u nlawful” before being subjected to suit. Hope v. Pelzer
, 536 U.S. 730, 739 (2002). I n this way , the doctrine strikes a balance between “the need
to hold public officials accountable when they ex ercise power irresponsibly and the need to shield officials fromT A R A B O C H I A V

. A D K

I N S 10

harassment, distraction, and liability when they perform their duties reasonably .” Pearson , 555 U.S. at 231.

I n determining whether o f f i cers are entitled to qualified immunity
, w e consider (1 ) w h ether “the facts alleg ed show the official’s conduct viola t e d a constitutional rig ht; and (2) if so, w hether the rig ht was clearly established” as of the date of the involved events “in lig ht of the specific contex t of the case.” Robinson v. Y

ork
, 566 F .3d 817, 821 (9th Cir. 2009). W e ex ercise our discretion to consider the constitutional violation prong first. See Pearson , 555 U.S. at 236.

1. Constitutional Violation

The F ourth Amendment gu a rantees “[ t] h e rig ht of the people to be secure in their person s , houses, papers, a nd effects
, ag ainst unreasonable searches and seiz ures[ .] ” U.S. Const. amend. I V. Given the F ourth Amendment’s c ore p u r pose of protecting a g ainst arbitrary intrusions b y g overnment officials, see Delaware v. Prouse
, 440 U.S. 648, 653–54 (1979), “[ a ] search or seiz ure is ordinari ly unreasonable in the a

bsence o f indiv i d u aliz ed suspicion o f
wrong doing .” United States v. F raire
, 575 F .3d 9 29, 931 (9th Cir. 2009) (citing City of In d i anapolis v

. Edmond
, 531 U.S. 32, 37 (2000)). B ecause stopping a n automobile a

nd detai n i n g its o ccupants, “even if only for a brief period a nd for a limited purpose,” constitutes a “ seiz ure ” under the F ourth Amendment, W

hren v. Unite d States
, 517 U .S. 806, 8 0 9–10 (1996), an official must have individualiz ed “reasonable suspicion” of unlawful conduct to carry out such

a stop. See Prouse
, 44 0 U

. S

. a t 663; United States v

. Brignoni-Ponce , 422 U.S. 873, 884–86 (1975).T A R A B O C H I A V

. A D K

I N S 11

Defenda n t s a r g u e t h a t t h e s e F o u r t h Amendment principles

are not appl i c able to the automobile stop and search in this

case b ecause of the Tarabochias’ status as commercial fishers. B e cause administrative inspections of private property , such as the one purportedly carried out b y Defendants here, constitute “sea r c hes” under the F ourth Amendment, Donovan v. Dewey
, 452 U.S. 594, 598 (1981), i f t h e y are “unaccompanied by any quantum o f indiv i dualiz ed, articulable suspicion” they “must be undertaken pursu ant to p reviously specified ‘neutral criteria,’” i.e., a warrant. Prouse
, 440 U.S. at 6 6 2 (quoting M a r shall v. B arlow'

s, Inc.
, 436 U.S. 307, 323 (1978) ). However, a w arrant is not required if the search falls within “certain carefully defined classes of cases.” Camara v

. Mun. Court of City & Cnty. of S.F. , 387 U.S. 523, 528 (1967).

The WDF W officers arg u e that the sto p and search here falls with i n o ne of these classes of cases, namely
, administrative searches of enterprises eng ag ed in p e rvasively

re gu lated industries. B ecause the Tarabochias a re commercial fishers w h o had salmon a board their moving truck, Defendants arg ue, they c ould be stopped by officers on

a h i g hway to inspect their documents and demand they display their catch, even absent a ny suspicion of unlawful behavior. The officers arg ue they needed only

“knowledg e” that the Tarabochias had recently eng ag ed in f ishing to justify the stop under the F ourth Amendment. 7

7 Def en d an ts d o n o t arg u e th at th ey sto p p ed th e T arab o ch ias as p art of

a f ix ed ch eck

p o in t. T h eir relian ce on ch eck p o in t cases f

o r t h e p ro p o sitio n th at in d iv id u al i z e d s u sp icio n o f w ro n g d o in g is u n n ecessary is th eref ore

m isp laced g iv en t

h e d istin ct n atu re o f ch eck p oin ts as o p p o sed t o t

h e ty p e

o f ro v in g sto p at issu e h ere. S ee Fra ire
, 5 7 5 F.3 d at 9 3 4 –3 5 (h o ld i ng a ch eck p o in t sto p reaso n ab le u n d er t h e Fo u rth A m en d m en t an d ex plain in g th at “ [t]h e su

b j ectiv e in tru sio n f

ro m a ch eck

p o in t sto p is sig n if

ican tly lessT A R A B O C H I A V

. A D K

I N S 12

The administrative se arch ex ception is applicable to warrantless searches where the search promotes an important
g overnmental interest, is a uthoriz ed by statute , a

nd the authoriz ing statute a

nd its reg ulatory scheme provide specific limitations on the manner a nd p lace of the search so a s to limit the possibility o f abuse. See United States v. Raub
, 637 F .2d 1205, 1209–11 (9t h C ir. 1 980) (search of fishing vessel h eld to be within the administrative search ex ception). W h ere an inspection is authoriz ed by statute but there a re “ no rules g overning the procedure that inspectors must follow, the F ourth A mendment and its various restrictive ru l es apply

. ” Colonnade Catering Corp. v. United States
, 397 U.S. 72, 77 (1970).

An industry ’s long history of reg ulation is also relevant to th i s i n quiry insofar as it limits an individual’s reasonable

ex p ectation of privacy in thing s or places traditionally subject
to search under the industry ’s r eg u lator y s c h eme. See Donovan
, 452 U.S. at 605–06; Raub
, 637 F. 2 d a t 1210. I t therefore comes as no surprise that the c a s e s in which this

e x ception h as been applied involve warrantless searc h e s conducted on the premises o r w i t hin the milieu of the
reg ulated business or industry

. S ee, e.g. , Donovan
, 452 U.S. 594 (mines and stone quarries); United Stat e s v

. Biswell
, 406 U .S. 311 (1972) (g un retail establishments); Colonnade Catering Corp.
, 397 U

. S. 72 (liquor retail establishments); United States v. Kaiyo Maru No. 5 3
, 699 F

. 2d 989 (9th Cir.

th an o t h er ty p es o f seizu res, s u ch as ran d o m sto p s ” )

. A d d itio n ally
, alth o u g h Def

en d an ts alleg e th ey sto p ped th e T arab o ch ias o n th e h ig h w ay b ecau se s to pp in g th em in th e f ield i n sp ectio n area n ear th eir h o m e p resen t ed u n id en tif

i ed saf ety co n cern s , th ey d o n o t attem p t to j u s tif

y

co n stitu tio n ally th e s to p o n th e b asi s o f th is d isp u ted f act. W e th eref

ore d o n o t ad d ress th is arg u m en t.T A R A B O C H I A V

. A D K

I N S 13

1 983) (fishing vessels); Raub
, 637 F .2d 1205 ( fishi n g vessels); United States v. Tsuda Maru
, 470 F

. Supp. 1223 (D. Alaska 1979) (fishing

vessels).

To justify the stop under this ex ception, the o fficers rely

on the state’s broad interest in p rotecting the fishery
, the long history of reg ulation o f the commercial fishing industry
, a nd
two W ashing ton state statutory provisions. T o b e sure, protecting the fishery is a n importan t go vernmental interest

a n d “[ c ] ommercial f

ishing has a long history of bein g a closely reg ulated industry

. ” R a u b
, 637 F .2d at 1 2 09. B ut a specific statute authoriz ing a particular t y p e o f warrantless search is r equired, a

n d the ex isten c e o f such a statute alone
may not even be sufficient, f or t h e administrative search

ex c e ption to apply

. See Kaiyo Maru No. 53
, 699 F .2d at 995 (noting that the “reasonableness” o f a warrantless inspection
prog r am under the F ourth Amendmen t “is determined on a case-by -case basis” and “depends on the specific enforcement needs and privacy g uarantees of each statute”); Raub
, 637 F

. 2d at 1211 n.7 (ex plicitly limiting its holding to searches under the Sockey e Salmon or Pink Salmon F ishing Act); Tsuda Maru
, 470 F

. Supp. a t 1 227–30 ( u p h o l d ing search under the F ishery

Conservation Manag ement Act).

The officers rely on two s t a t utory provisions within W a shing ton’s F ish and W ildlife Enforcement Code a s providing authority f

or the stop and search at issue. The first
statute provides that, “ [ b] a sed upon a rticulable fac t s t h at a person is eng ag ed in fishing

. . . fish and w i ldlife officers have the au t h o r i ty to temporarily stop the person and check for valid licenses, tag s, permits, stamps, or catch record cards, and to inspect all fish

. . . a n d wildlife in p o ssession as w ell

a s t h e e q uipment being u sed to ensure compliance with

. . . this title.” W ash. Rev. C o d e § 77.15.080(1) (2002). ThisT A R A B O C H I A V

. A D K

I N S 14

s t a t u t e does not ex pressly authoriz e an automobile stop o r define “eng ag ed in fishing ,” and Defendants have pointed to

no reg ulatory or other published authority appl y i n g this provision to a roving automobile stop of commercial fishers.

Assuming
, arguendo
, that one c ould b e “eng ag ed in fishing ” while driving on a hig hway w ith salmon, g i v e n t h e statute’s lack of definition and failure ex plicitly to authoriz e the stop and search of an automobile, a commercial fisher is unlikely to be aware that this provision could subject him or her to a stop and search while eng ag ing in this conduct. This factor w eig hs ag ainst finding that section 77.15.080(1) meets the demands of the a d m i n istrative search ex ception, much less that it authoriz es this ty pe of stop in the first place. See Donovan
, 452 U.S. at 603 (u p h o l ding a warrantless search under the a dministrative search ex ception in part because, in addition to being “specifically t ai l o red” to protect the
g overnment' s interests, the reg ulati o ns the F ederal Mine Safety and Health Act of 1977 imposed w e r e “ sufficiently pervasive and defined that the owner of such a [ mine] cannot help bu t b e aware that he will be subject to effective inspection”) (internal quotation marks omitted).

Furthermore, unlike in Kaiyo Maru No. 53
, 699 F. 2 d at 99 4 –97, or Raub
, 637 F .2d at 1210, where the relevant
statutes and reg ulations carefully limited warrantless searc h e s to c e rtain areas within fishing vessels found in specific waters and to individuals either actively eng ag e d in fish h a r v esting

or in suspicious activities, there is nothing in section 77.15.080(1) limiting the potential scope o f a utomobile searches conducted u n de r its authority

. W ithout these limitations, section 77.15.080(1) could p otentially authoriz e inspection of any automob ile possibly containing fish o r wildlife a t a n y t i me, w hether in motion or stationary
, and inT A R A B O C H I A V

. A D K

I N S 15

any location, even if hundreds of miles fr o m the closest fishing g r ounds or commercial fishing establishment, so long

as an officer believed the person was then “ e ng ag ed in fishing .” The statute’s lack o f specificity is further evidenced by its application to all “persons,” not simply to commercial fishers. S ee State v. Thorp
, 856 P.2d 1123, 1126 (W ash. Ct. App. 1993) (holding a dministrative search ex c eption inapplicable to a roving automobile stop where the relevant
st a t u t e a pplied to “ any person,” indicating reg ulation of the
g eneral public, not a p articular industry )

. Therefore, we find unpersuasive Defendants’ arg ument that this statute authoriz ed the stop and search o f the T ara b o c hias’ automobile and d id so in a manner consisten t w ith the administrative search ex ception.

The o nly other statute the o fficers point t o p r o vides that

“ [ f] ish and wildlife o fficers may inspect without warrant at reasonable times a

n d in a reasonable manner the premises, containers, fishing equipment, fish, seaweed, s h e l lfish, a nd wildlife, and records required by the departmen t of any commercial fisher[ .] ” Wash. Rev. Code § 77.15.096 (2002). This provision g oes on to prohibi t officers from conducting warrantless searches and seiz u r e s where “the thing o r place is protected from search w ithout warrant within the meaning of Article I
, section 7 o f t h e s tate Constitution.” As with section 77.15.080(1), this statute say s nothing of stopping o r searchi n g commercial fishers’ automobiles and Defendants have provided no authority interpreting this pr o v i s i on a s authoriz ing such a stop.

Even if section 77.15.096 could somehow be construed to aut h oriz e the suspicionless stop and subsequent search of aT A R A B O C H I A V

. A D K

I N S 16

closed tote aboard a commercial fishe r ’ s automobile, 8 the portion of this provi s i o n relied upon by Defendants would still f ail to meet the requirements of the administrative search

ex c e ption since it “does not p r ovide any standards to g u ide inspectors e ither in thei r s election of [ automobiles] to be searched or in the ex ercise of their authority to se a r ch.” Donovan
, 4 52 U.S. at 601; accord Colonnade Catering Corp.
, 397 U.S. at 77. I ns t e a d
, the only limitation this portion of sectio n 77.15.096 would p lace on stops a nd inspections of commercial f ishers in moving automobiles would be that such stops be c a rried out “at reasonable times and in a reasonable manner.” Th e F ourth A mendment already requ i r e s that searches be “reasonable,” and the Supreme Court has made clear that additional g uidance to cabin officers’ discretion to search is req u i r e d under the administrative search e x ception. See Dono v a n , 4 52 U.S. at 601 (discussing Marshall
, 4 36 U.S. 307, where the Court h eld

a statutory scheme authoriz ing warrantless searches “at

. . . reasonable times, and within reasonable li m i ts and in a

r e asonable manner” inadequate under the administrative search ex ception).

W h ether c onsidered in combination or in isolation, these
two statutes fail to bring this st op and search within the

8 B y s ectio n 7 7 .1 5 .0 9 6 ' s ex p ress lan g u ag e, th is w o u ld req u ire th at A rticle I, sectio n 7 o f th e W ash in g t o n C o n stitu tio n d oes n o t p r o h i b it a

w arran t less search o f a co n t ain er ab o ard an au to m o b ile sto p p ed ab sen t an y

su sp icio n o f w

ro n g d o in g

. T h is state co n stitu tio n al p ro v isio n is m ore p ro tectiv e th an th e Fo u

rth A m en d m en t an d p ro h ib its au to m o b ile sto p s n o t f o u n d ed o n pro b ab l e cau se o r articu lab le su sp icio n o f w ro n g d o in g

. City

o f S ea ttle v. M

esia n i
, 7 5 5 P .2 d 7 7 5
, 7 7 6 (W ash

. 1 9 8 8 ) (en b an c) (h o ld in g

s o b r i ety ch eck

p o in t v io lated W ash in g t o n Co n stitu tio n an d co m

m en tin g th at “ article 1
, s ectio n 7 p ro v id es g reater pro tectio n to in d iv id u al p riv acy in terests th an

th e Fo u rth A m en d m en t”).T A R A B O C H I A V

. A D K

I N S 17

“carefully define d c lass[ ]” of administrative search cases, Ca m a r a , 387 U.S. at 528, let alone ex pressly authoriz e t h e stop and search of a moving automobile.

I nstead of inspecting the Tarabochias’ c atch a nd

c o m mercial fishing records in the field, at a commercial f ishing establishment, or throug h a fish and w ildlif e checkpoint—all of which, both p arties ag re e , would have been authoriz ed u nder Washing ton law—the W DF W officers decided to stop the Tarabochi a s a s they traveled in their pickup truck on a hig h way

. They effectuated this stop despite admittedly lacking an y suspicion o f unlawful behavior o r

s t a t u t o ry authority that would permit this search under the

a d ministrative search ex ception. We hold that, under the s e circumstances, this st o p , and the search that followed, constituted a F ourth Amendment violation.

2. Clearly Established

Althoug h this suspicionless stop and searc h violated the F ourth Amendment, the W DF W o fficers are s t i l l entitled to qualified immunity on this claim i f t he Tarabochias’ rig hts

were not clearly established as of March 23, 2007, the date o f the stop. Pearson , 555 U.S. at 231–32. “The plaintiff bears the burden of proof that the rig h t alleg edly v i o l a ted was clearly established[ .] ” R o mero v. Kitsap Cnty.
, 931 F .2d 624, 627 (9th Cir. 1991). F or a rig ht to be “clearly esta b l ished,” its “contours must be sufficie n t ly clear that a reasonable official w ould u nderstand that” his or her actions violated that rig ht. Hope
, 536 U.S. at 739 (internal qu o t a tion marks omitted). To meet this standard “the very action in q uestion” need not have “previously been h e ld unlawful.” Cha ppell
, 706 F .3d at 1056 (internal quotation marks omitted). This is particularly true in the F ourth Amendment contex t, w here theT A R A B O C H I A V

. A D K

I N S 18

c o nstitutional standard of “reasonableness” demands a fact-specific inquiry

. Mattos v . Agarano , 661 F .3d 433, 442 (9th Cir. 2011). Under this second prong , we therefore consider “whether a reasonable officer would h a ve had f air notice that [ the action] was unlawful[

. ] ” Chappell
, 706 F .3d
at 1056–57 ( internal quotation marks omitted); accor d A.D.

v. Calif. Highway P atrol
, 712 F .3d 446, 454 (9th Cir. 2013).

W e beg in our inquiry “by looking to binding precedent[ ;] [ i] f the righ t i s clearly established by decisional authority o f the Supreme Court or this Circuit, our inquiry should c ome to

an e n d

. ” Boyd v. Benton Cnty.
, 374 F .3d 773, 781 (9th Cir. 2004) (internal citations omitted). I n the absence of binding precedent clearly establishing the constitutional r ig ht, “we look to whatever d ecisional law is available

. . . including decisions o f state courts, other c ircuits, and district courts

. ” Id. (internal quotation marks omitted).

I t was clearly established on the d ate o f the automobile stop at issue here tha t the Tarabochias had a F ourth Amendment rig ht not to be stopped by W DF W officers while driving on a hig hway absent reasonable suspi c i o n the Tarabochias had or were about to eng ag e in unlawful a ctivity

. I n U nited States v

. Munoz
, 7 01 F

. 2d 1 293 (9th Cir. 1983), we held that a roving automobile stop by a n Oreg on Department of F ish and W i l d l i f

e biolog ist and a state g ame trooper of a hunter driving in a national park to check for compliance with woodcutting and hunting reg ulati o n s violated the F ourth Amendment because “[ s] uch investig a tiv e stops must be based on individualiz ed suspicion.” Id. at 1295–1301.

As h ere, the officers in Munoz stopped the plaintiff to

c heck for compliance with applicable g ame reg u lation s a n d they attempted to justify the stop under the F ourthT A R A B O C H I A V

. A D K

I N S 19

Amendment’s administrative search ex ception. Id. at 1295, 1298–1300. I n rejecting this justification, we noted that “[ t] he Supreme Court t

w i c e h as rejected sug g estions that th[ e] implicit c onsent theory [ underly ing the administrative search

ex c e ption] justifies roving stops of motorists.” Id. at 1299.

I n h olding the stop o f Munoz u nconstitutional
, we

ex p licitly relied on t h e s e two prior Supreme Court

cases— Prouse
, 440 U.S. at 663, and Br i g n oni-Ponce
, 422 U .S. at 8 84—where the Court h eld t h at t o conduct a roving automobile stop, o fficials must reasonably suspect the automobile’s occupants of unlawful beh a v ior. Munoz
, 701 F .2d at 1296–1300. A lthoug h the p urpose of the stops in each of these cases varied, we found the sto ps at issue in Pr o u s e and Brignoni-Ponce “indisting uishable” from the s t o p of Munoz “ to check for possible g am e v i o lations.” Id. at 1300. Therefore, as in Prouse an d Brignoni-Ponce
, the suspicionless stop’s intrusion on individual privacy outweig hed the g overnment’s interest, t h ere, in p r eserving animal and plant resources. Id. at 1297–1301.

Prouse
, B rignoni-Ponce
, and Munoz clearly e stablished that kn o wl ed g e that a a utomobile’s occupants a re simply
eng ag ed in—or, have recently been eng ag ed in—a r eg ulated activity is insufficient on its o w n to justify an investig atory automobile stop. See Prouse
, 440 U.S. at 663 (“[ E] x c ept in
t h o se situations in w hich there is a t least

. . . reasonab l e suspicion that a motorist is unlic e n s e d

. . . or that either the automobile or an occupant is otherwise subject to seiz ure for violation of law, stopping a n automobile and detaining the driver

. . . are unreasonable under the F ourth Amendment.”). These cases are supported by a p lethora of other p r e-March 2007 decisions, which p rovided the W DF W officers with “fair notice that [ their action] was unlawful[ .] ” Chappell
, 706T A R A B O C H I A V

. A D K

I N S 20

F .3d at 1056–57; see, e.g. , United States v. Rowland
, 464 F .3d 899, 907 (9th Cir. 2 006) (“An officer may stop a nd question an individual suspected of wrong doing if the officer

can point to ‘specific and a rticulable facts which

. . . reasonably

warrant that intrusion.’”) (quoting Terry v. Ohio
, 392 U.S. 1, 21 (1968)); United States v. Lopez-Soto
, 205 F .3d 1101, 1104–05 (9th Cir. 20 0 0) (ex plaining that reasonable suspicion of unlawful b ehavior is requ i r ed for traffic stops); United S tates v

. Twilley
, 222 F .3d 1092, 1095 (9th Cir. 2 000) (“Under the F ourth Amendment, g overnme n t officials may conduct an investig atory stop of a vehicle only if they possess reasonable suspicion

. . . o f criminal activity .”) (internal quotation marks omitt e d )

. Munoz
, 701 F .2d 1293, clearly

ex tended these F ourth Amendment p r inciples to the acts o f fish a n d w i ldlife officials w hen acting pursuant to fish a nd
g ame laws and reg

ulations. 9

Despite this long line of cases holding that officers must
possess r easonable suspicion of unlawful conduct to stop an automobile and detain its occupants, D e fendants arg ue that this rig ht was not c learly establishe d b e c a u se in Munoz
, the officers “ had no reason to believe” Munoz “ h a d eng ag ed in
any reg ulated activity ” before stopping him whereas, here, the officers knew the Tarabochias had recently enga g ed in fishing

. F or this asser t i o n , Defendants point o ut that the officers in Munoz did not observe the chopped w o o d i n the back of Munoz ’s truck before f lag g ing him d own to stop;

9 T h e d istrict co u rt an d t

h e W DFW o f

f icers relied o n Peo

p le v. Ma ikh io
, 2 5 3 P .3 d 2 4 7 (Cal. 2 0 11 ), a 2 0 1 1 Su p rem e Co u rt o f Calif

o rn ia decisio n , as p ersu asiv e au th o ri t y i n h o ld in g th at t h e rig h t w as n o t clearly estab lish ed

. No t o n ly is M a ikh i o distin g u ish ab le o n its f acts an d larg ely in co n f lict w ith Mu n o z , b u

t it also p o st-d ates th e sto p at issu e h ere. It is th eref o re irrelev an t to th e in q u iry o f w h eth er th e rig h t at issu e w as clearly estab lish ed as o f

th e d ate o f

th e sto p

.T A R A B O C H I A V

. A D K

I N S 21

instead, they notice d t h e w ood “[ a] t the same time [they ] flag g ed” him down. Munoz , 701 F .2d at 1295.

That the officers in Munoz did not see the c hopped wood in Munoz ’s truck before wav i n g h i m down to stop was not

e s sential to our holding

. I nstead, as discussed abo v e , w e relied o n Prouse
, 440 U.S. 648, and Brignoni-Ponce
, 422 U.S. 873, for the propo s i tion that “roving stops made without any reaso n a b le suspicion of c riminal activity
reg arding the vehicle, its o ccupants, or its con t e n t s ” a re unconstitutional. Munoz
, 7 0 1 F .2d at 1297 (emphasis added). Under this reasoning
, since “[ c] a rry ing wood was not illeg al in the park,” id. at 1296 n.7, the officers’ conduct would have still been unconstitutional even i f they had observed the chopped wood before effectuating the stop. I t was the lack o f

re a s o n able suspicion of criminal or other u nlawful a ctivity
, not of reg u lated a ctivity
, that M uno z held e ssential. Therefore, any slig ht factual distinction between the stop a t i s s ue in Munoz a

nd the stop at issue here is “irrelevant

. . . because the c onstitutional rule [ Munoz and other binding precedent] e stablished appl[ ies] with ob v i o us clarity ” to the W D F W officers’ conduct. A.D.
, 712 F .3d at 454 ( internal quotation marks and citation omitted). 1 0

10 A lth o u g h w e n eed n o t lo o k b ey o n d bin d i n g preced en t, Bo yd
, 3 7 4 F.3 d
at 7 8 1
, w e n o te t

h at ev en n o n

- b in d i n g p reced en t clearly estab lish ed th e T arab o ch ias’ Fo u rth A m en d m en t rig h t to b e fr ee f ro m th e su sp icio n less
sto p

. In Th o r

p , 8 5 6 P .2 d 1 1 2 3
, an o f

f icer “ o b serv ed a f

latb ed t ru ck l o ad ed

w ith ced ar blo ck s trav elin g n o rth o n a co u n ty ro ad ,” an d h e sto p p ed th e tru ck “ in o rd er to ascertain w h eth er its d riv er

. . . h ad a sp ecialized f orest p ro d u cts p erm it.” Id

. at 1 1 2 4 . A s in th e T arab o ch ias’ case, th e o f f icer’ s k n o w l ed g e t

h at T h o rp h ad en g ag ed in a reg u lated activ ity —ev id en ced b y th e v isib le ced ar blo ck s in h is tru ck —m o tiv ated th e sto p. Id

. T h e o f f icer lack ed an y “ articu lab le su sp icio n ” b ef o re sto p p in g T h o rp , an d th e o f f icer

co n ten d ed th at h e h ad au th o rity to co n d u ct t h e su sp icio n less sto p b ecau s eT A R A B O C H I A V

. A D K

I N S 22

F inally
, “a reasonable officer would [ have] recog niz e[ d] ”
t h a t the suspicionless stop of the Tarabochias’ automobi l e

ex c e eded the bounds of the statutes Defendants purportedly relied on. Grossman v. City of Portland
, 33 F .3d 1200, 1210 (9th Cir. 1994). As dis c u s s ed above, supra Part I I I .A.1, neither section 77.15.080(1) nor section 77.15.096 mentions stopping or searching automobiles. 1 1 Unlike thes e p r o v isions, there are other provisions a lso within W ashing ton’s F ish a nd W ildlife Enforcement Code that ex plicitly apply to stops a nd searches of a u t omobiles and, importantly
, these statutes carefully limit W DF W o fficers’ a uthority to conduct such stops and searches.

F or ex am p l e, section 77.15.094 ex plicitly a uthoriz e s W D F W o f

ficers to search “ v ehicles” without a warrant, but

th e f o rest pro d u cts in d u stry i s “p e r v asiv ely reg u lated .” Id

. at 1 1 2 4

– 2 5

. T h e co u rt rej ected th is a rg u m en t an d d eterm in ed th at “ ev en if th e f orest p ro d u cts in d u stry w ere perv asiv ely reg u lated
, th e Fo u rth A m e n d m e n t stan d ard s ap p licab le to su ch in d u stries w o u ld n o t allo w th e p olice to

ran d o m ly sto p a m o v in g v eh icle w ith o u t

. . . articu lab le su sp icio n .” Id

. at 1 1 2 5

. Rely i n g e x p l i c i t ly o n Pro u s e , 4 4 0 U.S. 6 4 8
, Brig no n i-Po n ce , 4 2 2 U.S. 8 7 3
, an d Mu no z , 7 0 1 F.2 d 1 2 9 3
, th e co u rt h eld th at th e sto p w as

“ g o v ern ed b y th e Fo u rth A m en d m en t p rin cip l es th at o rd in arily ap p ly to traf f i c sto p s” an d th at it w as th eref o re u n c o n stitu

tio n al u n d er b oth th e Un i ted States an d W ash in g t o n C o n stitu tio n s. Id

. at 1 1 2 6

– 27

. Th o rp ’ s f acts an d co n stitu

tio n al h o ld i n g are d irect l y ap p licab le t o t h e W DFW

o f f icers’ co n d u ct.

11 Def en dan ts arg u e th at Sch leg el v. Dep a rtmen t o f Licen sin g , 1 5 3 P .3 d 2 4 4 (W ash

. Ct. A

p p

. 2 0 0 7 ), a p re- March 2 0 0 7 d ecisio n , ren d ers th e sto p at issu e h ere law f

u l u n d er sectio n 7 7 .1 5 .0 8 0(1 ). A lth o u g h S ch leg el h eld th at sectio n 7 7

. 1 5

. 0 8 0 (1 ) au th o rized a s to p b y a W DFW o f f icer o f a h u n ter’ s au t o m ob ile o n a “ h u n tin g ro ad ,” it d id so w ith in th e co n tex t o f a ch eck p o in t lim i ted to sto ps o f p erso n s “ en g ag ed in h u n tin g ” w h ile in th eir

au to m o b ile an d ex p licitly lim ited its h old in g to th is f actu al scen ario

. Id

. at 2 4 5

– 4 7. S

ch l eg el th eref o re d o es n o t

alter o u r an aly sis.T A R A B O C H I A V

. A D K

I N S 23

only where officers have “ reason to belie v e ” t he vehicle contains “evidence of a violation o f ” fish and g ame laws o r reg ulations. W ash. Rev. Code § 77.15.094 ( 2 0 0 1 )

. The W D F W officers admit th ey lacked any “reason to b elieve” the salmon aboard the Ta r a bochias’ truck was “evidence o f

a violation.” W DF W officers also have authority “to require

. . . fishers occupy

ing a motor vehicle a

pproaching or entering

a check station to stop and produce for inspection

. . . [a] n y wildlife, fish, shellfish, or seaweed in their possession,” and “licenses, permits, tag s, stamps, or c atch record cards[ .] ” W a sh. Rev. Code § 77.12.620. These “check station[ s] ” must be clea rly marked, id.
, and cannot be established “upon i n t e rstate hig hway s or state routes.” W ash. Rev. Code § 77.15.470(3) (2000).

Thus, “ it shou l d h a v e been readily apparent to a reasonable officer” that neither section 77.15.080(1) nor section 77.15.096 authoriz ed the suspicionles s roving stop, and the subsequent search, of the Taraboch ias’ pickup truck

as they dr o v e on a h ig hway and public road. Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep' t , 533 F .3d 780, 798 ( 9th Cir. 2008)); a ccord Grossman
, 33 F .3d at 1210 (An officer who enforces an ordinance “in a manner which a reasonable officer would recog niz e ex c eeds the bounds of the ordinance, will not be entitled to [ q ualified] immunity [ .] ” ).

F or these reasons, w e hold that the suspicionless stop a nd search of the Tarabochias’ a utom obile violated “ clearly established

. . . constitutional rig h ts of wh i c h a reasonable
person would hav e known.” Chappell
, 706 F

. 3d at 1056. Officers Michael Cenci a

nd Dan Chadwick are therefore not entitled to q

ualified immunity on the Tarabochias’ Fo u r t h Amendment claim.T A R A B O C H I A V

. A D K

I N S 24

B. F ourteenth Am endm ent Claim

W e now turn to the summary judg ment dismiss a l o f the Tarabochias’ F ourteenth A m e n d m e n t s u b s tantive due process claim. The district court dismissed this claim based on its assumption that the March 2 3, 2007, stop must be analy z ed

ex c lusively under the F o urth Amendmen t and, absent this incident, all remaining alleg ed incidents f all outside the applicable statute of limitations. 1 2 Althoug h the district court did not ex pressly analy

z e whether the March 23, 2 0 0 7, stop could arise und e r b oth the F ourteenth and F ourth Amendments, we ag ree w ith its ultimate c onclusion that it
cannot. 1 3

1 2 Co n trary to D ef

en d an ts’ su g g estio n , th is arg u m en t is n o t w aiv ed du e to th e T arab o ch ias’ f

ailu re to resp o n d t o th eir su m m ary j u d g m en t m o tio n

as “ ev en if a p arty f

ails to raise an issu e i n th e d istrict co u rt, w e g en erally

w ill n o t d eem th e issu e w aiv ed if th e district co u rt actu ally co n sid ered it.” Cmty. Ho use, In c. v. City o f Bo ise
, 49 0 F.3 d 1 04 1
, 1 0 54 (9 th C ir. 20 0 6) (citin g Ha rrell v. 2 0 th Cen t u r y In s. Co

. , 9 3 4 F.2 d 2 0 3
, 20 5 n .1 (9 th Cir. 1 9 9 1 ). T h e d istrict co u rt actu ally co n sid ered w h eth er th e March 23
, 2 0 0 7
, in cid en t co u ld f

o rm a basis f

o r th e Fo u rteen th A m en d m en t c laim

. T h eref ore, w e w i ll n o t d eem

th is issu e w aiv ed

.

13 On ap peal, th e T arab o ch ias arg u e f or th e f i rst tim e th at th e co n t in

u in g

v io latio n s d o ctrin e ren d ers t h e in cid en ts o ccu rrin g p rio r to th e lim itatio n s p erio d
, in co n

j u n ctio n w ith t

h e March 23
, 2 0 0 7
, sto p , actio n ab le u n der th e F o u r t e en th A m en d m en t. U n l ik e w h eth er th e T arab o ch ias’ alleg ed th e March 2 3
, 2 0 0 7
, sto p as a f actu al b a s i s f

o r t h e Fo u rteen t

h A m en d m en t claim
, th e reco rd d o es n o t i n d icate th at th e d is t r i c t co u rt ev er “ actu ally

co n sid ered ,” Cmty. Ho use, In c. , 4 9 0 F.3 d at 1 05 4
, th e ap p licab ility o f th e

co n tin u in g v io latio n s d o ctrin e to th e rem ain in g in cid en ts w h en f aced w i th Def en d an t s ’ s u m

m ary j u d g m en t m o tio n s. A s a resu lt, th is arg u m en t is

w aiv ed

. Alexo

p u l o s b y Alexo pu lo s v. Riles
, 7 8 4 F .2 d 1 4 0 8
, 1 4 1 1 (9 th Cir. 1 9 8 6 ) (statu

te o f lim itatio n to llin g arg u m en t w aiv ed o n ap p eal b e c a use A p pellan t s h ad n o t raised it b ef o re th e district co u rt). Ev en if w e w ere to

c o n sid er th i s arg u m en t, w e f in d th e co n tin

u in g v i o latio n s d o ctrin eT A R A B O C H I A V

. A D K

I N S 25

The Supreme Court has instructed that “[ w ] here a particular Amendment provides an ex plicit tex tual source o f constitutional protection ag ainst a particu l a r sort o f
g overnment behavior, that Amendment, not the more g eneraliz ed notion of substantive due process, must b e the
g uide for analy

z ing these claims

. ” Albright v. Oliver
, 510 U.S. 266, 273 (1 9 94) (quoting Graham v. Connor
, 490 U .S. 386, 395 (1989)) (plurality opinion of Re h n q uist, C.J .) (internal q u o tation marks omitted). The F ourth Am e n d m e nt ex plicitly protects ag ainst unreasonable “searches and seiz u res” w hereas the F ourteenth A mendment due process clause protects ag ainst official b ehavior that “shocks the conscience.” Fontana v. H askin
, 2 62 F .3d 871, 881 (9th Cir. 2 001). B ecause the actionable incident h ere, the March 2 3
, 2007, stop, “constitutes a ‘seiz ure’ of ‘persons’” under the F ourth Amendment, W hren
, 5 1 7 U

. S

. at 809, it is properly analy

z ed ex clusively u n d er this constitutional provision and not under the broader c onc e p t o f substantive due process. Compare Fontana
, 2 62 F .3d at 880–82 (holding that, althoug h “[ s] ex u al misconduct by a p o l ice o fficer” is often a naly z ed under the F ourteenth Amendment, appellant’s cl a i m i s properly broug ht ex clusively under the F ourth Amendment since she had been “ seiz ed” by the police), with Cnty. of Sacramento v. Lewis
, 5 23 U.S. 8 33, 836, 843 (1998) (holding that a c l a i m stemming f rom a hig h -speed police

in ap p licab le sin ce th e T arab o ch ias’ claim s are b ased o n “ d iscrete acts, each o f w

h ich is actio n ab le o n its o w n .” RK Ven tu res, In c. v. City o f S ea ttle
, 3 0 7 F.3 d 1 0 4 5
, 1 0 6 1 n

. 1 3 (9 th Cir. 20 0 2 ). A cco rd in g ly
, th ese

“ acts are n o t actio n ab l e if ti m e b a r red
, ev en [if ] th ey are related to ” th e March 2 3
, 2 0 0 7
, s t o p

. Na t'l R.R. Pa ssen g er C o rp

. v. Mo rg a n , 5 3 6 U .S. 1 0 1
, 1 1 3 (2 0 0 2 ). A lth o u g h th e p re- March 2 0 0 7 in cid en ts co u ld still b e

co n sid er e d “ a s e v id en ce o f an u n co n stitu tio n al m o tiv e,” RK Ven tu res, In c. , 3 0 7 F.3 d at 1 06 2
, t h i s w o u l d still leav e th e March 2 3
, 2 0 0 7
, sto p as th e

o n ly b asis f o r liab ility

.T A R A B O C H I A V

. A D K

I N S 26

chase arose under the F ourtee n t h A mendment due process rubric, not the F ourth Amendment, since the conduct at issue did not constitute a “search” or “seiz ure”). 1 4

The district c ourt therefore properly dismiss e d t he Tarabochias’ substantive due process claim because, without the March 23, 2007, stop, the claim is untimely

.

IV. CONCLUSION

W e recog n iz e th e importance of W ashing ton state’s interest in promoting the conservation of its fishery a nd its ability to closely

reg ulate the c ommercial fishing industry in

a m an ner to further this interest, including by statutori l y authoriz ing tailored warrantless administrative searches. However, the W DF W officers d id not conduct their suspicionless stop and search of the Tarabochias’ automobile pursuant to any statutory a uthority

. Such suspicionless automobile searches and seiz ures of commer c ial fishers, absent ex p ress statutory authoriz ation, subject them to “unfettered g overnmental intrusion,” Prouse
, 440 U

. S. at 663—the principal evil ag ainst which the F ourth A mendment protects.

I n lig ht of the foreg oing
, we affirm the g rant of summary judg ment a s to Officers Hopkins and Rhoden, and reverse the
g rant of qualified immunity to Officers Michae l C en c i a nd Dan Chadwick and the related summary judg ment dismissal of the Ta ra b o c hias’ F ourth A mendment claim. W e remand

1 4 T h e T arab o ch ias’ relian ce o n A.D. , 7 1 2 F.3 d 4 4 6
, i n su p p o rt o f th eir
arg u m en t th at th e March 2 0 07 sto p can b e an aly zed u n d er b o th th e Fo u rth

an d Fo u rteen th A m en d m en ts is m isp laced

. Un lik e in Fo n ta n a , 2 6 2 F.3 d 8 7 1
, in A.D. w e h ad n o o ccasio n to co n sid er th e q u estio n

n ow b ef o re u s.T A R A B O C H I A V

. A D K

I N S 27

for further proceeding s on this claim. F inally
, we affirm the dismissal o f the Tarabochias’ F o urteenth A mendment substantive due process claim.

R E V ERSED in part, AF F IRMED in part, and REMANDED. Costs on appeal to Appellants.