Chad Bock v. State of Washington ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHAD BOCK, a single man; NATHAN No. 21-35182
BOCK,
Plaintiffs-Appellants, D.C. No.
2:19-cv-00308-
v. SAB
STATE OF WASHINGTON;
WASHINGTON DEPARTMENT OF FISH OPINION
AND WILDLIFE; JOLYNN
BEAUCHENE, WDFW Officer; MIKE
SPRECHER, WDFW Sargent; DAN
RAHN, WDFW Captain; JESSE
JONES,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, Chief District Judge, Presiding
Argued and Submitted December 9, 2021
Seattle, Washington
Filed May 9, 2022
2 BOCK V. STATE OF WASHINGTON
Before: M. Margaret McKeown and Bridget S. Bade,
Circuit Judges, and Sidney A. Fitzwater, * District Judge.
Opinion by Judge McKeown
SUMMARY **
Civil Rights
The panel dismissed a due process claim as moot and
affirmed the district court’s entry of judgment with respect
to the constitutionality of Washington State’s forfeiture
statute in an action arising from unlawful hunting in British
Columbia that led authorities in Washington to seize almost
$200,000 worth of wildlife and animal parts from plaintiffs
and to charge them with illegal possession of these parts.
After the Spokane County prosecutor filed charges
against plaintiffs pursuant to Wash. Rev. Code § 77.15.265,
plaintiffs entered into a Stipulation to Police Reports and
Order of Continuance (“SOC”), which provided that the
charges would be dismissed if plaintiffs complied with
certain terms, including waiving the right to contest the
evidence against them. Under Washington’s wildlife
forfeiture statute, the entry of an SOC also resulted in the
forfeiture of the wildlife and animal parts at issue. Plaintiffs
successfully completed their SOCs, and the charges against
The Honorable Sidney A. Fitzwater, United States District Judge
*
for the Northern District of Texas, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BOCK V. STATE OF WASHINGTON 3
them were dismissed. They brought suit alleging that the
forfeiture and transfer of their property to Canada, without
notice or a hearing, functionally destroyed their property
interests, thus depriving them of due process. The district
court rejected plaintiffs’ arguments that the automatic
forfeiture statute was unconstitutional as applied to wildlife
taken outside of Washington or that the statute
unconstitutionally deprived plaintiffs of property without
notice of a hearing.
The panel held that because plaintiffs signed the SOCs,
which triggered the automatic forfeiture, their suit for
recovery of the forfeited property was moot. To the extent
plaintiffs’ constitutional claims hinged on their argument
that the seized property was not contraband, these claims
were also mooted by the plaintiffs’ agreement to forfeiture.
In the alternative, plaintiffs’ suit would also fail on standing
grounds. Even if plaintiffs had a property interest in the
seized wildlife parts protected by the Fourteenth
Amendment at the time the parts were transferred, they gave
up that interest by agreeing to the ultimate forfeiture of the
items to the state; plaintiffs therefore could not maintain a
concrete injury as a result of the transfer to British Columbia.
The panel rejected plaintiffs’ argument that
Washington’s wildlife forfeiture statute was
unconstitutional. The panel concluded that, while the
existence of a state law authorizing a seizure does not
immunize that seizure from constitutional scrutiny, plaintiffs
were estopped from raising this argument. In signing the
SOCs, plaintiffs agreed to the statutorily mandated
consequence of forfeiture of the seized materials, pursuant
to Wash. Rev. Code § 77.15.100(3).
4 BOCK V. STATE OF WASHINGTON
COUNSEL
Breean L. Beggs (argued), Paukert & Troppmann PLLC,
Spokane, Washington; Morgan C. Maxey and Mark J.
Harris, Maxey Law Offices PLLC, Spokane, Washington;
for Plaintiffs-Appellants.
Alicia Orlena Young (argued) and Katie Merrill, Assistant
Attorneys General; Robert W. Ferguson, Attorney General;
Office of the Attorney General, Olympia, Washington; for
Defendants-Appellees State of Washington, Washington
Department of Fish and Wildlife, Jolynn Beauchene, Mike
Sprecher, and Dan Rahn.
Paul Gill, HPG PLLC, Seattle, Washington, for Defendant-
Appellee Jesse Jones.
OPINION
McKEOWN, Circuit Judge:
This case arises from unlawful hunting in British
Columbia that led authorities in Washington State to seize
almost $200,000 worth of wildlife and animal parts from two
Washington residents and charge them with illegal
possession of these parts. The Washington authorities
transferred this property to their counterparts in British
Columbia. The putative property owners claim that this
transfer functionally destroyed their property interests, thus
depriving them of due process. Although this scenario
presents an issue of first impression, we dismiss this portion
of the claim because it is moot. We also affirm the district
court’s entry of judgment with respect to the
constitutionality of Washington’s forfeiture statute.
BOCK V. STATE OF WASHINGTON 5
BACKGROUND
Two brothers—Chad Bock (“Chad”) and Nathan Bock
(“Nathan”) (collectively “the Bocks”), United States citizens
and residents of Washington State—became embroiled in a
dispute with the authorities of Washington and British
Columbia. In October 2014, British Columbia Conservation
Officer Jesse Jones stopped the Bocks for a wildlife
inspection, after observing moose antlers displayed in their
vehicle. During this inspection, Nathan presented a British
Columbia resident hunter license, and Chad presented a
British Columbia non-resident accompanied hunt permit
(obtained for him by Nathan). Officer Jones ultimately
issued the Bocks warnings for failure to leave evidence of
gender attached to the meat.
But Officer Jones was suspicious of Nathan’s resident
hunter status and so commenced an investigation. The
investigation revealed that, to obtain the relevant hunting
number, licenses, permits, and tags, Nathan had used non-
existent or inaccurate residences and addresses. In 2016,
Officer Jones shared the results of his investigation with the
Washington Department of Fish and Wildlife (“the
Department”), which launched its own investigation into the
Bocks and ultimately assigned the inquiry to Officer JoLynn
Beauchene. Officer Beauchene discovered that Nathan and
Chad had unlawfully imported multiple animals by failing to
properly document or disclose them at the border, and by not
having the proper permit.
Based on these findings, Officer Beauchene obtained
search warrants for the Bocks’ individual residences in
Spokane County, Washington. Accompanied by her
colleagues, Officer Beauchene seized as evidence numerous
items from the residences, including hunting trophies,
animal meat, and taxidermized animals. Following the
6 BOCK V. STATE OF WASHINGTON
seizure, Officer Jones—who was present during the seizure
at the invitation of the Department—identified the wildlife
and animal parts that had been taken in Canada.
Days later, and with the permission of the U.S. Fish &
Wildlife Service as well as her superiors in the Department,
Officer Beauchene transferred these wildlife and animal
parts to Officer Jones in British Columbia. As the district
court summarized, “[t]his transfer served a twofold purpose:
(1) storage (i.e., because British Columbia had larger
facilities to accommodate the seized items) and (2) potential
use as evidence (i.e., because it seemed likely that British
Columbia would be the first to refer the investigation for
prosecution).” The Department also transferred documents
and electronic storage devices seized from the Bocks’
residences to British Columbia, although these were
returned to the Department months later, after British
Columbia failed to file charges against the Bocks before the
statute of limitations had run. The Bocks claim that they
received no notice of the transfer of their property to Canada
(either from Washington or British Columbia officials).
In 2018, the Spokane County prosecutor filed charges
against Chad and Nathan for violating Wash. Rev. Code
§ 77.15.265, which forbids the possession of wildlife that the
defendant knows was taken in another country in violation
of that country’s laws or regulations relating to matters such
as licenses or tags. Nathan and Chad each entered into a
Stipulation to Police Reports and Order of Continuance
(“SOC”), which continued their cases in pre-trial status for
one year, after which the prosecutor would dismiss the
charges if the Bocks complied with certain terms of the
agreements.
In the SOCs, the Bocks waived a number of rights,
including the right to contest the evidence against them.
BOCK V. STATE OF WASHINGTON 7
Under the statute, the entry of an SOC also results in the
forfeiture of the wildlife and animal parts at issue. Id.§ 77.15.100(3) (2018) (wildlife taken or possessed in
violation of state law “shall be forfeited to the state” when
“a person voluntarily enters into a disposition that continues
or defers the case for dismissal upon the successful
completion of specific terms or conditions”) (emphasis
added).
The Bocks successfully completed their SOCs, and the
charges against them were dismissed in October 2019.
Several months before this dismissal, however, they filed
suit against the Department, the State of Washington, Officer
Beauchene, two of her superiors, and Officer Jones
(collectively “the Officials”). Their claims all centered on
the Department’s transfer of the wildlife and animal parts to
the Canadian authorities. The claims included violation of
the Fourth, Fifth, 1 and Eighth Amendments; supervisory
liability; civil conspiracy; a writ of replevin; a return of
property; and, in an amended complaint, state law claims for
tortious conversion and negligence/tortious conduct. The
Bocks sought a variety of forms of relief, including
compensatory, special, punitive, and exemplary damages;
attorney’s fees and costs; and the return of all property seized
from their residences. The estimated value of the wildlife
and animal parts is at least $192,000.
Shortly after the case was properly removed to federal
court, the Bocks completed their SOCs and the charges
against them were dismissed. The Officials have aptly noted
that the Bocks brought suit rather than “withdraw their SOCs
and contest the statutorily mandated forfeiture.” The
1
The Bocks’ appellate briefs invoke the Fourteenth, rather the Fifth,
Amendment.
8 BOCK V. STATE OF WASHINGTON
Officials argued that the Bocks should be estopped from
bringing their claims, as their decision to voluntarily enter
into the SOC waived their right to challenge the automatic
forfeiture of the wildlife and animal parts—and, further, the
Washington statute and its application to the Bocks were
constitutional. In response, the Bocks made two
constitutional arguments. First, they claimed that the
Washington statute is unconstitutional when applied to
wildlife taken outside of Washington (and, further, that when
the Department transferred the wildlife and animal parts to
British Columbia, the parts ceased to be evidence and thus
subject to automatic forfeiture). Second, they claimed that,
by transferring the wildlife and animal parts to British
Columbia, the Department unconstitutionally deprived the
Bocks of property without notice or a hearing and
unconstitutionally deprived them of a remedy by divesting
the state court of in rem jurisdiction over the parts.
On cross-motions for summary judgment, the district
court granted the Officials’ motion and denied the Bocks’
motion. The district court noted that Washington law
“explicitly makes it a state law crime to take wildlife from
another country in violation of that country’s laws,”
rejecting the Bocks’ argument that the automatic forfeiture
statute is unconstitutional as applied to wildlife taken outside
of Washington. The district court likewise rejected the
argument that the automatic forfeiture statute
unconstitutionally deprived them of property without notice
or a hearing, noting that automatic forfeiture “only kicks in
if the party enters into an SOC.” The district court further
reasoned that, if the party chooses to go forward with the
prosecution, they do not waive their rights and they retain
the opportunity for notice, hearing, determination of guilt,
and return of the seized evidence. The district court noted
that the Bocks, with the advice of counsel, signed the SOCs,
BOCK V. STATE OF WASHINGTON 9
the completion of which triggered the forfeiture. Because
the district court could “dispose of the motion on the grounds
of automatic forfeiture,” it did not “find it necessary to
address the parties’ other arguments.” As a result, the
district court entered judgment in favor of the Officials.
ANALYSIS
I. MOOTNESS
The first issue before us is whether the Officials
abrogated the Bocks’ due process rights by transferring the
wildlife and animal parts to British Columbia in 2016,
without notice or a hearing. We conclude that the Bocks’
challenge is moot and therefore do not address the merits of
their argument. See W. Addition Cmty. Org. v. Alioto,
514 F.2d 542, 544 n.2 (9th Cir. 1975) (stating that “we are
obligated to consider the question of mootness” because a
“finding of mootness . . . deprive[s] our court of jurisdiction,
there no longer being an actual case or controversy” (internal
quotation marks omitted)).
The Fourteenth Amendment provides that a state cannot
“deprive any person of … property[] without due process of
law.” U.S. Const. amend. XIV. “[O]ne of due process’s
central and undisputed guarantees is that, before the
government permanently deprives a person of a property
interest, that person will receive—at a minimum—notice.”
Wright v. Beck, 981 F.3d 719, 727 (9th Cir. 2020). Even if
the state has seized a person’s property in full accordance
with the law, it cannot “destroy a property interest without
first giving the putative owner an opportunity to present his
claim of entitlement.” Lavan v. City of Los Angeles,
693 F.3d 1022, 1032 (9th Cir. 2012) (quoting Logan v.
Zimmerman Brush Co., 455 U.S. 422, 434 (1982)).
10 BOCK V. STATE OF WASHINGTON
The inquiry here is whether Washington’s 2016 transfer
of the wildlife and animal parts to Canada violated the
Bocks’ due process rights. This question—whether the
transfer of property outside of U.S. jurisdiction, without
notice and while the legal ownership of that property is still
in dispute, abrogates due process—is a matter of first
impression in this circuit. The Bocks maintain that the
transfer itself was equivalent to the destruction of their
property interest because the state placed the wildlife and
animal parts beyond the jurisdiction of the Washington
courts. That is, because the Washington authorities cannot
guarantee the return of the property from Canada, the
Bocks’ property interest was functionally extinguished.
Nonetheless, this argument must fall on mootness
grounds. “In general a case becomes moot when the issues
presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” Murphy v. Hunt,
455 U.S. 478, 481 (1982) (internal quotation marks
omitted). We have held that where a “stipulation had the
effect of disposing of all” of the property at issue, the claims
for a return of property or seized assets are moot. United
States v. Pemberton, 852 F.2d 1241, 1243 (9th Cir. 1988)
(per curiam). The court in Pemberton concluded that “when
Pemberton agreed to forfeiture, he relinquished his claim for
a release of assets” from the forfeited funds. Id. (citing
United States v. Fischer, 833 F.2d 647, 648–49 (7th Cir.
1987)). Likewise, because the Bocks signed the SOCs,
which triggered the automatic forfeiture, their suit for
recovery of the forfeited property is moot. To the extent the
Bocks’ constitutional claims hinge on their argument that the
seized property was not contraband, these claims are also
mooted by the Bocks’ agreement to forfeiture. See United
States v. Rutledge, 448 F.3d 1080, 1081 (9th Cir. 2006)
(dismissing appeal as moot and withdrawing opinion
BOCK V. STATE OF WASHINGTON 11
because a ruling that assets “were not subject to criminal
forfeiture” “addressed a controversy between the parties that
no longer existed” after the parties entered into an
intervening plea agreement).
In the alternative, the Bocks’ suit would also fall on
standing grounds. The Bocks assert a risk of future harm
(i.e., if they vindicate their property rights, the Washington
authorities might not be able to get the property back from
Canada), yet the Supreme Court is clear that where a risk of
future harm has not yet materialized, the “plaintiffs’
argument for standing for their damages claims based on an
asserted risk of future harm is unavailing.” TransUnion LLC
v. Ramirez, 141 S. Ct. 2190, 2211 (2021). Even if the Bocks
had a property interest in the seized wildlife parts protected
by the Fourteenth Amendment at the time the parts were
transferred, the Bocks gave up that interest by agreeing to
the ultimate forfeiture of the items to the state; the Bocks
therefore cannot maintain a concrete injury as a result of the
transfer to British Columbia. See Spokeo, Inc. v. Robins,
578 U.S. 330, 340 (2016) (holding that a “bare procedural
violation, divorced from any concrete harm” does not
“satisfy the injury-in-fact requirement of Article III”).
II. JUDICIAL ESTOPPEL
The Bocks also argue that Washington’s wildlife
forfeiture statute, Wash. Rev. Code § 77.15.100(3), is
unconstitutional on its face and as applied against them. We
conclude that, while the existence of a state law authorizing
a seizure does not immunize that seizure from constitutional
scrutiny, see Sibron v. New York, 392 U.S. 40, 61 (1968), the
Bocks are estopped from raising this argument.
When “a party assumes a certain position in a legal
proceeding, and succeeds in maintaining that position, he
12 BOCK V. STATE OF WASHINGTON
may not thereafter, simply because his interests have
changed, assume a contrary position.” New Hampshire v.
Maine, 532 U.S. 742, 749 (2001) (internal quotation marks
omitted). The Supreme Court has identified three non-
exclusive factors that should “inform” a court’s decision to
apply judicial estoppel: (1) “a party’s later position must be
‘clearly inconsistent’ with its earlier position”; (2) “the party
has succeeded in persuading a court to accept that party’s
earlier position,” such that judicial acceptance of an
inconsistent position would create the perception that one
court was misled; and (3) “the party seeking to assert an
inconsistent position would derive an unfair advantage or
impose an unfair detriment on the opposing party if not
estopped.” Id. at 750–51 (internal quotation marks and
citations omitted).
Per their SOCs, the Bocks were charged with “unlawful
possession of wildlife in violation of another country’s or
state’s laws.” Successful completion of the SOC resulted in
automatic forfeiture of the wildlife at issue. Wash. Rev.
Code § 77.15.100(3). In signing these SOCs, the Bocks
agreed to the statutorily mandated consequence of forfeiture
of the seized materials, pursuant to section 77.15.100(3).
Attempting to avoid this consequence would be “clearly
inconsistent” with the SOCs; would certainly create the
impression that the first court was misled; and would endow
the Bocks with a significant unfair advantage. As the district
court found, the Bocks are estopped from taking positions
inconsistent with the SOCs.
The Bocks attempt to save their constitutional claim by
arguing that they did not “knowingly and voluntarily” waive
their right to challenge the forfeiture, in particular, when
they entered into the SOC. This too must fail. So long as a
claimant is given notice of the seizure of property pursuant
BOCK V. STATE OF WASHINGTON 13
to a search warrant, the state has fulfilled its due process
obligations, for the claimant “can turn to . . . public sources
to learn about the remedial procedures available to him.”
City of West Covina v. Perkins, 525 U.S. 234, 240–41
(1999). The state need not undertake any other steps or
engage in “individualized notice.” Id. at 241. Notably, the
trial court repeatedly asked the Bocks to confirm that their
consent to the terms of the SOCs was knowing and
voluntary, and with the advice of counsel—which they did.
Cf. United States v. Delgado-Ramos, 635 F.3d 1237, 1239
(9th Cir. 2011) (entry of a disposition can be voluntary “even
‘if the defendant did not correctly assess every relevant
factor entering into his decision’”). Even the last page of the
Bocks’ motion for summary judgment concedes that they
“might have been on notice.” 2
III. QUALIFIED IMMUNITY
The Bocks only argue on appeal that the defendants are
liable under the Fourteenth Amendment for violating their
constitutional rights. Without an actionable constitutional
claim, the Bocks’ arguments with respect to liability and
As a technical matter, even assuming that only the as-applied
2
constitutional challenge is estopped by the SOCs, the Bocks’ completion
of the SOCs nonetheless deprived them of standing to bring a facial
constitutional challenge. A facial challenge to a statute requires a
plaintiff to “show that he has sustained or is immediately in danger of
sustaining some direct injury as the result of the challenged official
conduct and the injury or threat of injury must be both real and
immediate, not conjectural or hypothetical.” 4805 Convoy, Inc. v. City
of San Diego, 183 F.3d 1108, 1111–12 (9th Cir. 1999) (internal quotation
marks omitted). Because the Bocks agreed to statutory forfeiture by
completing the SOCs, they have not sustained and are not in danger of
sustaining a direct injury resulting from the forfeiture statute.
14 BOCK V. STATE OF WASHINGTON
qualified immunity also fail. 3 Pearson v. Callahan, 555 U.S.
223, 231 (2009) (“[Q]ualified immunity protects
government officials from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.” (internal quotation marks omitted)).
DISMISSED IN PART AND AFFIRMED IN PART.
3
We decline to address the Bocks’ conclusory assertion that the
district court’s judgment should be reversed with respect to Officer Jones
because he did not file or join in the motion for summary judgment. The
Bocks waived this issue by failing to argue it “specifically and
distinctly.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,
919 (9th Cir. 2001).