Dillberg v. County of Kitsap

Citation: 76 F. App'x 792Docket: No. 02-35565; D.C. No. CV-01-05064-JKA

Court: Court of Appeals for the Ninth Circuit; September 12, 2003; Federal Appellate Court

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Nebs DiHberg was arrested for attempted solicitation of murder, a charge later dropped by the state Superior Court due to its non-existence in Washington law. DiHberg subsequently filed a lawsuit against the Defendants under 42 U.S.C. § 1983 and state law. The case was referred to a magistrate judge, who granted summary judgment for the Defendants. DiHberg appealed, and the court affirmed the decision, albeit for different reasons than those articulated by the district court.

The court applied a de novo review standard, considering evidence in favor of DiHberg. It found that while Defendants Casad and George had absolute immunity for recommending a bail amount of $500,000, they did not have such immunity for advising Deputy Zude about the arrest concerning attempted solicitation of murder, as this legal advice directly led to the arrest. The court referenced prior rulings that distinguish between prosecutorial functions and providing legal advice to police.

Regarding federal qualified immunity, the individual county defendants were protected unless their actions violated clearly established rights. The court determined that the arrest for attempted solicitation of murder did not violate DiHberg's constitutional rights because probable cause for felony harassment existed, which is a closely related offense. However, the court also concluded that DiHberg's 75-day incarceration, following the charge of a non-existent offense, violated his constitutional rights, as the Defendants did not provide authority to justify the legality of continued incarceration under these circumstances.

Qualified immunity applies to Dillberg’s case because his right not to be prosecuted for attempted solicitation of murder was not clearly established. The Washington Revised Code specifies only three anticipatory offenses—attempt, solicitation, and conspiracy—without explicitly stating a legislative intent against criminalizing attempted solicitation. Attempted solicitation could reasonably be interpreted as an attempt to commit murder solicitation, despite potential stacking of offenses. Dillberg did not identify any statute that prohibits such stacking, and the state court found the interpretation of anticipatory offense statutes by Casad and George to be reasonable and ambiguous.

Furthermore, the statutory definition of "solicitation," which requires payment or an offer of payment as an element, does not indicate that separate offenses, like attempted solicitation, are precluded. The varying interpretations of anticipatory offenses in other states further support that Dillberg's right was not clearly established.

Regarding state qualified immunity, the individual county defendants are immune from state law claims as they acted in accordance with statutory duties without violating procedures. They believed, reasonably, that attempted solicitation of murder constituted a crime and had no knowledge of any invalidity regarding stacking offenses. Their good faith belief in Dillberg's commission of a felony justifies their qualified immunity for his warrantless arrest.

Municipal liability under Section 1983 requires an official municipal policy to have caused a constitutional tort. Since there was no constitutional violation related to Dillberg’s arrest and no evidence of a longstanding practice leading to a violation during his post-arraignment incarceration, there is no municipal liability.

Dillberg's evidence for municipal policy or custom is based solely on the absence of corrective action against individual county defendants for their alleged misconduct. While this could suggest municipal liability in certain cases, it is distinguishable from precedents like *Gomez v. Vernon* and *Larez v. City of Los Angeles*, which involved multiple known constitutional violations that were unaddressed. In Dillberg's case, there was only a single incident involving the first-ever arrest in Washington for attempted solicitation. Citing *Christie*, a single constitutional deprivation is generally insufficient to prove a longstanding practice or custom.

Ruggenberg is not liable under 42 U.S.C. § 1983 as she did not act "under color of state law," serving only as a complaining witness without engaging in joint action with a state actor, as established in *Collins v. Womancare*. She is also entitled to summary judgment for the false arrest claim because, prior to the arrest decision, she merely presented her account of the facts to Deputy Zude without requesting Dillberg's arrest. Her later request for arrest came only after the decision to arrest had already been made by Sgt. Sipple.

The court affirms the ruling and notes that the disposition is not suitable for publication or citation according to Ninth Circuit Rule 36-3. Dillberg's arguments regarding the absence of a legislatively-created offense for "attempted solicitation" fail, as the relevant Washington statutes do not preclude such an offense.