Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1984)

MEMORANDUM^*

This is an appeal from the district court's order granting summary judgment for the defendants in an action under 42 U.S.C. § 1983 for violations of appellant Rasche's civil rights. In his section 1983 claim, Rasche asserted that the sheriff of Cowlitz County abridged his liberty and property interests without due process of law by causing his arrest and prosecution for carrying an automatic weapon in alleged violation of Washington law. His complaint also stated as pendent claims various state tort causes of action arising from the same facts. Underlying both appellant's section 1983 and pendent state claims are allegations that the sheriff knowingly or recklessly provided false information to the prosecutor that Rasche was carrying a fully automatic weapon without authorization by the sheriff's office.

Rasche was employed by the Cowlitz County Sheriff's Office from 1974 until February 27, 1984. Advised by his patrol sergeant that he needed a fully automatic assault rifle for protection on the job because of his unique duties as a K-9 officer, Rasche purchased an assault rifle in August 1980, and converted it to a fully automatic rifle. As of October, 1983 both his patrol sergeant, Sergeant Reel, and his supervising lieutenant, Lieutenant Covington, were aware that he had the rifle for use on duty, and that it was fully automatic. Although there was a written office policy restricting the makes and calibers of weapons to be used by deputies, and a proviso allowing for special written authorization from the sheriff for special weapons use, neither Reel nor Covington believed that the policy applied to any weapons besides handguns. Covington testified that it was common practice for deputies, and even the sheriff himself, to carry non-standard weapons such as sawed-off shotguns in their cars while on duty.

On February 24, 1984 Rasche's possession of a fully automatic rifle came to the attention of the chief criminal deputy. The weapon was seized from Rasche, and he was advised that he was under administrative and criminal investigation. On February 27, 1984 he was advised by Sheriff Nelson that he was in violation of office policy, which required specific written authorization from the sheriff for possession of an automatic weapon, and in violation of criminal statutes. Mr. Rasche's employment with the sheriff's office was terminated, and criminal proceedings were instituted by the prosecutor's office. The prosecutor initiated an independent criminal investigation of Rasche, during which Sheriff Nelson supplied a memo to the prosecuting attorney saying that "neither I, nor anyone serving in an administrative capacity, gave Bruce Rasche permission to alter, carry, or possess an automatic weapon while on duty or off duty."

Rasche was arraigned on April 19, 1984 on a charge of illegal possession of a machine gun in violation of Wash.Rev.Code Sec. 9.41.190, which provides:

It is unlawful for any person to manufacture, own, ... or have in possession ... any machine gun ... Provided, however, That such limitation shall not apply to any peace officer in the discharge of official duty....

On May 24, 1984, in a pretrial hearing in Rasche's criminal proceeding, Lieutenant Covington testified that he was aware in October, 1983 that Mr. Rasche was in possession of a fully automatic rifle. Sergeant Reel also testified that he knew that Rasche had a fully automatic weapon, and had given Rasche "tacit permission" to carry it on duty. On June 5, 1984 the Cowlitz County Superior Court granted Rasche's motion to dismiss the criminal charges.

On appeal Rasche challenges the district court's ruling that the sheriff's office and individuals in it were not not liable for damage resulting from Rasche's arrest or prosecution on the weapons charge as a matter of law because the defendant's conduct was not the proximate cause of Rasche's arrest. Because we find that Rasche presented no evidence to rebut the presumption that the prosecutor exercised independent judgment in initiating the prosecution, we affirm.

To establish liability under section 1983, a plaintiff must show a causal link between the actions of the defendant and the violation of plaintiff's constitutional rights. Arnold v. International Business Machines, 637 F.2d 1350, 1355 (9th Cir. 1981). In Smiddy v. Varney, 665 F.2d 261, 265 (9th Cir. 1981), cert. denied, 459 U.S. 829 (1982) ("Smiddy I "), and Smiddy v. Varney, 803 F.2d 1469, 1472 (9th Cir. 1986) ("Smiddy II "), this court held that there is a rebuttable presumption that a prosecutor exercises independent judgment in determining whether there is probable cause on which to file criminal charges. The presumption of independent judgment by the prosecutor may be rebutted by evidence that police officers acted with malice or with reckless disregard for the rights of the plaintiff, for instance by exerting undue pressure on the prosecutor to file charges, by knowingly presenting false information to the prosecutor, or knowingly withholding relevant information from the prosecutor. Smiddy I, 665 F.2d 261, 266-67; Smiddy II, 803 F.2d 1469, 1471. In the absence of such evidence, the presumption of regularity in the prosecutor's decision to charge the plaintiff insulates the investigating officers from liability for the arrest and prosecution, even where the investigation was negligently conducted. Smiddy II, 803 F.2d at 1472.

There is no genuine issue of material fact in this record as to the independence of the prosecutor's decision to charge the plaintiff. The record shows that the sheriff informed the prosecutor that Rasche was in possession of an automatic weapon without authorization from the sheriff. The prosecutor then initiated an independent investigation into Rasche's possession of the weapon. During the course of this investigation the sheriff stated in a memorandum, without first discussing the matter with Rasche's immediate superiors, that no one in the sheriff's office had authorized Rasche to use the weapon in his official duties. This assertion was later shown to be incorrect, but there is no evidence to indicate that the sheriff made the assertion with knowledge that it was false, or knowingly failed to provide information that would have exonerated Rasche. The uncontradicted evidence shows that the sheriff was unaware of the encouragement and tacit authorization Rasche had received from his patrol sergeant and lieutenant to purchase and use the weapon. At most, the sheriff negligently failed to investigate further before making the statement to the prosecutor.

Rasche's remaining contentions of error are without merit. Rasche challenges the district court's finding that the settlement agreement between Rasche and the sheriff's office in connection with his civil service appeal for discharge from his employment waived all of Rasche's claims against all parties arising out of his termination. Rasche argues that the intent of the parties was to settle the civil service appeal only, but the language of the settlement agreement is clear. It releases and discharges:

Cowlitz County and/or the Cowlitz County Sheriff ... from any and all claims ... which may be based upon his removal and discharge as a Cowlitz County Deputy Sheriff ... including, but not limited to, causes of action sounding in tort, contract or based upon any state or federal discrimination statutes or regulation....

The district court properly held that Rasche released the county and the sheriff from all liability in regard to his termination in this agreement.

Rasche also challenges the district court's dismissal of his section 1983 and pendent state claims against Cowlitz County itself. The district court held that the settlement agreement reserved Rasche's prosecution-related claims only as to the sheriff. The agreement provides that:

Nothing contained in this agreement shall be construed to prohibit Rasche from pursuing or prosecuting any right, [or] cause of action, ... which Rasche now owns or holds or has at any time heretofore owned or held as against the Sheriff....

On its face this language reserves claims only against the sheriff. Rasche argues that the first section of the agreement, which stated that Rasche had released his termination-based claims, also defined "Sheriff" as including both the sheriff and Cowlitz County. The phrase at issue states that " [Rasche] does hereby release and discharge Cowlitz County and/or the Cowlitz County Sheriff (hereinafter referred to as the 'County' and/or 'Sheriff') from any and all claims...." A straightforward reading of the provision does not clearly indicate that "Sheriff" was intended to include both the county and the sheriff. The district court properly held that the agreement reserved only the prosecution-related claims as to the sheriff.

Rasche finally argues that the district court improperly refused to remand his pendent state law claims. The district court had no power to remand the state law claims because they were initially brought in federal court. Remand is available only when a case has been removed from state court. Cf. Carnegie-Mellon University v. Cohill, 108 S. Ct. 614 (1988).

AFFIRMED.