Unpublished Disposition, 914 F.2d 261 (9th Cir. 1990)

MEMORANDUM^** 

Richard Burgess brought this 42 U.S.C. § 1983 suit alleging that Scott Ryon and Washington County violated his constitutional rights by "seizing" his property from the Vancouver Police Department and transferring it across state boundaries without a warrant or a hearing. His Fourth Amendment right to be secure in his person and effects and his Fourteenth Amendment due process rights allegedly were implicated. The district court granted summary judgment for the defendants. We affirm.

Two guns and a knife belonging to Burgess were seized during an automobile stop in Vancouver, Washington. Police detective Scott Ryon subsequently had the weapons transferred to Washington County, Oregon where they were part of the evidence in the Grand Jury proceedings in which Burgess was indicted for robbery. We see no violation of Burgess' constitutional rights based on these facts. Moreover, if there were a violation, plaintiff's suit would fail because of the officer's qualified immunity and the County's freedom from respondeat superior liability.

Qualified immunity shields Detective Ryon from liability for this action because Ryon could reasonably have supposed that he was acting constitutionally. Anderson v. Creighton, 483 U.S. 635, 638; Schwartzman v. Valenzuela, 846 F.2d 1209, 1211 (9th Cir. 1988). Reasonableness is evaluated from the perspective of the officer. That is, immunity inheres unless "a reasonable official would understand that what he is doing violates [a constitutional] right." Anderson, 483 U.S. at 640.

In this case, a reasonable police officer could have believed that collecting Burgess' weapons from another police department violated no constitutional right. The weapons were lawfully subject to seizure under Oregon law as evidence in securing an indictment. ORS 133.535(1). Officer Ryon had no reason to suspect that they had been illegally seized or held, or that their interstate transfer was unconstitutional. Indeed, the Oregon state court that ruled on the admissibility of the weapons in Burgess' robbery trial found that no rights had been violated in their seizure and transfer.

Burgess' claim against the county also fails. A municipality may not be held liable for a Sec. 1983 claim under respondeat superior simply because it employed the offending officer. Monell v. New York City Dep. of Social Services, 436 U.S. 658, 691 (1978). Instead, the plaintiff must establish that the officer's offending conduct was pursuant to the municipality's policy or established practice. Id. at 694; Martin v. Malhoyt, 830 F.2d 237, 255 (D.C. Cir. 1987). Burgess has not done this. He has presented no evidence of a systematic practice of constitutional violations on the part of Washington County. Nor has he demonstrated that an unconstitutional municipal policy, one decided at the highest level, lay behind this isolated incident. See St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988); Oklahoma City v. Tuttle, 471 U.S. 808. He has thus failed to establish an essential element of his case against the County.

AFFIRMED.