Christopher Disnute, an individual; v. City of Puyallup;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER DISNUTE, an
individual; et al.,
Plaintiffs - Appellants,
v.
CITY OF PUYALLUP; et al.,
Defendants - Appellees.
No. 12-35447
D.C. No. 3:10-cv-05295-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted July 9, 2013
Seattle, Washington
Before: M. SMITH and N.R. SMITH, Circuit Judges, and WALTER, Senior
District Judge.**
FILED
JUL 15 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.

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The district court did not err when it granted summary judgment to
Appellees and rejected the Fourth Amendment and state law discrimination claims
of Appellants Christopher Disnute, Phillip Currie, and P.C. (“Appellants”).
Appellants fail to show that the two officers (the “Officers”) improperly
seized them in violation of their Fourth Amendment rights. “A person is seized if
taking into account all of the circumstances surrounding the encounter, the police
conduct would have communicated to a reasonable person that he was not at
liberty to ignore the police presence and go about his business.” United States v.
Washington, 490 F.3d 765, 769 (9th Cir. 2007) (internal citation and quotation
marks omitted). We have identified a number of factors to guide our analysis of
whether an encounter with police constitutes a seizure. These include: “(1) the
number of officers; (2) whether weapons were displayed; (3) whether the
encounter occurred in a public or non-public setting; (4) whether the officer’s tone
or manner was authoritative, so as to imply that compliance would be compelled;
and (5) whether the officers informed the person of his right to terminate the
encounter.” Id. at 771-72.
Here, the totality of the circumstances indicates that the Officers’ conduct
did not rise to the level of a seizure. This was not a case where the Officers
outnumbered Appellants, brandished their weapons, or approached Appellants in a
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non-public area at night. See id. While the Officers never told Appellants that
they were free to leave, the Officers did not cite Appellants, search them, or touch
them. See id. at 772-73. Further, there is no evidence that the Officers’ tone or
manner elevated this otherwise consensual encounter to a seizure. See id. at 772
(finding a seizure in part because the officers’ authoritative tone “implied that [the
defendant] was not free to decline [the officers’] requests”). A reasonable person
would not feel seized due to the Officers’ “blocking” Appellants’ exit from the
dock, because the narrow walkway required the Officers to stand between
Appellants and shore in order to address them. Accordingly, we reject Appellants’
reliance on the Officers’ tone and position on the dock to demonstrate a seizure.
We also reject Appellants’ discrimination claim, because Appellants fail to
establish a prima facie case of discrimination under Washington Revised Code
§ 49.60.030. See Demelash v. Ross Stores, Inc., 20 P.3d 447, 456 (Wash. Ct. App.
2001). Specifically, Appellants cannot show that they were similarly situated to
the fishers at the other end of the lake, which the Officers did not approach. See id.
It is undisputed that Appellants were fishing near an area known for criminal
activity while the other fishers were not. Given this difference in location,
Appellants also cannot show that their race was a “substantial factor” in the
differing treatment. See id.; see also McKinney v. City of Tukwila, 13 P.3d 631,
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641-42 (Wash. Ct. App. 2000). Merely pointing out that Appellants were treated
differently than other fishers of a different race is not enough. McKinney, 13 P.3d
at 641-42. Finally, even if Appellants could establish a prima facie case of
discrimination, they cannot show that the Officers’ proffered reasons for the
differing treatment were pretextual. Demelash, 20 P.3d at 456.
AFFIRMED.
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