                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 15 2013

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


CHRISTOPHER DISNUTE, an                          No. 12-35447
individual; et al.,
                                                 D.C. No. 3:10-cv-05295-RBL
                Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

CITY OF PUYALLUP; et al.,

                Defendants - Appellees.


                     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.**



            *
             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.
      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


                                          2
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,


                                           3
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.




                                          4
