IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THOMAS BARES, No. 87055-6-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION CITY OF FEDERAL WAY,
Respondent.
MANN, J. — Thomas Bares sued the City of Federal Way (City) for false arrest,
false imprisonment, and negligence based on his warrantless arrest. Bares appeals the
trial court’s order dismissing his case on summary judgment. We affirm.
I
On October 4, 2021, Joshua Prince reported a residential burglary at his home to
the Pierce County Sheriff’s Department. Pierce County Sheriff’s Deputy David
Sutherland responded to the incident. According to Prince, he arrived home and his
garage was open with several items missing, including at least four chainsaws with
unknown serial numbers. Deputy Sutherland provided a theft inventory list and
suggested that Prince periodically check the website OfferUp to see if his items were No. 87055-6-I/2
listed. Prince completed a theft inventory sheet with the serial numbers of the missing
items.
On October 6, 2021, Prince contacted his friend, Officer Josh McConnell, with
the Federal Way Police Department (FWPD). Prince sent Officer McConnell photos of
the chainsaw on OfferUp that had the same aftermarket features as his missing
chainsaw. One of the photos on OfferUp showed the last four digits of the serial
number, which matched the last four digits of Prince’s stolen chainsaw.
The seller of the chainsaw was Thomas Bares. FWPD had records of a previous
contact with Bares for trying to sell a stolen chainsaw on OfferUp, but no charges were
brought. Officer McConnell contacted Bares through OfferUp and offered to purchase
the chainsaw. Officer McConnell and Bares arranged to meet at a Lowes parking lot at
7 p.m. that evening.
Members of FWPD, including members of the special investigations unit (SIU)
and special operations unit, held a briefing before the arranged meeting. The plan was
for SIU Detective Justin Antholt to appear as an undercover buyer and meet with Bares
to purchase the chainsaw. The remainder of the officers were to serve as the
surveillance and arrest team.
Detective Antholt met with Bares in the parking lot. Detective Antholt observed
that the aftermarket features and the serial number on the chainsaw matched Prince’s
stolen chainsaw. Bares told Detective Antholt that he had the chainsaw for a couple of
years. Detective Antholt negotiated the price with Bares and eventually completed the
purchase and left.
-2- No. 87055-6-I/3
Detective Prince, who observed the sale, advised the arresting officers that it
appeared that Bares had a handgun on his person. Detective Antholt and Officer
McConnell then conducted a high risk stop on Bares in the Lowes parking lot.
According to Bares, once he got into his car, he observed multiple police cars with the
lights on approaching him. He said officers pulled multiple guns and commanded him to
get out of his car. Bares was placed in the back of a police cruiser.
Officers read Bares his Miranda 1 rights. Bares told officers that he purchased the
chainsaw the night before from a man in SeaTac named Denie. He told officers that he
regularly purchased chainsaws, fixed the chainsaws in his mother’s garage, and sold
them on OfferUp. Officers asked for permission to search his mother’s garage, which
he permitted contingent on his mother’s consent. Officers found six chainsaws in the
garage, but after running the serial numbers, none of them appeared to be stolen.
Bares was placed into an interview room at FWPD. Bares consented to officers
searching his phone. Officers released Bares but said that they could not return the
phone to him until at least the next day so that they could search it. Bares was released
from the police station about 10:30 p.m. and was never charged.
Bares sued the City of Federal Way asserting claims of false arrest, false
imprisonment, and negligence in the execution of a warrantless arrest. The trial court
granted the City’s motion for summary judgment and dismissed Bares’s case.
Bares appeals.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
-3- No. 87055-6-I/4
II
Bares assigns error to the trial court’s order granting summary judgment. Bares
contends that summary judgment was not appropriate because the arresting officers did
not have probable cause for the arrest. 2 We disagree.
A
We review summary judgment orders de novo and perform the same inquiry as
the trial court. Owen v. Burlington N. & Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108
P.3d 1220 (2005). We view all facts and reasonable inferences in the light most
favorable to the nonmoving party. Owen, 153 Wn.2d at 787. Summary judgment is
proper if the record before the trial court establishes “that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56(c).
“The gist of an action for false arrest or false imprisonment is the unlawful
violation of a person’s right of personal liberty or the restraint of that person without
legal authority.” Bender v. City of Seattle, 99 Wn.2d 582, 591, 664 P.2d 492 (1983).
The existence of probable cause that a crime has been committed is a complete
defense to an action for false arrest and false imprisonment. McBride v. Walla Walla
County, 95 Wn. App. 33, 38, 975 P.2d 1029 (1999). We determine whether there was
probable cause under an objective standard. State v. Gaddy, 152 Wn.2d 64, 70, 93
P.3d 872 (2004). “Probable cause exists when the arresting officer is aware of facts or
2 Bares initially asserts that the City was required to plead probable cause as an affirmative
defense in its answer. We disagree. In an action for false arrest, the burden is on the plaintiff to prove that an arrest was unlawful—i.e., without probable cause. See Noel v. King County, 48 Wn. App. 227, 236, 738 P.2d 692 (1987). As a result, probable cause is not an affirmative defense that must be pled.
-4- No. 87055-6-I/5
circumstances, based on reasonably trustworthy information, sufficient to cause a
reasonable officer to believe a crime has been committed.” Gaddy, 152 Wn.2d at 70.
In a false arrest action, “unless the evidence conclusively and without contradiction
establishes the lawfulness of the arrest, it is a question of fact for the jury to determine
whether an arresting officer acted with probable cause.” McBride, 95 Wn. App. at 38;
Gurno v. Town of LaConner, 65 Wn. App. 218, 223, 828 P.2d 49 (1992).
B
Here, the arresting officers believed that they had probable cause to arrest Bares
for possessing stolen property in the second degree, RCW 9A.56.160, and trafficking in
stolen property in the first degree, RCW 9A.82.050. A person commits second degree
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THOMAS BARES, No. 87055-6-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION CITY OF FEDERAL WAY,
Respondent.
MANN, J. — Thomas Bares sued the City of Federal Way (City) for false arrest,
false imprisonment, and negligence based on his warrantless arrest. Bares appeals the
trial court’s order dismissing his case on summary judgment. We affirm.
I
On October 4, 2021, Joshua Prince reported a residential burglary at his home to
the Pierce County Sheriff’s Department. Pierce County Sheriff’s Deputy David
Sutherland responded to the incident. According to Prince, he arrived home and his
garage was open with several items missing, including at least four chainsaws with
unknown serial numbers. Deputy Sutherland provided a theft inventory list and
suggested that Prince periodically check the website OfferUp to see if his items were No. 87055-6-I/2
listed. Prince completed a theft inventory sheet with the serial numbers of the missing
items.
On October 6, 2021, Prince contacted his friend, Officer Josh McConnell, with
the Federal Way Police Department (FWPD). Prince sent Officer McConnell photos of
the chainsaw on OfferUp that had the same aftermarket features as his missing
chainsaw. One of the photos on OfferUp showed the last four digits of the serial
number, which matched the last four digits of Prince’s stolen chainsaw.
The seller of the chainsaw was Thomas Bares. FWPD had records of a previous
contact with Bares for trying to sell a stolen chainsaw on OfferUp, but no charges were
brought. Officer McConnell contacted Bares through OfferUp and offered to purchase
the chainsaw. Officer McConnell and Bares arranged to meet at a Lowes parking lot at
7 p.m. that evening.
Members of FWPD, including members of the special investigations unit (SIU)
and special operations unit, held a briefing before the arranged meeting. The plan was
for SIU Detective Justin Antholt to appear as an undercover buyer and meet with Bares
to purchase the chainsaw. The remainder of the officers were to serve as the
surveillance and arrest team.
Detective Antholt met with Bares in the parking lot. Detective Antholt observed
that the aftermarket features and the serial number on the chainsaw matched Prince’s
stolen chainsaw. Bares told Detective Antholt that he had the chainsaw for a couple of
years. Detective Antholt negotiated the price with Bares and eventually completed the
purchase and left.
-2- No. 87055-6-I/3
Detective Prince, who observed the sale, advised the arresting officers that it
appeared that Bares had a handgun on his person. Detective Antholt and Officer
McConnell then conducted a high risk stop on Bares in the Lowes parking lot.
According to Bares, once he got into his car, he observed multiple police cars with the
lights on approaching him. He said officers pulled multiple guns and commanded him to
get out of his car. Bares was placed in the back of a police cruiser.
Officers read Bares his Miranda 1 rights. Bares told officers that he purchased the
chainsaw the night before from a man in SeaTac named Denie. He told officers that he
regularly purchased chainsaws, fixed the chainsaws in his mother’s garage, and sold
them on OfferUp. Officers asked for permission to search his mother’s garage, which
he permitted contingent on his mother’s consent. Officers found six chainsaws in the
garage, but after running the serial numbers, none of them appeared to be stolen.
Bares was placed into an interview room at FWPD. Bares consented to officers
searching his phone. Officers released Bares but said that they could not return the
phone to him until at least the next day so that they could search it. Bares was released
from the police station about 10:30 p.m. and was never charged.
Bares sued the City of Federal Way asserting claims of false arrest, false
imprisonment, and negligence in the execution of a warrantless arrest. The trial court
granted the City’s motion for summary judgment and dismissed Bares’s case.
Bares appeals.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
-3- No. 87055-6-I/4
II
Bares assigns error to the trial court’s order granting summary judgment. Bares
contends that summary judgment was not appropriate because the arresting officers did
not have probable cause for the arrest. 2 We disagree.
A
We review summary judgment orders de novo and perform the same inquiry as
the trial court. Owen v. Burlington N. & Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108
P.3d 1220 (2005). We view all facts and reasonable inferences in the light most
favorable to the nonmoving party. Owen, 153 Wn.2d at 787. Summary judgment is
proper if the record before the trial court establishes “that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56(c).
“The gist of an action for false arrest or false imprisonment is the unlawful
violation of a person’s right of personal liberty or the restraint of that person without
legal authority.” Bender v. City of Seattle, 99 Wn.2d 582, 591, 664 P.2d 492 (1983).
The existence of probable cause that a crime has been committed is a complete
defense to an action for false arrest and false imprisonment. McBride v. Walla Walla
County, 95 Wn. App. 33, 38, 975 P.2d 1029 (1999). We determine whether there was
probable cause under an objective standard. State v. Gaddy, 152 Wn.2d 64, 70, 93
P.3d 872 (2004). “Probable cause exists when the arresting officer is aware of facts or
2 Bares initially asserts that the City was required to plead probable cause as an affirmative
defense in its answer. We disagree. In an action for false arrest, the burden is on the plaintiff to prove that an arrest was unlawful—i.e., without probable cause. See Noel v. King County, 48 Wn. App. 227, 236, 738 P.2d 692 (1987). As a result, probable cause is not an affirmative defense that must be pled.
-4- No. 87055-6-I/5
circumstances, based on reasonably trustworthy information, sufficient to cause a
reasonable officer to believe a crime has been committed.” Gaddy, 152 Wn.2d at 70.
In a false arrest action, “unless the evidence conclusively and without contradiction
establishes the lawfulness of the arrest, it is a question of fact for the jury to determine
whether an arresting officer acted with probable cause.” McBride, 95 Wn. App. at 38;
Gurno v. Town of LaConner, 65 Wn. App. 218, 223, 828 P.2d 49 (1992).
B
Here, the arresting officers believed that they had probable cause to arrest Bares
for possessing stolen property in the second degree, RCW 9A.56.160, and trafficking in
stolen property in the first degree, RCW 9A.82.050. A person commits second degree
possession of stolen property if they possess stolen property exceeding $750 but less
than $5,000. RCW 9A.56.160(1). And “‘[p]ossessing stolen property’ means knowingly
to receive, retain, possess, conceal, or dispose of stolen property knowing that it has
been stolen and to withhold or appropriate the same to the use of any person other than
the true owner or person entitled thereto.” RCW 9A.56.140(1). A person commits the
crime of trafficking stolen property when the person “knowingly initiates, organizes,
plans, finances, directs, manages, or supervises the theft of property for sale to others,
or who knowingly traffics in stolen property.” RCW 9A.82.050.
The record establishes that the officers objectively and reasonably believed that
Bares had committed a crime. Before his arrest, Prince identified Bares’s chainsaw in
the OfferUp posting as his missing chainsaw. Additionally, officers observed the last
four digits of the serial number were the same as the missing chainsaw. The chainsaw
on the listing also shared the same aftermarket feature as Prince’s stolen chainsaw.
-5- No. 87055-6-I/6
After officers identified Bares as the seller of the chainsaw, they looked at his
other OfferUp posting and learned that Bares was selling another chainsaw on OfferUp
that matched the make and model of another stolen chainsaw. The officers also knew
that Bares had previously been contacted by FWPD about possibly selling a stolen
chainsaw. Then, when Bares handed Detective Antholt the chainsaw in the parking lot,
Detective Antholt observed that the full serial number was “clear and legible” and
matched the serial number of Prince’s stolen chainsaw. Detective Antholt also knew
that Bares was dishonest about how long he owned the chainsaw, and he observed that
Bares became nervous as the two discussed the price.
Bares argues that the officers lacked probable cause because Detective Antholt’s
report did not state that he communicated information about the serial number to the
arresting officers before the arrest. But because Bares did not make this argument
below, it is waived. RAP 2.5(a). The record shows that the arresting officers met and
discussed the operation in advance, and they were able to observe the purchase from
their vehicles.
Bares next argues that there was a dispute about the price of the chainsaw. The
crime of possessing stolen property in the second degree requires that the property be
over $750. Bares listed the chainsaw for $800 and Detective Antholt initially offered
$700 before buying it for $760. The purchase also included a screwdriver, chains, and
oil. Bares argues that the value of the accessories is not in the record, so the price paid
at the sale does not established the value of the chainsaw. We disagree. Officers were
aware that items on OfferUp are often sold for under market value. Additionally, the
theft inventory report showed that the chainsaw was worth over $800.
-6- No. 87055-6-I/7
Bares lastly argues that there was a genuine dispute of fact because the theft
inventory list is unreliable. He argues that the theft inventory list is dated at 10:40 a.m.
and the initial report without the serial numbers is dated at 10:20 a.m. He asserts that
Prince would probably not have time to find all of the serial numbers for the theft
inventory list in only 20 minutes. Lastly, he notes that the theft inventory sheet has
different handwriting and pen colors. We disagree. This is only a speculative assertion.
There is no evidence that Prince did not complete the inventory list in 20 minutes or that
it is unreliable because the handwriting differs. Without more, Bares’s speculation
cannot overcome summary judgment.
The trial court did not err in dismissing Bares’s litigation on summary judgment.
We affirm. 3
WE CONCUR:
3 Bares assigns error to the trial court’s determination that officers were not negligent in their
investigation and arrest of Bares. But Bares provides no argument as to this specific claim in his brief. “A party that offers no argument in its opening brief on a claimed assignment of error waives the assignment.” Brown v. Vail, 169 Wn.2d 318, 336 n.11, 237 P.3d 263 (2010).
-7-