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Spokane, Washington  Est. May 19, 1883

Idaho wants license-plate profiling claim tossed, citing immunity

In this photo taken June 20, 2012, Idaho State Police Trooper Justin Klitch walks away from a car he stopped on the Idaho-Oregon border in Fruitland, Idaho.

 (Nigel Duara / Associated Press)

BOISE – The Idaho State Police can’t be sued over a case of alleged “license-plate profiling” because the agency is protected by the state’s sovereign immunity, the state of Idaho argues.

In the state’s initial response to a lawsuit filed by 69-year-old Darien Roseen, Idaho is asking that the ISP and Trooper Justin Klitch be dismissed as defendants in the lawsuit, at least as far as Klitch is accused of acting in his official capacity as a state trooper.

Roseen was pulled over just as he crossed into Idaho on Interstate 84 in January 2013 and pressed by Klitch to allow a search of his vehicle for drugs, which he refused. Roseen was detained and his vehicle searched for hours before he was allowed to go; nothing illegal was found.

His lawsuit charges numerous violations of his constitutional rights, along with discriminatory and selective treatment by profiling. He had Colorado plates and a Washington driver’s license; both states have legalized marijuana, while Idaho has not.

The 11th Amendment grants states sovereign immunity from being sued for money damages.

“It’s a very strange area of law with lots of bizarre rules,” University of Idaho law professor and Associate Dean Rich Seamon said. “It’s really a restriction on lawsuits that try to tap into the state treasury. It extends to not only the state of Idaho, but to state entities like the ISP.”

Nevertheless, lawsuits that charge constitutional violations by police and agencies generally do go forward, Seamon said. ”

Lawyers for Fruitland police and the Payette County Sheriff’s Department and their officers have likewise asked the court to dismiss Roseen’s suit against the agencies “on the basis that neither is an entity subject to suit.”

But the lawsuit also names the individual officers, both in their individual and official capacities. That means if all the initial filings were successful, and the three agencies were removed as defendants, the lawsuit could still continue against the individual officers.

Mark Coonts, one of the attorneys for Roseen, had no comment on the filings; the plaintiff now must file responses, which are due in May.

ISP and Klitch are being represented in the case by Boise attorney Michael W. Moore of Moore and Elia LLP. Moore wasn’t available for comment Thursday.

“It can be a little tricky to find the right defendants,” Seamon said, “but in terms of getting court decisions that decide whether this kind of profiling violates the Constitution or not, they will find a way to succeed.”

Seamon, an expert on constitutional law and federal courts, said, “It does seem to me that there’s a serious issue here. It’s one of the many issues that arises with Idaho starting to be surrounded by states that have legalized marijuana.”