Be Grateful for State v. Flora

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Just thought I'd thow out a quick reminder of how lucky we are to have State v. Flora to protect us in recording police officers in the execution of their duties.

There's a rather troubling case out of Massachussets that I thought I would bring up as it has made me want to take a closer look at Washington privacy laws. For a discussion specific to the MA case, take a look over at the Volokh Conspiracy at http://volokh.com/posts/1197414510.shtml

In the MA case which took place in 2001, a motorist was stopped by police and he recorded the stop. No citations were issue and no arrests were made. The motorist felt he was unfairly dealt with and subsequently went to the police department with the recording to file a complaint. The officers were cleared of any wrongdoing but the motorist was arrested for violations of the state's wiretapping laws, asserting that the police had a right to privacy in their communications with him during the traffic stop.

It has resurfaced with a recent arrest for violation of the same wiretapping laws this time by an activist who recorded a police sergeant at a protest. (See http://www.bostonnow.com/news/local/2007/12/10/illegal-taping-conviction)

So, be grateful for State v. Flora...but remember it only applies here in Washington, so beware recording traffic stops in your travels to other states. Know the laws of the state you are in!

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Do they allow COPS over in MA?

My $0.02 is that if the cops don't like what they're doing being recorded than they shouldn't be doing it.

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Do you have a link to some info on State v. Flora?

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CC27 wrote:

Do you have a link to some info on State v. Flora?

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http://www.copwatch.org/statevflora.htm

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joeroket wrote:

CC27 wrote:

    Do you have a link to some info on State v. Flora?

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http://www.copwatch.org/statevflora.htm

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Essentially, state wiretapping laws cover surreptitious recording, IOTW recording secretly, a private conversation, or a conversation in a place where there's an expectation of privacy...

Taping someone with the recorder in plain view is not surreptitious, not only that, it's what's called implied consent.. They know it's on, and they're not NOT talking...

The second thing that comes into play, is in PUBLIC, there is no expectation of privacy, other than bathrooms and the like...

IOTW, the law doesn't apply if you're in public and/or recording with all parties knowledge that it's being recorded.

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joeroket wrote:

CC27 wrote:

Do you have a link to some info on State v. Flora?

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http://www.copwatch.org/statevflora.htm

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Unfortunately there's no official opinion link from the WA Courts site as the decision is from 1992 - they only seem to host official opinions for 90 days (!)

There is a third-party site that hosts unofficial copies of opinions from 1854 forward: http://www.legalwa.org/

I grabbed Flora and a couple of related opinions that use it as precedent and have them published here:

http://www.impsec.org/~jhardin/gunstuff/legal

Note that Johnson v. Sequim (not sure if that's the correct way to officially refer to the case) is a Federal 9th Circuit Court case that cites Flora as precedent.

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John Hardin wrote:

I grabbed Flora and a couple of related opinions that use it as precedent and have them published here:

http://www.impsec.org/~jhardin/gunstuff/legal

Note that Johnson v. Sequim (not sure if that's the correct way to officially refer to the case) is a Federal 9th Circuit Court case that cites Flora as precedent.

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Won't let me access Johnson v Sequim on your site. Also, I believe that federal CC cases only apply within the area of that circuit unless they are appealed to SCOTUS. I have been wrong in the past, however.

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heresolong wrote:

Won't let me access Johnson v Sequim on your site.

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Whoops! Sorry, fixed.

Also, I believe that federal CC cases only apply within the area of that circuit unless they are appealed to SCOTUS. I have been wrong in the past, however.

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True, but the 9th circuit is larger than WA State.

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I looked at the Johnson v. Hawe case, 388 F.3d 676. (previously someone called it Johnson v. Sequim).

This case, while it mentions state v. Flora, makes no new conclusions about Washington law.

What this case did was right an injustice that occurred in a lower court, specifically the USDC for the Western District of WA. The lower court (still a federal court) had subject matter jurisdiction over a section 1983 claim (a civil action for deprivation of rights, often alleging equal protection or 4th amendment violations, but not exclusively). Therefore, it was the proper place to file the complaint, and then moving up to the 9th circuit is the next venue on an appeal from a USDC.

When a federal court looks at a case, it will apply the law of the state where the claim took place (lots of technical issues when multiple places concerned, but this was Sequim, WA). Therefore, when the 9th circuit wanted to know what the rules on privacy were in WA, it looked to the highest court in WA (the WA supreme court). There, the 9th circuit court found the decision in Flora, and appliled the rule that the WA supreme court laid out pertaining to privacy and put it intocontext of this specific section 1983 claim.

Johnson, a young boy, videotaped a cop who got pissed off. He was then arrested. The charges were later thrown out/dismissed. However, he was upset about being arrested and decided to sue the officer (Hawe), the city, and a host of others as well. Generally, a municipal corporation has qualified immunity, as do its employees, when acting in good faith, in their official capacity. In fact, a city must have a defective policy that causes the department to be acting in bad faith to win.

In the end, here is what the 9th circuit determined:

(1) arrestee did not violate Washington's Privacy Act, and thus arrestee was arrested without probable cause in violation of the Fourth Amendment;

(they decided this was a fact based on review of Flora)
(2) police chief was not entitled to qualified immunity;
(3) genuine issue of material fact existed as to whether city's self-training program amounted to deliberate indifference; and
(4) issue as to whether officer's conduct amounted to more than mere annoyance, inconvenience, or embarrassment was for jury.

The 2-4 are much more technical aspects of USC 1983 claims and how to survive a rule 56 summary judgment and/or a rule 12(b)(6) motion for failure to state a claim.

(I just finished my civil procedure exam this afternoon, so I guess it is on my brain at the moment.... I need to sleep!, all nighters suck).

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...so Johnson v. Hawe (thanks for letting me know the right name for it) does *not* have any effect outside WA state?

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That is correct, sort of. In regards to the substantive issue of privacy, the ruling only applies to the WA state law. In regards to federal rules of civil procedure, this case is citeable in the 9th circuit as precedential authority and in the rest of the country as persuasive authority.

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What determines if an official or officer has qualified imunity?

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joshmmm wrote:

Generally, a municipal corporation has qualified immunity, as do its employees, when acting in good faith, in their official capacity.

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This is basically the determining factor.

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More or less, if an officer knew or should have known, that the established law would not allow an arrest, then arresting someone under the color of law is a violation of civil rights for the purposes of a 1983 claim, and, the person doing the arresting can be held liable.

(note: this does not mean the officer pays, just that he is liable... his department may well pick up the tab as part of his employment contract)

Directly from the published opinion:

The principles of Flora and its progeny were well-established at the time of Johnson's arrest. At the very least, these cases stand for the following two propositions: (1) “public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of passersby [do not] enjoy a privacy interest which they may assert under the statute”; and (2) the Privacy Act may not be “transform[ed] ... into a sword available for use against individuals by public officers acting in their official capacity.” Flora, 845 P.2d at 1357-58. Any reasonable officer should have understood these rules to preclude Johnson's arrest under the circumstances. Although Flora involved officer statements made during an arrest, no subsequent authority limited its reach to those facts. Moreover, Flora's plain language suggests a broader application sufficient to preclude Chief Nelson from arresting Johnson for recording him during the performance of his official duties in public. Moreover, in light of the many Washington cases dealing with unlawful arrests under the Privacy Act, a reasonable police officer should have been aware of the 1998 Washington Attorney General's Opinion No. 11, which determines that communications over police dispatch radio are not private. See 1988 WL 404817, at *2-3. Finally, even if these two points were not sufficiently clear to preclude Johnson's arrest, any reasonable officer should have known under the well-established precedent of Katz that there could be no reasonable expectation of privacy in the police radio transmissions which Chief Nelson knowingly exposed to the public through his open car windows. No exigent circumstances existed in this case that could justify a reasonable mistake on the part of chief Nelson. See Saucier, 533 U.S. at 206, 121 S.Ct. 2151.
Therefore defendants are not entitled to qualified immunity. The district court's entry of summary judgment on that basis is reversed