imported post
Washington State v Flora mentioned in another case.
http://cases.justia.com/us-court-of-appeals/F3/333/972/603089/
United States Court of Appeals, Ninth Circuit. - 333 F.3d 972
1 Tony Alford spent the night in jail for tape recording a traffic stop. Since taping police officers during the performance of their public duties is not illegal under the Washington Privacy Act, the charge was dismissed by a state court.
.....
Here, the jury was instructed that Washington law permitting the tape recording of a traffic stop was clearly established: "It is not a violation of the Washington Privacy Act to tape-record a police officer in the performance of an official function on a public thoroughfare. Such conversations are not `private' under the Privacy Act. This rule of law was clearly established by Washington Courts in 1992 in the case of
State of Washington v. Flora."
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And another case:
http://openjurist.org/388/f3d/676/johnson-v-wj-hawe-1-10
United States Court of Appeals, Ninth Circuit
388 F3d 676 Johnson v. Wj Hawe 1-10
No. 03-35057
...
After Johnson had spent three days in county jail, prosecutors filed a criminal complaint against him, charging one count of recording communication without permission, in violation of the Privacy Act,
...
First, the Privacy Act does not criminalize the recording of a "police officer in the performance of an official function on a public thoroughfare."
Alford, 333 F.3d at 977(citing the district court's jury instructions). The district court's limitation of
Flora's application to communications "involv[ing] the arrest subject ... made in the presence of third parties with no expectation of privacy" was in error.
Flora's underlying principle is that the Privacy Act is not to be "transform[ed] ... into a sword available for use against individuals by public officers acting in their official capacity."
Flora, 845 P.2d at 1358. The language "public officers acting in their official capacity" does not exclude any conduct other than an actual arrest, but encompasses other conduct that is public and official.
See id. at 1357("The State urges us to adopt the view that 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 enjoy a privacy interest which they may assert under the statute. We reject that view as wholly without merit."). In
Alford itself, we applied
Flora to the recording of statements made by police in public during a traffic stop and found there was not probable cause to arrest under the Privacy Act. 333 F.3d at 976, 978. It is undisputed that Johnson recorded Chief Nelson while he was on duty performing an official function in a public place. Under
Flora and
Alford, Johnson did not violate the Privacy Act when he recorded this official, public activity.