Fordyce v. City of Seattle - 1st Amendment Auditing

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Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)

TLDR for Fordyce v. City of Seattle

This case stemmed from Jerry Edmon Fordyce’s attempt to videotape a public protest march and police activities in Seattle on August 5, 1990.
Fordyce alleged a police officer physically interfered with his recording, and he was later arrested for violating a Washington State privacy statute (Wash.Rev.Code Sec. 9.73.030) for attempting to videotape sidewalk bystanders against their wishes. He spent the night in jail, and charges were dismissed later.
Fordyce sued the City of Seattle and eight officers, alleging First Amendment violations (right to gather news) and unlawful arrest, along with state tort claims, seeking damages and injunctive relief.
The district court initially granted summary judgment to the defendants on most claims, but sua sponte awarded Fordyce declaratory relief, stating the privacy statute did not prohibit videotaping or sound-recording conversations in public streets with readily apparent devices.
The Ninth Circuit Court of Appeals reinstated Fordyce’s claims against Officer Elster regarding assault and First Amendment interference, finding a genuine issue of material fact.
The court affirmed qualified immunity for officers regarding Fordyce’s arrest due to the unsettled nature of the privacy statute under state law at the time.
Crucially, the Ninth Circuit vacated the declaratory relief because the Washington State Attorney General was not properly notified or given an opportunity to intervene, as required when the constitutionality of a state statute is drawn into question.

Summary of Fordyce v. City of Seattle

The case of Jerry Edmon Fordyce v. City of Seattle centers on a civil rights suit brought by Jerry Edmon Fordyce against the City of Seattle and several police officers following incidents on August 5, 1990. Fordyce, who considered himself part of a public protest, was attempting to videotape the demonstration, including the actions of police officers, presumably for public access television. During the event, the record suggested some officers were displeased with Fordyce’s actions, and one officer allegedly physically attempted to dissuade him. Later, Fordyce was arrested by a different officer after he tried to videotape sidewalk bystanders who objected. He was charged with violating Wash.Rev.Code Sec. 9.73.030, a Washington State privacy statute that prohibits recording private conversations without the consent of all participants. The charges were later dismissed.

Fordyce subsequently filed a civil-rights suit under 42 U.S.C. Sec. 1983, claiming interference with his First Amendment right to gather news and arrest without probable cause. He also brought state tort claims and sought permanent injunctive relief against the City and officers to prevent enforcement of the privacy statute against amateur journalists.

The district court initially granted summary judgment to the defendants on Fordyce’s pre-arrest claims, finding no evidence of assault, and also on his damages claims, concluding the officers had qualified immunity and the city was not liable. While declining Fordyce’s request for injunctive relief, the district court sua sponte awarded him declaratory relief, stating that Wash.Rev.Code Sec. 9.73.030 does not prohibit videotaping or sound-recording conversations held in a public street, within hearing of others, using a readily apparent recording device.

On appeal, the Ninth Circuit made several key rulings:

The court reversed and remanded the summary judgment regarding Officer Elster, finding a genuine issue of material fact existed as to whether Elster assaulted Fordyce and interfered with his First Amendment right to film matters of public interest. Fordyce’s sworn testimony and his videotape corroborated the alleged deliberate and violent smashing of his camera into his face.
The court affirmed qualified immunity for all individual police officers concerning Fordyce’s arrest-related Section 1983 damages claims. At the time of the arrest, the interpretation of “private conversations” in public streets under the Washington privacy statute was unsettled, and a reasonable officer could have believed Fordyce was violating the law.
The court also affirmed summary judgment for the City of Seattle on Fordyce’s Section 1983 damages claims, as Fordyce failed to show the City was culpable through an unconstitutional policy or that a city policy was the moving force behind any constitutional deprivation. However, the issue of vicarious liability for Seattle under state law for Officer Elster’s alleged torts was vacated and remanded due to the reinstatement of Elster as a defendant.
Most significantly, the Ninth Circuit vacated the award of declaratory relief. While acknowledging Fordyce’s standing to seek such relief due to the “brooding presence” of the unsettled statute, the court found procedural flaws. The district court had failed to notify the Washington State Attorney General that it might rule on the constitutionality of Wash.Rev.Code Sec. 9.73.030, as required by 28 U.S.C. Sec. 2403(b), which mandates notice and an opportunity to intervene when the constitutionality of a state statute is questioned and the state or its agency is not a party. The court found that allowing the Attorney General to file an amicus brief was not a substitute for a formal opportunity to intervene as a party.

Other Related Cases

The Fordyce v. City of Seattle opinion refers to several cases that helped define the legal landscape for its rulings, particularly concerning municipal liability and qualified immunity:

Monell v. New York City Dep’t of Social Servs. (1978): Cited for the principle that a municipality can only be held liable under 42 U.S.C. Sec. 1983 if a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by” the municipality was itself unconstitutional. Fordyce failed to meet this standard against the City of Seattle.
Pembaur v. City of Cincinnati (1986) and Larez v. City of Los Angeles (1991): Further clarified that a city policy or a decision by an authorized governmental decisionmaker must be the “moving force” behind any deprivation of constitutional rights for municipal liability under Section 1983.
Act Up!/Portland v. Bagley (1993): Used by the court to support its decision that the officers were entitled to qualified immunity from damages for Fordyce’s arrest.
Steffel v. Thompson (1974): Referenced to establish that for an award of declaratory relief concerning the constitutionality of a state criminal statute, a plaintiff only needs to show “a genuine threat of enforcement of a disputed state criminal statute”.
Mt. Healthy City Bd. of Educ. v. Doyle (1977): Cited to clarify that Eleventh Amendment immunity does not extend to municipal corporations like the City of Seattle, distinguishing them from state agencies.
Yniguez v. Arizona (1991): Referenced in support of the argument that without proper certification to the State Attorney General, the district court lacked the opportunity to fully hear the state’s views on the statute’s constitutionality.

What are the main arguments regarding the Washington State Privacy Statute and Fordyce’s First Amendment Rights?

The core of the legal dispute, particularly regarding the declaratory relief that was ultimately vacated, revolved around the intersection of Washington State’s privacy statute and Fordyce’s First Amendment right to gather news.

Arguments Supporting Fordyce’s Right to Record (Implied and Direct):

First Amendment Right to Gather News: Fordyce’s lawsuit was predicated on the idea that his attempt to film matters of public interest, including police activities during a public protest, was an exercise of his First Amendment right to gather news. The Ninth Circuit acknowledged this by reversing summary judgment on his Section 1983 claims related to interference with this right against Officer Elster.
Public Conversations Lack Expectation of Privacy: The district court’s sua sponte declaratory relief, though later vacated on procedural grounds, directly addressed this point, declaring that Wash.Rev.Code Sec. 9.73.030 “does not prohibit the videotaping or sound-recording of conversations held in a public street, within the hearing of persons not participating in the conversation, by means of a readily apparent recording device“. This reflects the argument that conversations in public, audible to others, generally lack a reasonable expectation of privacy, rendering the “private conversation” clause of the statute inapplicable.
Amateur Journalists and News Gathering: Fordyce, as an amateur journalist videotaping for public access television, challenged the statute’s potential to discriminate against such individuals if it were interpreted to apply broadly to public recordings. The questions posed to amici curiae by the district court highlighted this tension, exploring whether denying the presumption of consent to freelance, unpaid news-gatherers, while affording it to traditional media, would violate First Amendment rights.

Arguments Against Unrestricted Recording (Represented by the State’s Interest and Officers’ Actions):

Protection of Conversational Privacy: The Washington State privacy statute (Wash.Rev.Code Sec. 9.73.030) explicitly makes it unlawful to record any “private conversation” without the consent of all participants. The officers’ arrest of Fordyce for attempting to record sidewalk bystanders against their wishes stemmed from their belief that he was violating this statute, implying an argument for the statute’s role in protecting individual privacy, even in public settings.
Unsettled Nature of the Law: At the time of Fordyce’s arrest and the district court’s order, the highest court in Washington had not definitively interpreted the privacy statute to permit recording audible conversations among private citizens on public streets. This legal ambiguity formed the basis for the appellate court’s decision to grant qualified immunity to the arresting officers, as a reasonable officer could have believed Fordyce was recording private conversations in violation of the then-unsettled statute.

The Level of Scrutiny Applied to the First Amendment Claims

The Fordyce v. City of Seattle case did not explicitly apply a specific level of scrutiny (e.g., strict or intermediate scrutiny) to the Washington State privacy statute itself. This is primarily because the Ninth Circuit vacated the declaratory judgment that would have definitively ruled on the statute’s application and potential constitutionality. The court avoided a direct constitutional ruling on the statute’s application due to procedural flaws, specifically the failure to formally notify the Washington State Attorney General.

However, the Ninth Circuit did directly address Fordyce’s First Amendment right to gather news in the context of his claims against Officer Elster. The court found that a genuine issue of material fact existed regarding whether Officer Elster interfered with Fordyce’s First Amendment right to film matters of public interest. This implicitly acknowledges that the right to record public events, including police activity, is a protected First Amendment activity.

The questions the district court posed to amici curiae, though part of a procedurally flawed process, clearly show that constitutional issues were being contemplated in relation to the privacy statute, particularly regarding First Amendment rights of newsgatherers, whether professional or amateur. These questions hinted at the types of scrutiny that might have been applied had the court formally reviewed the statute’s constitutionality, such as potential discrimination based on the content or speaker (e.g., professional vs. freelance newsgatherers).

Audio Recording Police in Public: Key Questions from Fordyce

1. What does the Washington State privacy statute (Wash.Rev.Code Sec. 9.73.030) say? The statute generally makes it unlawful to intercept or record any “private conversation” without the consent of all persons engaged in the conversation. An exception exists for employees of regularly published media acting in bona fide news gathering duties, where consent is presumed if the recording device is readily apparent.

2. What was Jerry Edmon Fordyce doing that led to the lawsuit? Fordyce was attempting to videotape a public protest march in Seattle on August 5, 1990, specifically focusing on the activities of police officers assigned to the event. He also attempted to videotape sidewalk bystanders against their wishes, which led to his arrest.

3. What were Fordyce’s main claims against the City and police officers? Fordyce brought a civil-rights suit seeking damages for violations of his First Amendment right to gather news and for unlawful arrest without probable cause under 42 U.S.C. Sec. 1983. He also sought damages for state tort claims and permanent injunctive relief against the City and officers to prevent enforcement of the privacy statute against amateur journalists.

4. What were the district court’s initial rulings on Fordyce’s claims? The district court granted summary judgment to the defendants on Fordyce’s pre-arrest claims (finding no assault) and on his damages claims (finding qualified immunity for officers and nonliability for the city). However, the court sua sponte awarded Fordyce declaratory relief, stating that the Washington privacy statute does not prohibit recording public conversations with a readily apparent device.

5. How did the Ninth Circuit rule regarding the alleged assault by Officer Elster? The Ninth Circuit reversed and remanded the district court’s summary judgment regarding Officer Elster, finding that a genuine issue of material fact existed as to whether Elster assaulted and battered Fordyce in an attempt to prevent him from exercising his First Amendment right to film matters of public interest.

6. What was the Ninth Circuit’s decision regarding qualified immunity for Fordyce’s arrest? The Ninth Circuit affirmed the grant of summary judgment for all individual officer defendants on the Section 1983 damages claims relating to Fordyce’s arrest. This was because, at the time of the arrest, the Washington state law on whether conversations in public streets could be deemed private was unsettled, and a reasonable officer could have believed Fordyce was violating the statute.

7. Why did the Ninth Circuit vacate the declaratory relief concerning the Washington statute? The Ninth Circuit vacated the declaratory relief due to procedural flaws. The district court failed to comply with 28 U.S.C. Sec. 2403(b), which requires notification and an opportunity for the State Attorney General to intervene when the constitutionality of a state statute is questioned and the state is not a party. The court found that the City of Seattle was not a “state agency” for this purpose, and an amicus brief from the Attorney General was not a substitute for a formal opportunity to intervene.