Fordyce v. City of Seattle

• Decision Date: 16 May 1995
• Docket Number: Nos. 93-35824,93-35991 and 93-36020,93-35840,s. 93-35824
• Citation: 55 F.3d 436
• Parties: 23 Media L. Rep. 2011 Jerry Edmon FORDYCE, Plaintiff-Appellee, v. CITY OF SEATTLE, Defendant-Appellant. Jerry Edmon FORDYCE, Plaintiff-Appellant, v. CITY OF SEATTLE; M.S. Donnelly; C. Villagracia, Defendants-Appellees. (Two Cases.) Jerry Edmon FORDYCE, Plaintiff-Appellee, v. CITY OF SEATTLE, Defendant-Appellant, and M.S. Donnelly; C. Villagracia, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 436

55 F.3d 436

23 Media L. Rep. 2011

Jerry Edmon FORDYCE, Plaintiff-Appellee, v. CITY OF SEATTLE, Defendant-Appellant.

Jerry Edmon FORDYCE, Plaintiff-Appellant, v. CITY OF SEATTLE; M.S. Donnelly; C. Villagracia,

Defendants-Appellees. (Two Cases.)

Jerry Edmon FORDYCE, Plaintiff-Appellee, v. CITY OF SEATTLE, Defendant-Appellant, and M.S. Donnelly; C. Villagracia, Defendants.

Nos. 93-35824, 93-35840, 93-35991 and 93-36020.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 6, 1994.

Submission Withdrawn Oct. 20, 1994.

Resubmitted Feb. 27, 1995.

Decided May 16, 1995.

Ted Buck, Stafford Frey Cooper, Seattle, WA, for defendants-appellants-appellees.

James E. Lobsenz, Carney, Badley, Smith & Spellman, Seattle, WA, for plaintiff-appellee-appellant.

Appeals from the United States District Court for the Western District of Washington.

Before: LAY, ^* TROTT and T.G. NELSON, Circuit Judges.

TROTT, Circuit Judge:

I. Background

This case arises from the alleged interference by police officers of the City of Seattle with Jerry Edmon Fordyce's attempt on August 5, 1990 to videotape a public protest march. Fordyce, who apparently considered himself part of the protest, had volunteered to videotape the demonstration for "local television production," presumably for broadcast on a public access channel. Among his subjects were the activities of the police officers assigned to work the event. Not surprisingly, the police themselves became targets of the protest and were subjected to rude and profane insults. Generally, the police reacted to this treatment in a calm and professional manner, but the record suggests that some of these officers were not pleased with Fordyce's actions, and that one officer in particular attempted physically to dissuade Fordyce from his mission. At the end of the day, in a separate incident, a different officer arrested Fordyce when he attempted to videotape some sidewalk bystanders against their wishes. Fordyce was charged with violating a Washington State privacy statute, Wash.Rev.Code Sec. 9.73.030, which forbids the recording of private conversations without the consent of all participants. ¹ Fordyce spent the night in jail. On October 1, 1990, the charges against Fordyce were dismissed on motion of the prosecuting attorney.

Subsequently, Fordyce brought a civil-rights suit against the City of Seattle and eight Seattle police officers. Fordyce sought damages from the officers in their individual capacities pursuant to 42 U.S.C. Sec. 1983 for interfering with his First Amendment right to gather news and for arresting him without the requisite probable cause for allegedly violating Wash.Rev.Code Sec. 9.73.030. He also invoked supplemental jurisdiction in order to seek damages from the officers in their individual capacities for violations of state tort law. Fordyce sought permanent injunctive relief against the City of Seattle and the officers forbidding enforcement of Wash.Rev.Code Sec. 9.73.030 against amateur journalists such as himself, and sought damages from the City of Seattle pursuant to Sec. 1983 and supplemental state tort claims. Fordyce demanded attorney's fees pursuant to 42 U.S.C. Sec. 1988.

The defendants moved for summary judgment, and Fordyce moved for partial summary judgment. The district court granted the defendants' motion for summary judgment as to Fordyce's pre-arrest Sec. 1983 and state tort claims, finding "no evidence that would permit a rational jury to find that he was assaulted." Fordyce v. City of Seattle, 840 F.Supp. 784, 788 (W.D.Wash.1993). The district court also granted the defendants' motion for summary judgment as to Fordyce's damages claims pursuant to Sec. 1983 and state law torts, concluding that the individual police officers were qualifiedly immune and the city nonliable. Id. at 788-91.

The district court declined to award Fordyce the injunctive relief he had requested. Instead, the district court sua sponte awarded Fordyce declaratory relief, which he had not requested, 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." Id. at 794.

After entry of the declaratory judgment, Fordyce requested attorney's fees against the City of Seattle (but not against the defendant police officers). The defendants requested attorney's fees as well, on the ground that Fordyce's suit had been frivolous as to certain individual officers. On October 13, 1993, the district court issued two unpublished orders. The first granted attorney's fees to Fordyce as a "prevailing party" under 42 U.S.C. Sec. 1988, but only in the amount of 20 percent of the fees Fordyce had requested. The second denied attorney's fees to the defendants.

Both parties appeal the district court's orders. The City of Seattle and the individual defendants appeal the district court's award of declaratory relief, award of attorney's fees to Fordyce as a "prevailing party," and denial of the defendants' attorney's fees. Fordyce appeals the district court's grant of summary judgment to the City and the individual officers and the amount of attorney's fees awarded to him. We affirm in part, reverse in part, vacate in part, and remand.

II. Liability and Damages

The district court based some of its dispositive rulings on its conclusion that the record contained "no evidence that would permit a rational jury to find that [Fordyce] was assaulted." Fordyce, 840 F.Supp. at 788. We respectfully disagree. As we read the record, a genuine issue of material fact does exist regarding whether Fordyce was assaulted and battered by a Seattle police officer in an attempt to prevent or dissuade him from exercising his First Amendment right to film matters of public interest. Fordyce testified in a deposition that his camera was deliberately and violently smashed into his face by Officer Elster while Fordyce was publicly gathering information with it during the demonstration. Although corroboration is not required to establish a genuine issue of material fact when the issue is established by sworn testimony, Fordyce's allegation is nonetheless corroborated by his videotape, which is in the record and which we have reviewed. Thus, as to Officer Elster, the matter did not merit a grant of summary judgment with respect either to the First Amendment claims under 42 U.S.C. Sec. 1983 or to the supplemental state law claims of assault and battery. These claims merit a trial.

As to the Sec. 1983 claims stemming from Fordyce's arrest, we agree with the district court that the officers are entitled to qualified immunity from suit for damages. Act Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir.1993).

The relevant facts are undisputed. While Fordyce was videotaping people on the streets of Seattle, he was simultaneously audio-recording them as well. Prior to arresting Fordyce, an officer asked him whether the videocamera was recording voices and warned him that a Washington State statute forbade recording private conversations without consent. Fordyce refused to stop videotaping two boys after an adult relative supervising them asked him to stop and complained to the police. The police officers also asked Fordyce to stop, but he refused. He was then arrested for violating Wash.Rev.Code Sec. 9.73.030.

At the time of Fordyce's arrest, whether and under what circumstances conversations in public streets could be deemed private within the meaning of the privacy statute was not yet settled under Washington state law. Under the facts marshalled pursuant to the motions for summary judgment, a reasonable officer could have believed Fordyce was recording private conversations in violation of the statute. The evidence before the district court supports a claim that the officers arrested Fordyce for committing in their presence what they believed was a misdemeanor. Accordingly, all the individual police officer defendants are entitled to qualified immunity with respect to Fordyce's Sec. 1983 damages claims relating to his arrest.

We also affirm the district court's decision granting summary judgment to the City of Seattle, dismissing it from the Sec. 1983 damages claims. Fordyce failed to show that the City of Seattle was culpable by virtue of a "policy statement, ordinance, regulation, or decision officially adopted and promulgated by" Seattle that was itself unconstitutional. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). Fordyce also failed to show that any Seattle policy or any decision by a governmentally authorized decisionmaker was the moving force behind any deprivation of his constitutional rights. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986); Larez v. City of Los Angeles, 946 F.2d 630, 645-46 (9th Cir.1991).

Because our opinion reinstates Office Elster as a defendant in this case, however, we vacate and remand to the district court the issue of whether Seattle can be held vicariously liable under state law for Fordyce's state law tort damages claims against Officer Elster.

III. Declaratory and Injunctive Relief

The City of Seattle argues that the district court should not have granted declaratory relief because (1) Fordyce lacked standing; and (2) Fordyce never served the Attorney General of Washington State with a copy of his complaint. We vacate the district court's grant of declaratory relief because the procedure resulting in the award was flawed.

First, the City contends that declaratory relief was unwarranted because no "case or controversy" exists, and therefore the district court lacked subject matter jurisdiction. U.S. Const. art. III, Sec. 2. Seattle also argues that Fordyce did not have standing. We disagree with the City.

At the time Fordyce was arrested, and at...