Fordyce v. City of Seattle

• Citation: 840 F. Supp. 784
• Decision Date: 29 July 1993
• Docket Number: No. C92-75WD.,C92-75WD.
• Parties: Jerry Edmon FORDYCE, Plaintiff, v. CITY OF SEATTLE, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

840 F. Supp. 784

Jerry Edmon FORDYCE, Plaintiff, v. CITY OF SEATTLE, et al., Defendants.

No. C92-75WD.

United States District Court, W.D. Washington, at Seattle.

July 29, 1993.

COPYRIGHT MATERIAL OMITTED

James E. Lobsenz, Carney, Stephenson, Badley, Smith & Spellman, Seattle, WA, for plaintiff.

Anne Melani Bremner, Stafford, Frey, Cooper & Stewart, Seattle, WA, for defendants City of Seattle, M.S. Donnelly, Jane Doe Donnelly, C. Villagracia, Jane Doe Villagracia, J.B. Craig, Jane Doe Craig, S. Knechtel, Jane Doe Knechtel, Sgt. Martin, Jane Doe Martin and John Does, 1 through 25.

Marshall J. Nelson, Davis Wright Tremaine, Seattle, WA, for amici curiae Allied Daily Newspapers of Washington, Washington State Ass'n of Broadcasters and Washington Newspapers Publishers Ass'n.

Michael E. Kipling, Graham & Dunn, Seattle, WA, for amicus curiae American Civil Liberties Union of Washington (ACLU).

James Kendrick Pharris, Attorney General's Office, Olympia, WA, for amicus curiae State of WA.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

DWYER, District Judge.

I. INTRODUCTION

Plaintiff Jerry Edmon Fordyce has sued the City of Seattle and eight of its police officers over events that took place on August 5, 1990. On that date plaintiff spent several hours videotaping a public demonstration in downtown Seattle. He alleges that the police subjected him to "repeated acts of harassment, intimidation, abuse, assault and battery." The defendants deny this. At the end of the day plaintiff was arrested for allegedly recording a private conversation in violation of a state statute. He was booked, spent several hours in jail, and was released early the next morning. Plaintiff asserts claims under 42 U.S.C. § 1983 for alleged deprivations of his rights under the First, Fourth, and Fourteenth Amendments, and pendent state claims of false arrest, false imprisonment, and assault and battery. He seeks damages and an injunction. See Amended Complaint, Dkt. # 26. The defendants deny any violations of law in their dealings with plaintiff, and the officer defendants assert the defense of qualified immunity under both federal and state law. See Answer, Dkt. # 9.

Defendants now move for summary judgment dismissing all claims. Plaintiff moves for partial summary judgment as to liability against four of the officers and for an injunction against the city. Oral argument on the motions was heard on June 7, 1993. After the hearing the court invited and received three briefs filed in behalf of the Attorney General of the State of Washington, Allied Daily Newspapers of Washington, the Washington Association of Broadcasters, the Washington Newspaper Publishers Association, and the American Civil Liberties Union of Washington, as friends of the court. The parties have replied to the amicus curiae briefs, and plaintiff has been allowed to supplement the record with additional deposition excerpts. All materials filed and arguments made have been fully considered.

II. SUMMARY JUDGMENT STANDARD

Summary judgment under Fed.R.Civ.P. 56 may be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. An issue of material fact is one that affects the outcome of the case and requires a trial to resolve differing versions of the truth. Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1305-06 (9th Cir.1982). In deciding the motion the court views the evidence in the light most favorable to the non-moving party, and draws all reasonable inferences in that party's favor. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir.1987). However, the non-moving party must respond to an adequately supported motion by showing that a genuine issue of material fact exists; if the response falls short of that, summary judgment should be granted. Fed. R.Civ.P. 56(e); T.W. Elec. Serv., Inc., 809 F.2d at 630-31.

III. SUMMARY OF UNDISPUTED FACTS

In the present case there are no genuine issues of material fact for trial, and the matter can be fully decided on the motions for summary judgment.

There is an unusually vivid piece of evidence in the record. It is a videotape made by plaintiff himself that shows much of what happened on August 5, 1990. The tape is an exhibit to plaintiff's affidavit and also appears as Exhibit 4 to the affidavit of Ted Buck. Anyone reviewing this record should watch the videotape, which depicts most of the events in question.

The videotape and the other evidence of record show the following facts without dispute:

The demonstration of August 5, 1990, was organized by the "Shut Down the Clamp Down" coalition, of which plaintiff was a member. Plaintiff volunteered to videotape the demonstration for "local television production." The demonstration coincided with the closing ceremony of the Goodwill Games and protested a Seattle city ordinance known as the "drug loitering law." Plaintiff has explained that his own interest centered on "the intrusion of Pentagon security into Seattle during the Goodwill Games," which "some of us feared would degenerated sic into maintained detention centers" at which "dissident U.S. citizens such as ourselves" would be confined. Fordyce Deposition at 16-17.

The demonstration group paraded around downtown Seattle in the afternoon and evening, chanting or shouting such messages as "Fuck the police!" "Fight the power!" "Pigs aren't kosher!" and "Police, you can't hide, we charge you with genocide!" There were repeated attempts to provoke the police. At one point, demonstrators threw a pig's head wrapped in an American flag at several officers. Flags were burned. Strident speeches calling for revolutionary action were made through bull-horns.

Plaintiff's videotaping continued for several hours. Some of the taping was of demonstrators making speeches or being interviewed, and some was of police officers in the street on foot or on horseback. The Seattle police generally reacted to the demonstrators, and to the plaintiff, in a calm and professional manner. At one point an officer being filmed stepped toward the plaintiff and roared at him in what was obviously a joking way. At other points plaintiff's camera appears to have been jostled as he waded through groups of officers or pedestrians. During these events plaintiff repeatedly said on the soundtrack that he had been "assaulted."

Near the end of the day plaintiff got into an altercation with a pedestrian, Judy Worley, and her two nephews, ages twelve and thirteen. Ms. Worley and her nephews were on the sidewalk or street; whether they were watching the demonstration, or downtown for other purposes, is not clear. Plaintiff videotaped them from close range. Mrs. Worley asked him to stop. When he did not, Ms. Worley approached him angrily, apparently to hit him or his camera. A voice, apparently that of an officer, called out, "Hey, hey, hey. Take it easy over there." Ms. Worley complained to the officers that plaintiff was videotaping her nephews and would not stop. Further words were exchanged, during which an officer told plaintiff that a state statute made it a misdemeanor to record a private conversation without consent; plaintiff contended he had been assaulted by one of the young boys; and plaintiff said he was in a public place and continued taping.

At this point plaintiff was arrested, booked, and jailed. The police report states:

On 8-5-90 at about 2300 hours. Officer C. Villagracia received a complaint from victim Worley that Mr. Fordyce was vidio-recording sic her nephews, Michael 13 & Dominic Simpson 12. Mr. Fordyce was advised that it was permissable sic to photograph anyone, but that it was a criminal offense to record a private conversation. He ignored the warning an continued to record our conversation with the VHS camera/recorder. He was placed under arrest.

Affidavit of J. Lobsenz, Knechtel Deposition Excerpts, Exh. 1.

Plaintiff was released early the next morning. On October 1, 1990, the case against him was dismissed on the prosecutor's motion.

IV. CLAIMS BASED ON EVENTS PRIOR TO ARREST

Plaintiff's claims based on events prior to his arrest are easily resolved. These claims have not been abandoned, but were not mentioned by counsel in oral argument on the summary judgment motions. The undisputed facts show that plaintiff continued videotaping for hours in the presence of Seattle police officers, often taping the officers themselves. There was no interruption of or interference with his activity. He had full access to the public events of August 5, 1990, equal to that afforded to all media. There is no evidence that would permit a rational jury to find that he was assaulted. When the record is viewed in the light most favorable to plaintiff, it contains nothing that could support a verdict in his favor on a section 1983 claim, or on any pendent state claim, in regard to the events preceding the arrest. Further, as to those events, the officer defendants are immune from suit under both federal and state law, on the bases described below. Summary judgment for defendants must be entered on all claims based on events preceding the arrest.

V. QUALIFIED IMMUNITY AS TO SECTION 1983 CLAIMS

Sections V, VI, and VII of this order deal with the motions for summary judgment dismissing the claims based on the arrest.

The officer defendants contend, first, that the rule of qualified immunity shields them from plaintiff's claims brought under 42 U.S.C. § 1983.

Qualified immunity is "an immunity from suit rather than a mere defense to liability" and "ordinarily should be decided by the court long before trial." Hunter v. Bryant, ___ U.S. ___, ___ - ___, 112 S.Ct. 534, 536-37, 116 L.Ed.2d 589 (1991). An officer is immune from suit under section 1983 "if a reasonable officer could have believed his conduct to be lawful." Id. ___ U.S. at ___, 112 S.Ct....