Furfaro v. City of Seattle

• Decision Date: 02 August 2001
• Docket Number: No. 68971-7.,68971-7.
• Citation: 144 Wash.2d 363,27 P.3d 1160
• Parties: Nick FURFARO, Brandy Kidder, Esmeralda Silva, and JJR, Inc., Respondents, v. CITY OF SEATTLE, Petitioner.
• Court: Washington Supreme Court

27 P.3d 1160

144 Wash.2d 363

Nick FURFARO, Brandy Kidder, Esmeralda Silva, and JJR, Inc., Respondents, v. CITY OF SEATTLE, Petitioner.

No. 68971-7.

Supreme Court of Washington, En Banc.

Argued September 21, 2000.

Decided August 2, 2001.

Stafford, Frey, Cooper, Stephen Powell Larson, David Onsager, Seattle, for Petitioner.

Gilbert Henry Levy, Davis, Wright & Tremaine, P. Cameron De Vore, Kraig L. Baker, Seattle, for Respondents.

GUY, J.¹

Petitioner the City of Seattle (City) seeks review of a decision by the Court of Appeals, Division One, in Furfaro v. City of Seattle, 97 Wash.App. 537, 551, 984 P.2d 1055 (1999), which held that the warrantless arrests of respondents Nick Furfaro, Brandy Kidder, and Esmeralda Silva (Respondents) based on the nude dancers' alleged violation of Seattle Municipal Code (SMC) 6.270.100(A)(2) violated their rights afforded by the First and Fourteenth Amendments to the United States Constitution. After one of the defendant dancers was acquitted and the charges against the remaining defendants dismissed, Respondents sued the City and several officers individually. Respondents lost at the trial court level and appealed only one claim: for damages under the federal civil rights statute, 42 U.S.C. § 1983. The Court of Appeals reversed and remanded for a new trial, and the City petitioned for review by this court.

We affirm the judgment of the Court of Appeals but not its reasoning. We do not agree that the fact that the arrests of Respondents were accomplished without warrants violated their rights afforded by the First, Fourth, and Fourteenth Amendments to the United States Constitution. See Furfaro, 97 Wash.App. at 550-51, 984 P.2d 1055. Also, Respondents' 42 U.S.C. § 1983 claim for violation of rights secured by the Washington State Constitution fails to assert a section 1983 claim. Nevertheless, we remand for a new trial Respondents' claim against the City under 42 U.S.C. § 1983 because we find their case was prejudiced by an erroneous and misleading jury instruction. The instruction allowed the jury to ignore the exception for protected expression contained in SMC 6.270.100(C) and to find that the arresting officers had probable cause without the jury's considering whether there were reasonable grounds to believe that the conduct was obscene. The Respondents' claim, that their Fourth Amendment rights were violated because the officers lacked probable cause to make the arrests, was prejudiced by the erroneous instruction. Therefore, we reverse the trial court's judgment of dismissal and remand this case for a new trial consistent with this opinion.

FACTS

On November 20, 1995, two undercover officers of the Seattle Police Department entered Rick's, an adult nonalcoholic night-club in Seattle. Reporter's Transcript on Appeal (Rep. Tr.) (Dec. 10, 1997) at 146-47; Furfaro, 97 Wash.App. at 539, 984 P.2d 1055. The officers were to look for violations of the standards of conduct ordinance. Rep. Tr. at 147 (Dec. 10, 1997). One of the detectives observed the stage dancers inside the club and tape-recorded his observations. Furfaro, 97 Wash.App. at 542, 984 P.2d 1055. Typical of the recorded observations is this example: "Gabrielle on the main stage black sparkling string bikini. She touched her anus, buttocks, massaged her breasts. Gabrielle has long brown hair, slightly on the heavy side." Opening Br. of Appellants at A-27 (Swanson Tape). After making these observations the detective left and met with other officers. Furfaro, 97 Wash.App. at 542, 984 P.2d 1055. The officers returned to Rick's and arrested 13 dancers, including Kidder and Silva, and the club manager, Rick Furfaro. Id. at 539, 542, 984 P.2d 1055. The arrests were made without a warrant. Id. at 539, 984 P.2d 1055.

On July 15, 1996, one of the dancers was tried and acquitted in Seattle Municipal Court; the City dismissed the charges against the other defendants. Id. at 539, 984 P.2d 1055. Furfaro, Kidder, and Silva then sued the City and several individual police officers. Id. at 539-40, 984 P.2d 1055. In a summary judgment order, issued on July 3, 1997, the trial court, among other actions, dismissed Respondents' state tort claims, found as a matter of law that warrants were not needed to arrest Respondents, found the individually named defendants were entitled to qualified immunity, and reserved for trial the issues of (1) whether Kidder's and Silva's activities on stage were conduct or expression and if expression, whether they were obscene, and (2) Respondents' claim for injunctive and declaratory relief. Clerk's Papers at 562-63. The jury found that police did have probable cause to arrest Respondents for violating SMC 6.270.100. Furfaro, 97 Wash.App. at 540,984 P.2d 1055. Judgment on the jury verdict was issued on January 23, 1998. Clerk's Papers at 893-94. On February 10, 1998, the trial court also denied Respondents' motion for judgment as a matter of law or in the alternative denied a new trial. Clerk's Papers at 928-29.

On appeal, only Respondents' claim for damages under 42 U.S.C. § 1983 was at issue. Furfaro, 97 Wash.App. at 540, 984 P.2d 1055. The Court of Appeals held that the police should have obtained a warrant for the arrests and that Respondents were entitled as a matter of law to an instruction that the warrantless arrest was a deprivation of their rights under the United States Constitution. Id. at 540-41, 984 P.2d 1055. The appeals court reversed the judgment of dismissal and remanded for a new trial. Id. at 541, 984 P.2d 1055. The court also revived Respondents' claims for injunctive and declaratory relief under the state and federal constitutions and remanded these claims for further proceedings. Id. at 552, 984 P.2d 1055. The trial court's dismissal of Respondents' damage claim against the individual defendants was affirmed. Id. The City filed a petition for review on December 6, 1999, assigning error to the Court of Appeals' decision and urging reversal.

ISSUES

(1) Were the warrantless arrests of Furfaro, Kidder, and Silva for violations of SMC 6.270.100 a deprivation as a matter of law of their rights under the First and Fourteenth Amendments of the United States Constitution?²

(2) May a person filing a claim under 42 U.S.C. § 1983 recover for the deprivation of rights secured by the Washington State Constitution and Washington law?

(3) Did the police officers have probable cause to make arrests under SMC 6.270.100 when they arrested the performers for conduct without determining whether the conduct was protected expression under SMC 6.270.100(C)?

DISCUSSION

The Court of Appeals in Furfaro held that warrantless arrests under SMC 6.270.100(A)(2) are a prior restraint, and therefore unreasonable under the Fourth Amendment. Furfaro, 97 Wash.App. at 550, 984 P.2d 1055. The Court of Appeals concluded that before making arrests for violations of the ordinance, the City must obtain a judicial determination of probable cause in which the court is able to focus searchingly on the question of obscenity. Id. at 539, 984 P.2d 1055. On the other hand, in its petition for review the City assigned error to the appeals court's conclusion that a warrant was required. Pet. for Review at 2. The City argues that the appeals court's holding that live performances are entitled to the same protection under the First Amendment as that afforded to books and films has no legal precedent. Pet'r's Suppl. Br. at 19. According to the City, the United States Supreme Court has refused to extend presumptive First Amendment protection to all activities that occur on a stage (Pet. for Review at 11-12 (citing Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Arcara v. Cloud Books, Inc., 478 U.S. 697, 705, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 571-72, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991))), and has reiterated that conduct by adult entertainers is not entitled to the same protections as books, films, and political speech in City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Pet'r's Suppl. Br. at 19.

The Court of Appeals itself recognized that there is little authority to support a warrant requirement in cases such as this one. Although the United States Supreme Court in Roaden v. Kentucky, 413 U.S. 496, 504, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), held that a seizure of a film from a commercial theater without first obtaining a warrant was a prior restraint and hence unreasonable, the "Supreme Court has not yet decided whether a warrant requirement similarly applies to arrests of persons for activities arguably protected by the First Amendment." Furfaro, 97 Wash.App. at 543,984 P.2d 1055. In a case discussed by the Furfaro court, Maryland v. Macon, 472 U.S. 463, 465-66, 471, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985), the Supreme Court assumed without deciding that the warrantless arrest of a clerk in an adult bookstore was an unreasonable seizure: "We leave to another day the question whether the Fourth Amendment prohibits a warrantless arrest for the state law misdemeanor of distribution of obscene materials." Id. at 471, 105 S.Ct. 2778.

The case to be made for a warrant requirement for the arrest of persons involved in category of live performances called nude dancing is even weaker than it is for persons involved with books and film because such performances receive less protection under the First Amendment than do books and film. The Furfaro court cites Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), as supporting the proposition that live performances are entitled to the same First Amendment protection against censorship as are books and film. Furfaro, 97 Wash.App. at 544,984 P.2d 1055. But the Court in Salem Inn assigned a low level of protection to the kind of live performances, i.e., nude dancing, at issue: "Although the customary `barroom' type of nude dancing...