Furfaro v. City of Seattle

• Decision Date: 27 September 1999
• Docket Number: No. 43409-8-I.,43409-8-I.
• Citation: 984 P.2d 1055,97 Wash.App. 537
• Parties: Nick FURFARO, Brandy Kidder, Esmerelda Silva, and JJR, Inc., Appellants, v. CITY OF SEATTLE; Steve Butler and Jane Doe Butler; Dan Oliver and Jane Doe Oliver; Mike Nelson and Jane Doe Nelson; and Richard Niemic and Jane Doe Niemic, Respondents.
• Court: Washington Court of Appeals

984 P.2d 1055

97 Wash.App. 537

Nick FURFARO, Brandy Kidder, Esmerelda Silva, and JJR, Inc., Appellants, v. CITY OF SEATTLE; Steve Butler and Jane Doe Butler; Dan Oliver and Jane Doe Oliver; Mike Nelson and Jane Doe Nelson; and Richard Niemic and Jane Doe Niemic, Respondents.

No. 43409-8-I.

Court of Appeals of Washington, Division 1.

September 27, 1999.

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

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

BECKER, J.

The First Amendment protects non-obscene nude dance performances in an adult nightclub. Before making arrests for violations of a standards of conduct ordinance that prohibits stage dancers from sexual self-touching during a performance, a municipality must obtain a judicial determination of probable cause in which the court is able to focus searchingly on the question of obscenity. Without a warrant, such arrests operate as a prior restraint and a form of unconstitutional censorship. The appellants' federal civil rights damage claim is reinstated and allowed to proceed on the theory that their warrantless arrests were a constitutional deprivation as a matter of law.

SUMMARY

On the afternoon on November 20, 1995, Seattle police went to Rick's, an adult nonalcoholic nightclub in Seattle operated by JJR, Inc. under an adult entertainment license issued by the City of Seattle. Without first obtaining a warrant, they arrested thirteen entertainers and the club manager, Rick Furfaro, for misdemeanor violations of Seattle's standards of conduct ordinance for adult entertainment establishments. The police required the dancers to change clothes and hand over their costumes as evidence. Afterwards, the dancers were handcuffed and transported to the King County Jail. Furfaro closed the club temporarily while the police processed the arrests.

The City tried one of the dancers in Seattle Municipal Court on July 15, 1996. A jury acquitted her. The City then dismissed the charges against the other defendants.

Furfaro and two of the dancers, Brandy Kidder and Esmerelda Silva, then sued the City and several individual police officers for damages. They also sought injunctive and declaratory relief to prevent the defendants from continuing to deprive them of rights protected by the federal and state constitutions. Ruling on pretrial motions for summary judgment, the trial court rejected as a matter of law the plaintiffs' assertion that the failure of the police to obtain a warrant for the arrests made the arrests unlawful. The court held that the individual police officers were entitled to qualified immunity. The court allowed a jury to decide whether the police had probable cause to arrest the plaintiffs for violating the standards of conduct. The jury found the police did have probable cause. The trial court entered a judgment on the verdict. Appellants moved for judgment as a matter of law or, in the alternative, a new trial. They reasserted their argument that a warrant was required. The trial court denied the motion, and this appeal followed.

In this appeal, only the appellants' claim for damages under the federal civil rights statute, 42 U.S.C. § 1983, is at issue. The trial court dismissed all state law tort claims due to the appellants' failure to comply with the claim filing requirement of RCW 4.96.020(4), a ruling to which they have not assigned error. The trial court found that the plaintiffs' requests for injunctive and declaratory relief under the State Constitution remained viable despite noncompliance with the claim-filing statute, but nevertheless dismissed claims for injunctive and declaratory relief under both the state and federal constitutions along with all other claims in the judgment of dismissal entered after the trial.

The order denying the motion for a new trial was predicated upon a ruling of law. Therefore, no element of discretion is involved and our task as an appellate court is to determine whether applicable legal principles support the trial court's ruling. See Sweek v. Metro. Seattle, 45 Wash.App. 479, 482, 726 P.2d 37 (1986)

.

We conclude that the police should have first obtained a warrant for the arrests, and that the plaintiffs 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. Because the trial court's erroneous pretrial ruling that no warrant was necessary shaped the rest of the trial to the prejudice of the appellants, we reverse the judgment of dismissal and remand for a new trial.

BACKGROUND

Rick's has two stages for nude dancing. The stages are eighteen inches off the ground and six feet from the nearest customer as required by the ordinance, Seattle Municipal Code (SMC) 6.270.100(A)(1), and are surrounded by flashing lights. The entertainers wear costumes usually consisting of a bra and panties. The music is prerecorded. A disc jockey in a booth announces which entertainer will be performing on stage. The entertainers perform in rotation, going from one stage to another. Each stage performance typically lasts two to three minutes and consists of a rhythmic dance routine including a strip tease. Entertainers can earn money if their stage dances inspire patrons to request and pay for individual table dances. Entertainers may not mingle with patrons while in a state of undress, and may not at any time engage in any type of sexual conduct or fondling with other persons. SMC 6.270.100(A)(3),(4), and (5).

The section of the ordinance under which Kidder and Silva were arrested prohibits entertainers from touching their private areas or simulating intercourse, masturbation, and other sexual acts. SMC 6.270.100(A)(2). The section under which Furfaro was arrested makes managers responsible for the dancers' violations. SMC 6.270.100(A)(12). On the afternoon of the arrests, a detective spent about an hour in the nightclub as part of a planned undercover police operation targeted at the stage dancers at Rick's. His assignment was to watch the stage dancers and look for behaviors that violated the Seattle ordinance, specifically breast and genital touching and simulated masturbation. Neither the detective nor any other officer involved in the operation was directed to evaluate the performance as a whole or to make any judgment about whether it was obscene.

Observing the stage dances inside the club, the detective covertly tape-recorded his observations. He described an entire rotation of fourteen dancers, noting for each one her stage name, a description of her costume, and the conduct violations he observed. He reported on the first two dancers, for example, as follows:

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.

Silver is on the main stage. She is wearing white t-bar panties, white silky top. She has short blonde hair and a tattoo on her left upper arm and one on her left calf. She just massaged her breasts, pinched her nipples and is now massaging her vagina.

The detective later testified in the criminal trial of one of the entertainers that each instance of self-touching he observed lasted two or three seconds. He described the performances as "dances" and said he found little difference between one dance and another.

After recording his observations, the detective left the club and met with other police officers to match the dancers with their entertainment licenses. Later that day, after deciding that thirteen of the dancers observed by the detective had engaged in conduct prohibited by the ordinance, the police returned and made the arrests. The City took one case to trial. After the trial ended with a jury verdict acquitting the dancer, the City dismissed charges against the other defendants, and the plaintiffs instituted the suit that is the subject of this appeal.

WARRANT REQUIREMENT

Because of the risk of prior restraint and censorship, the First Amendment imposes special constraints on searches for and seizures of materials that are presumptively protected as expression. Marcus v. Search Warrants, 367 U.S. 717, 731-32, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Recognizing the complexity of the obscenity test, the United States Supreme Court has held that a warrant to seize allegedly obscene published materials may not be issued based merely on a police officer's conclusory assertion that the content is obscene, but must be sufficiently particularized to enable the issuing magistrate to "focus searchingly on the question of obscenity." Marcus, 367 U.S. at 732, 81 S.Ct. 1708; New York v. P.J. Video, Inc., 475 U.S. 868, 873-74, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986). Whether a seizure of materials that are presumptively protected under the First Amendment is reasonable under the Fourth Amendment must be examined in the light of the values of freedom of expression. For this reason, the government may not seize a film from a commercial theater regularly open to the public without first obtaining a warrant. Such a seizure is unreasonable, "not simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness." Roaden v. Kentucky, 413 U.S. 496, 504, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973).

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. In Maryland v. Macon, 472 U.S. 463, 465-66, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985), a clerk in an adult bookstore appealed his conviction for distributing obscene materials. The police had arrested him without a warrant after purchasing two magazines and concluding they were obscene. The Supreme Court...