Is a conversation "private" under Washington's Privacy Act when the speaker talks with his windows rolled even though he sees someone is beside his car, listening to him?
[Ed's note: This case does not add much to our understanding of section 1983. Since its facts are illustrative of modern law enforcement, I present the facts for you.]
The undisputed facts show that on January 28, 2000, Johnson was videotaping several of his friends at Sequim’s public skateboard park when he noticed Chief Nelson drive up to the park in his patrol vehicle. Chief Nelson, who was on duty and had come to the park to look for a missing juvenile, stopped his patrol car in the park’s parking lot about seventy-five feet away from where Johnson was standing on an elevated cement ramp. From this distance, Chief Nelson observed Johnson videotaping him as he sat in his vehicle with his driver’s side window rolled down. After a short time, Johnson stopped recording Chief Nelson and approached the car. As Johnson approached, Chief Nelson’s police radio “was operating” and he was “dialing [his] cellular phone” to contact dispatch to obtain a description of the runaway he was attempting to locate. Johnson resumed videotaping when he reached the rear of the car. As Johnson came around to the passenger side of the car, Chief Nelson rolled down the passenger window, deactivated his cellular phone, and asked Johnson “What do you think you’re doing?” Although Johnson stopped recording Chief Nelson, he continued to point his video camera at Chief Nelson, who twice told Johnson to stop because Johnson “did not have [ ] permission to record [him] and . . . it was a violation of the law to record conversations without consent.” After the second warning, Chief Nelson got out of his car and “contacted” with Johnson, physically struggling with him to obtain the video camera. With the assistance of another officer, whom he had called for backup, Chief Nelson placed Johnson under arrest and transported him to the Clallam County Jail in Port Angeles.
After Johnson had spent three days in county jail, prosecutors filed a criminal complaint against him, charging one count of recording communication without permission, in violation of the Privacy Act, and one count of resisting arrest. Prosecutors also moved for a determination of probable cause, based solely upon a declaration from Chief Nelson that Johnson videotaped him “while [he] was making telephone contact with dispatch in an attempt to verify juvenile runaway information.” Although the state court found probable cause for the arrest, Johnson was released and the charges were dropped. Nearly two months later, prosecutors again filed charges against Johnson, this time for “attempted recording communication without permission” and for resisting arrest. On May 10, 2000, Judge Coughenour of the Clallam County District Court dismissed the charges against Johnson. Judge Coughenour found that Chief Nelson was not engaged, by cellular phone or police radio, in any conversation or communication with anyone while Johnson was recording him, and that Johnson therefore could not have “inten[ded] to record a conversation that [was not] occurring.” Moreover, Judge Coughenour found that even if Chief Nelson had been involved in a communication in his vehicle, there was no expectation of privacy because he had voluntarily exposed any such communication to the public by parking his vehicle in a public place with the windows rolled down.