Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 68971-7
Title of Case: Nick Furfaro, et al.
v.
City of Seattle, et al.
File Date: 08/02/2001
Oral Argument Date: 09/21/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
King County;
96-2-02226-8
Honorable Carol Schapira, Judge.
JUSTICES
--------
Authored by Richard P. Guy
Concurring: Charles Z. Smith
Barbara A. Madsen
Faith E Ireland
Bobbe J. Bridge
Richard B. Sanders
Gerry L. Alexander
Charles W. Johnson
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Stephen P. Larson
Stafford Frey Cooper
2500 Rainier Twr
1301 5th Ave
Seattle, WA 98101-2603
David J. Onsager
Stafford Frey Cooper
2500 Rainier Tower
1301 5th Ave
Seattle, WA 98101-2621
Counsel for Respondent(s)
Gilbert H. Levy
Attorney At Law
2001 Western Ave
Ste 200
Seattle, WA 98121
P. C. De Vore
Davis Wright Tremaine (typists--P. Cameron De Vore)
Ste 2600
1501 4th Ave.
Seattle, WA 98101-1662
Kraig L. Baker
Davis Wright Tremaine
2600 Century Square
1501 4th Ave
Seattle, WA 98101-1688
Gilbert H. Levy
Attorney At Law
2001 Western Ave
Ste 200
Seattle, WA 98121
P. C. De Vore
Davis Wright Tremaine (typists--P. Cameron De Vore)
Ste 2600
1501 4th Ave.
Seattle, WA 98101-1662
Kraig L. Baker
Davis Wright Tremaine
2600 Century Square
1501 4th Ave
Seattle, WA 98101-1688
Gilbert H. Levy
Attorney At Law
2001 Western Ave
Ste 200
Seattle, WA 98121
P. C. De Vore
Davis Wright Tremaine (typists--P. Cameron De Vore)
Ste 2600
1501 4th Ave.
Seattle, WA 98101-1662
Kraig L. Baker
Davis Wright Tremaine
2600 Century Square
1501 4th Ave
Seattle, WA 98101-1688
Gilbert H. Levy
Attorney At Law
2001 Western Ave
Ste 200
Seattle, WA 98121
P. C. De Vore
Davis Wright Tremaine (typists--P. Cameron De Vore)
Ste 2600
1501 4th Ave.
Seattle, WA 98101-1662
Kraig L. Baker
Davis Wright Tremaine
2600 Century Square
1501 4th Ave
Seattle, WA 98101-1688
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
NICK FURFARO, BRANDY KIDDER,
ESMERALDA SILVA, and JJR, INC.,
NO. 68971-7
Respondents,
EN BANC
v.
CITY OF SEATTLE, Filed August 2, 2001
Petitioner.
GUY, J.--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
Wn. 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. sec. 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 Wn. App. at 550-51. Also, Respondents' 42 U.S.C. sec. 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. sec. 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 nightclub in Seattle.
Reporter's Transcript on Appeal (Rep. Tr.) (Dec. 10, 1997) at 146-47;
Furfaro, 97 Wn. App. at 539. 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 Wn. App. at 542. 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
Wn. App. at 542. The officers returned to Rick's and arrested 13 dancers,
including Kidder and Silva, and the club manager, Rick Furfaro. Id. at
539, 542. The arrests were made without a warrant. Id. at 539.
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. Furfaro, Kidder, and Silva then sued the City and
several individual police officers. Id. at 539-40. 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 Wn. App. at
540. 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. sec. 1983
was at issue. Furfaro, 97 Wn. App. at 540. 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. The appeals court reversed the
judgment of dismissal and remanded for a new trial. Id. at 541. 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. 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?1
(2) May a person filing a claim under 42 U.S.C. sec. 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 Wn. App. at 550. 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. 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 Wn. App. at 543.
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.
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 Wn. App.
at 544. 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 may involve only the barest
minimum of protected expression, we recognized in California v. LaRue, 409
U.S. 109, 118{, 93 S. Ct. 390, 34 L. Ed. 2d 342} (1972), that this form of
entertainment might be entitled to First and Fourteenth Amendment
protection under some circumstances.' Salem Inn, 422 U.S. at 932 (emphasis
added).2 The Salem Inn Court sustained a district court's preliminary
injunction enjoining enforcement of a local ordinance which prohibited
topless dancing bars; the Court agreed with the district court not because
it wished to protect nude dancing but because the ordinance was overbroad
and would have prohibited ''the performance of the 'Ballet Africains' and a
number of other works of unquestionable artistic and socially redeeming
significance.'' Id. at 933 (quoting Salem Inn, Inc. v. Frank, 364 F. Supp.
478, 483 (1973), aff'd, 501 F.2d 18 (2d Cir. 1974)). In subsequent cases a
divided Court continued to find support for only a minimal level of
protection for nude dancing. In Barnes v. Glen Theatre, Inc., 501 U.S. at
566, the plurality opinion agreed that 'nude dancing of the kind sought to
be performed here is expressive conduct within the outer perimeters of the
First Amendment, though we view it as only marginally so.'3 Justice
O'Connor's plurality opinion in Pap's A.M. continues the assignment of low
value to this kind of entertainment: 'nude dancing of the type at issue
here is expressive conduct, although we think that it falls only within the
outer ambit of the First Amendment's protection.' Pap's A.M., 529 U.S. at
284.4 The Furfaro court correctly points out that decisions of this court
have stated that the First Amendment does protect nude dancing. Furfaro,
97 Wn. App. at 544. However, this court's statements to that effect have
been carefully qualified. In O'Day v. King County, 109 Wn.2d 796, 803, 749
P.2d 142 (1988), this court said, citing Kitsap County v. Kev, Inc., 106
Wn.2d 135, 140, 720 P.2d 818 (1986), that 'although the First Amendment
protects the communication and expression of a nude dancer, public nudity
itself is conduct subject to regulation.' Moreover, Barnes and Pap's A.M.,
United States Supreme Court cases decided subsequent to O'Day, are more
authoritative indications of the amount of protection given to nude dancing
by the First and Fourteenth Amendments to the United States Constitution.
With respect to the issue of whether a violation of the Fourth Amendment
occurred because the arrests were a prior restraint and hence unreasonable,
the Court of Appeals once again concedes that authority for its position is
scant: 'Neither the United States Supreme Court nor any Washington court
has decided whether warrantless arrests of nude dancers in an adult
nightclub are a prior restraint.' Furfaro, 97 Wn. App. at 548. Only one
decision from a court in a foreign jurisdiction, People v. Adais, 114 Misc.
2d 773, 452 N.Y.S.2d 543 (N.Y.C. Crim. Ct. 1982), has found such an arrest
to be a prior restraint. An earlier decision, People v. Morgan, 86 Misc.
2d 377, 382, 382 N.Y.S.2d 666 (N.Y.C. Crim. Ct. 1976) of the same court
came to the opposite conclusion.
The Court of Appeals also recognized, in its discussion of the qualified
immunity issue, that the warrant requirement was not clearly established.
The appeals court agreed that the trial court properly dismissed the claims
against individual police officers because the officers had qualified
immunity. Furfaro, 97 Wn. App. at 552. Qualified immunity protects
government officials from civil liability ''insofar as their conduct does
not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.'' Id. at 551-52 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)).
Qualified immunity is appropriate in this case precisely because the right
violated was not clearly established: 'The contours of the right to
perform a nude stage dance without fear of warrantless arrest are not
clearly established. The lower courts from other states where the issue
has been confronted have reached inconsistent results.' Id. at 552.
Respondents argue that warrants are required to make the arrests because
nude dancing receives the same protection under the First Amendment as do
books and film. Roaden, 413 U.S. at 504, held that the police seizure of
books or films without a constitutionally sufficient warrant is a form of
prior restraint and unreasonable under the Fourth Amendment. Respondents
point out that other courts have extended this warrant requirement to the
arrests of those accused of possessing or distributing books or films.
Answer to Pet. for Review at 14-15. See, e.g., Penthouse Int'l v.
McAuliffe, 610 F.2d 1353, 1359 (5th Cir. 1980). The final step of
Respondents' argument asserts that because the Supreme Court in
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S. Ct.
1239, 43 L. Ed. 2d 448 (1975), held that live drama receives the same level
of First Amendment protection as do other forms of expression, live
entertainers are entitled to be free from warrantless arrests. Answer to
Pet. for Review at 16-19.
It is not at all clear, however, that Southeastern applies to nude dancing.
The case arose when the directors of a municipal theater denied a promoter
permission to put on a performance of the rock musical 'Hair.'
Southeastern, 420 U.S. at 547-48. The Court held such a denial was a prior
restraint. Id. at 552. Although Respondents would like this case to
announce protection for 'live performances' or 'live entertainment' (Answer
to Pet. for Review at 16, 18-19), Southeastern appears to deal with a
category of expression which excludes the kind of nude dancing at issue in
Furfaro. The Court used terms such as 'live drama' and 'theater' to
describe the kind of expression being affected and said that 'theater
usually is the acting out--or singing out--of the written word, and
frequently mixes speech with live action or conduct.' Southeastern, 420
U.S. at 557-58. Despite the live action or conduct aspects of theater, the
Court based the protection given to theater on its verbal elements. Id.
This reasoning applies to 'Hair,' but appears not to apply to the nonverbal
nude dancing of the sort found in adult entertainment establishments. The
Court in Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65, 101 S. Ct. 2176,
68 L. Ed. 2d 671 (1981), did use the category 'live entertainment,'
including nude dancing, because the ordinance at issue prohibited all live
entertainment. The Court said that the appellants in Schad, operators of
an adult bookstore which featured live dancers performing behind a glass
panel, were entitled to rely on the impact of the ordinance on the
expressive activities of others as well as their own. Id. at 62, 66.
Because of the overbreadth of the ordinance, the Court set aside the
appellants' convictions without having to determine how much First
Amendment protection should be extended to nude dancing. Id. at 65, 66.
Therefore, the Supreme Court precedents cited by Respondents do not support
the claim that the First Amendment affords nude dancing the same level of
protection given to books and film.
Therefore, we decline to follow the reasoning of the Court of Appeals that
a warrant is required to arrest nude dancers for violations of SMC
6.270.100. Under 42 U.S.C. sec. 1983 damages are awarded for the
deprivation of rights secured by the United States Constitution and federal
law. The right to have a warrant issued before an arrest of this nature
can be made has not been established by prior case law. On the contrary,
the United States Supreme Court's reiterated opinion is that nude dancing
only receives minimal protection under the First Amendment. That level of
protection is insufficient to support the Court of Appeals' contention that
a warrant is required by the First and Fourth Amendments even though no
federal or Washington court had recognized such a requirement.
Having declined to follow the Court of Appeals in holding that the United
States Constitution requires that warrants be issued in order to make
arrests under SMC 6.270.100, we turn to Respondents' assertion that the
Washington Constitution also requires warrants.
As the Court of Appeals noted, '{i}n this appeal, only {Respondents'} claim
for damages under the federal civil rights statute, 42 U.S.C. sec. 1983, is
at issue.' Furfaro, 97 Wn. App. at 540. In addition to its claim that the
City violated the First Amendment of the United States Constitution,
Respondents also present, in the alternative, a claim under article I,
sections 5 and 7 of the Washington State Constitution. See Pl./Resp'ts'
Suppl. Br. at 4-12. The City contends that to the extent that Respondents
claim a violation of a state law provision that provides greater protection
than federal law, they have failed to assert a section 1983 claim. Pet'r's
Suppl. Br. at 29. The City objects to any portion of Respondents' claims
which depends on Washington State law. Id.
42 U.S.C. sec. 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.
The question before this court is whether the 'constitution and laws'
refers only to the United States Constitution and federal law or, in
addition, to state constitutions and laws.
To state a cause of action under section 1983, a plaintiff must show that
(1) the defendant acted under color of state law; and (2) that the
defendant deprived the plaintiff of rights secured by the Constitution or
federal law. See Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990)
(citing Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th
Cir. 1988)). See also Torrey v. City of Tukwila, 76 Wn. App. 32, 37, 882
P.2d 799 (1994). In Barry the plaintiff brought a section 1983 action,
complaining that under California law an officer may make a warrantless
misdemeanor arrest only if he has reasonable cause to believe that a person
has committed a misdemeanor in his presence, and that she did not commit
the act in his presence. Barry, 902 F.2d at 772. The Ninth Circuit
refused to consider whether a violation of California law occurred but only
whether there was a violation of the Fourth Amendment. Id. In rejecting
her claim, the court said she failed to allege a federal constitutional or
federal statutory violation. Id. at 773.
Because section 1983 allows for the recovery of damages for violation of
rights secured by the United States Constitution and federal law, a claim
under article I, sections 5 and 7 of the Washington State Constitution does
not come within the scope of 42 U.S.C. sec. 1983. We agree with the City
that Respondents' claim for relief under 42 U.S.C. sec. 1983 for violation
of rights under the Washington State Constitution fails to assert a section
1983 claim. In addition, Respondents' claim for violations of federal
rights may not be supported by Washington case law to the extent that the
case law depends upon the Washington Constitution.
We next consider whether the police officers had 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). The City claims that it had probable cause to make the
arrests for violations of SMC 6.270.100(A)(2) even though no determination
of obscenity pursuant to .100(C) and .100(D) was made. On the other hand,
the Court of Appeals agreed with Respondents that a consideration of
obscenity is essential to the determination of probable cause to arrest
under SMC 6.270.100(A)(2). Furfaro, 97 Wn. App. at 546. The relevant
portions of the ordinance read as follows:
A. The following standards of conduct must be adhered to by
employees of any adult entertainment premises:
. . .
2. No employee or entertainer shall perform acts of or acts which
simulate:
a. Sexual intercourse, masturbation, sodomy, bestiality, oral
copulation, flagellation, or any sexual acts which are prohibited by law;
b. The touching, caressing or fondling of the breasts, buttocks
or genitals; or
c. The displaying of the pubic region, anus, vulva or genitals;
. . .
C. This chapter shall not be construed to prohibit protected
expression, such as:
1. Plays, operas, musicals, or other dramatic works that are not
obscene;
2. Classes, seminars and lectures held for serious scientific or
educational purposes that are not obscene; or
3. Exhibitions, performances, expressions or dances that are not
obscene.
D. For purposes of this chapter, an activity is 'obscene' if:
1. Taken as a whole by an average person applying contemporary
community standards the activity appeals to a prurient interest in sex;
2. The activity depicts patently offensive representations, as
measured against community standards, of:
a. Ultimate sexual acts, normal or perverted, actual or
simulated, or
b. Masturbation, fellatio, cunnilingus, bestiality, excretory
functions, or lewd exhibition of the genitals or genital area; or violent
or destructive sexual acts, including but not limited to human or animal
mutilation, dismemberment, rape or torture; and
3. The activity taken as a whole lacks serious literary, artistic,
political, or scientific value.{5}
SMC 6.270.100(A)(2); (C)(1), (2), (3); (D)(1), (2), (3).
The police officers made arrests for violations of the standards of conduct
and did not consider obscenity or make arrests for expression. Pet. for
Review at 3-4, 5. The City argues that arrests for conduct under this
ordinance are allowed under O'Day and Everett v. Heim, 71 Wn. App. 392, 859
P.2d 55 (1993). Resp'ts Br. at 17-18; Rep. Tr. (Dec. 16, 1997) at 116,
130. Both cases involved ordinances nearly identical to the City's with
respect to the provisions at issue here; both ordinances contained
standards of conduct and an exception for nonobscene dance. See O'Day, 109
Wn.2d at 799-800; Heim, 71 Wn. App. at 394. This court in O'Day upheld the
constitutionality of the King County ordinance by construing it to restrict
only conduct and unprotected expression. O'Day, 109 Wn.2d at 806.
Similarly, under SMC 6.270.100, arrests may be made only for nonexpressive
conduct and for unprotected expression. Utilizing that framework, the
O'Day court agreed with the trial court that the performances engaged in by
the defendants, evidently table dances or lap dances, constituted pure
conduct unprotected by free expression guarantees. O'Day, 109 Wn.2d at 800
n.2, 803.
In a case decided last year, however, the Supreme Court stated clearly, for
perhaps the first time,6 that nude dancing is expressive conduct:
Being 'in a state of nudity' is not an inherently expressive
condition. As we explained in Barnes, however, nude dancing of the type at
issue here is expressive conduct, although we think that it falls only
within the outer ambit of the First Amendment's protection. See Barnes v.
Glen Theatre, Inc., 501 U.S., at 565-566 (plurality opinion); Schad v.
Mount Ephraim, 452 U.S. 61, 66 (1981).
Pap's A.M., 529 U.S. at 289 (plurality opinion) (emphasis added). Although
the Court's statement is qualified by the phrase 'of the type at issue
here,' its citation to other cases indicates it sees no relevant legal
difference between the kind of nude dancing at issue in Pap's A.M. and that
in Barnes and Schad. Hence, nude dancing of various sorts is, according to
the Court, expressive conduct. Moreover, according to Justice Scalia, the
kind of nude dancing at issue in Pap's A.M. was lap dancing. Pap's A.M.,
529 U.S. at 308 (Scalia, J., concurring). After Pap's A.M., nude dancing
is afforded the protection due to expressive conduct.
In Kidder's and Silva's case, if the performers were engaged in nude
dancing, their activities would fall under the category of expressive
conduct, not pure conduct. There is ample evidence in the record to
indicate that the performers were dancing; the detective present testified
to that effect. Rep. Tr. (Dec. 11, 1997) at 10. Thus, the performers were
engaged in expressive conduct which potentially falls under the exception
for protected expression in SMC 6.270.100(C). Since SMC 6.270.100(C) says
that '{t}his chapter shall not be construed to prohibit protected
expression,' before officers may make arrests for violation of the
standards of conduct in SMC 6.270.100(A), the arresting officers or a
judicial officer must make a determination, where expressive conduct is
involved, that the expressive conduct is obscene as defined in SMC
6.270.100(D). In order to have probable cause to arrest Kidder and Silva,
the City needed probable cause to believe that the dancers' expressive
conduct was obscene and hence unprotected by the exception in .100(C).
The City concedes that '{t}here was absolutely no evidence at trial
that any officer considered obscenity or made an arrest for expression.'
Pet. for Review at 5. However, that admission is not necessarily fatal to
its claim that its officers had probable cause to make the arrests.
''{P}robable cause' to justify an arrest means facts and circumstances
within the officer's knowledge that are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit
an offense.' Michigan v. DeFillippo, 443 U.S. 31, 36, 37, 99 S. Ct. 2627,
61 L. Ed. 2d 343 (1979). The Supreme Court 'described {United States v.}
Robinson{, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)} as having
established that 'the fact that the officer does not have the state of mind
which is hypothecated by the reasons which provide the legal justification
for the officer's action does not invalidate the action taken as long as
the circumstances, viewed objectively, justify that action.'' Whren v.
United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996)
(quoting Scott v. United States, 436 U.S. 128, 136, 138, 98 S. Ct. 1717, 56
L. Ed. 2d 168 (1978)). 'Subjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis.' Id. Even though no officer
determined that the activities of the performers was obscene, the arrests
are not invalidated as long as the facts and circumstances known to the
arresting officer, viewed objectively, justify that action. 'In general,
the existence of probable cause in a sec. 1983 action presents a jury
question, unless there is only one reasonable determination possible.'
Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995) (citing Yancey v.
Carroll County, 876 F.2d 1238, 1243 (6th Cir. 1989)). Here as long as the
jury, viewing the facts and circumstances known to the arresting officer,
determine that the performers' expressive conduct was obscene, they could
go on to find that the officer had probable cause to make the arrests.
The City makes the further concession that the officer recording violations
of the standard of conduct did not record any observations pertaining to
obscenity. Pet. for Review at 3-4. The transcript of the audiotape made
by the police detective contains observations related to violations of the
standards of conduct but with hardly any observations related to expression
at all. Opening Br. of Appellants at A-27 (Swanson Tape). He notes that
the performers are on stage, but does not even say that they are dancing.
Id. However, his trial testimony was more informative about the expressive
features of the conduct. For example, he described the appearance of the
stage and more of the dance routine of the performers including their use
of the walls, mirrors, and clothing. Rep. Tr. (Dec. 11, 1997) at 5-7.
More importantly, the jury was able to view a videotape made by one of the
dancers at the behest of her counsel, a videotape which purported to
represent what the stage dancing at Rick's looks like. Rep. Tr. (Dec. 10,
1997) at 38, 39, 47. Although the dancer in the videotape is not involved
in the present action, the detective testified that her dance moves were
similar to the dance moves of the other performers. Rep. Tr. (Dec. 11,
1997) at 7-8. He did complain that the videotape did not contain the
violations he saw on the day he recorded his observations. Id. at 15.
The jury appears to have significantly more information about the nature of
the dances than did the magistrate about the content of the films at issue
in New York v. P.J. Video, Inc., 475 U.S. 868, 106 S. Ct. 1610, 89 L. Ed.
2d 871 (1986). In that case P.J. Video complained that the judge issuing
the warrant to seize copies of their films did not have probable cause to
believe that the movies were obscene. Id. at 869-70. The judge did not
view the movies but issued the warrant on the basis of affidavits executed
by an investigator who did view the works. Id. at 870. The information
contained on each affidavit only went marginally further than the kind of
comments made on the audiotape of the police officer in this case. See id.
at 878-84. The Supreme Court found that the affidavits contained more than
enough information to support a conclusion that the movies satisfied all
three elements of the definition of obscenity, even the third one regarding
literary, artistic, political, and scientific value and hence that the
warrant was supported by probable cause. Id. at 876-77. Here the
transcript of the audiotape, the detective's testimony, and the videotape
of the typical dance done on Rick's stage are sufficient 'facts and
circumstances' for a jury to be able to make a determination as to whether
the dance was obscene, including whether the dance lacked artistic value.
But under this ordinance and in light of the facts of this case, a jury's
finding that there was probable cause to make arrests under the ordinance
must be supported by a determination that a reasonable person would believe
that the expression of the dancers was obscene and hence unprotected.
Respondents contend that the trial court committed error when it declined
to instruct the jury that consideration of obscenity was necessary to the
determination of probable cause; they argue that the supplemental
instruction to the jury was misleading and not a correct statement of the
law. Opening Br. of Appellants at 58. 'When reviewing a claim of error
relating to jury instructions, the court must give consideration to the
entire charge as a whole to determine whether the instruction is misleading
or incorrectly states the law to the prejudice of the objecting party.'
Maddox v. City of Los Angeles, 792 F.2d 1408, 1412 (9th Cir. 1986). ''An
erroneous instruction is not otherwise reversible unless the court is 'left
with a substantial and ineradicable doubt as to whether the jury was
properly guided in its deliberations.''' Binks Mfg. Co. v. Nat'l Presto
Indus., Inc., 709 F.2d 1109, 1117 (7th Cir. 1983) (quoting Johnson v.
Bryant, 671 F.2d 1276, 1280 (11th Cir. 1982) (quoting Miller v. Universal
City Studios, Inc., 650 F.2d 1365, 1372 (5th Cir. 1981))). ''The question
on appeal is not whether an instruction was faultless in every respect, but
whether the jury, considering the instruction as a whole, was misled. . . .
Thus, only in those cases where the reviewing court has a substantial doubt
whether the jury was fairly guided in its deliberations should the judgment
be disturbed.'' Aero Int'l, Inc. v. United States Fire Ins. Co., 713 F.2d
1106, 1113 (5th Cir. 1983) (quoting Mid-Texas Communications Sys., Inc. v.
AT&T, 615 F.2d 1372, 1390 n.16 (5th Cir. 1980)). 'A new trial is the
appropriate remedy for prejudicial errors in jury instructions.' Id.
During its deliberations, the jury sent the trial judge this inquiry: '#2.
In regards to determining 'probable cause' must we consider obsenity {sic}
e.g. can actions in section 'A' be allowed because of section 'C' in
Municipal Code 6.270.100.' Clerk's Papers at 878. The trial court
replied, '2) In determining probable cause, an arresting officer making an
arrest for expression, must consider obscenity. In determining probable
cause, an arresting officer making an arrest for conduct, need not consider
obscenity.' Id. The instruction incorrectly states the law because an
officer making an arrest for conduct must consider obscenity if the conduct
is expressive, as was the case here, and because a jury determining whether
an officer had probable cause to make the arrests here must consider
whether a reasonable person would believe that the expressive conduct was
obscene. Given the fact that the City stressed that the arrests were made
for conduct and not for expression (Rep. Tr. (Dec. 10, 1997) at 151-52;
Rep. Tr. (Dec. 11, 1997) at 43-45; Rep. Tr. (Dec. 17, 1997) at 67, 70), it
is likely that the instruction led the jurors to conclude that they did not
need to make a determination that a reasonable person would believe that
the dances were obscene in order to find that probable cause existed. If,
as seems likely, the jurors so concluded, the exception in SMC 6.270.100(C)
becomes a nullity, and the protection potentially afforded to Respondents
under the ordinance was mistakenly denied.
Because of our substantial doubt that the jury was fairly guided and
because we find the error prejudicial to Respondents, a new trial is the
appropriate remedy. Respondents' claims that their Fourth Amendment rights
were violated because the arresting officers did not have probable cause to
make the arrests under the ordinance cannot be fairly evaluated unless the
entire ordinance, including section C, is given effect.
Because we decide this case for different reasons than did the Court of
Appeals, we must address the issue of qualified immunity. The appeals
court held that the arresting officers had qualified immunity because their
conduct did not violate clearly established statutory or constitutional
rights. Furfaro, 97 Wn. App. at 551-52. The Court of Appeals recognized
that the warrant requirement upon which it decided Respondents' case was
not clearly established. Id. at 551. Although we do not agree that the
officers needed a warrant to make the arrests in this case, we similarly
recognize that O'Day provides a basis for believing that nude dancing may
be considered pure conduct and not expressive conduct. That proposition is
no longer true after Pap's A.M., a case decided after the arrests were
made. Because the arrests did not violate a clearly established
constitutional right of which a reasonable person would have known, we
affirm the Court of Appeals on the issue of qualified immunity and affirm
the trial court's dismissal of the claims against the individual police
defendants.
At the new trial all of the questions on the special verdict form may be
considered by the jury except for the fourth question and questions arising
from it: 'Did the arresting officers subject either of the following
plaintiffs to an unreasonable arrest procedure?' Clerk's Papers at 885.
Respondents do not contest the jury's negative answer to that question.
Although we remand Respondents' claim for damages under 42 U.S.C. sec. 1983
for a new trial, we do so on grounds other than those found by the Court of
Appeals. As a consequence of the different reasoning, the relief available
is also different. The only issues to be considered at trial are those
specified in the preceding paragraph of this opinion. The trial court may
not reopen other issues such as the availability of injunctive or
declaratory relief under both the federal and state constitutions.
Furfaro, 97 Wn. App. at 551.
CONCLUSION
We affirm the judgment of the Court of Appeals but on different grounds.
We do not agree that warrants were required to make the arrests in this
case. Nevertheless, because we find that a jury instruction was erroneous
and misleading, and that the error was prejudicial to respondents, we
reverse the trial
court's judgment of dismissal and remand this case for a new trial
consistent with this opinion.
WE CONCUR:
Justice Richard P. Guy is serving as a justice pro tempore of the Supreme
Court pursuant to Const. art. IV, sec. 2(a).
1 Kidder and Silva were arrested for violations of SMC 6.270.100(A)(2).
Clerk's Papers at 319, 363. Furfaro was arrested for violating SMC
6.270.100(A)(5), which reads, 'No manager or operator shall knowingly
permit any person upon the premises to touch, caress, or fondle the
breasts, buttocks, anus, genitals or pubic region of another person.'
Since the officers seemed to observe only solo violations of the standards
of conduct, perhaps Furfaro should have been charged under SMC
6.270.100(A)(12): 'No manager or operator shall knowingly or recklessly
permit or allow any employee or entertainer to violate any provision of
this chapter.' Nevertheless, for the purposes of this action his claim for
relief rests upon Kidder's and Silva's claims. If the officers did not
have probably cause under SMC 6.270.100(A)(2) to arrest Kidder and Silva,
they did not have probable cause to arrest Furfaro.
2 Affording the 'barest' of constitutional protection to the barest forms
of expression supports the statement of Justice Hale in State v. Dixon, 78
Wn.2d 796, 798, 479 P.2d 931 (1971), where he wrote, 'There is nothing
unconstitutional about common sense.'
3 Although only three members of the Court signed Justice Rehnquist's
plurality opinion, nude dancing receives at least as much protection as
stated in that opinion because the three members of the dissent assert that
it deserves much more protection. See Barnes, 501 U.S. at 593 (White, J.,
dissenting).
4 The kind of protection actually given nude dancing is not applicable to
this case. Both Barnes and Pap's A.M. concerned whether ordinances were
unconstitutional. The plurality in Pap's A.M. stated that the level of
scrutiny to be applied to an ordinance depends on whether the regulation is
related to the suppression of expression. Pap's A.M., 529 U.S. at 289. If
the regulation is not so related, it need only satisfy the less stringent
standard from United States v. O'Brien, 391 U.S. 367, 376-77, 88 S. Ct.
1673, 20 L. Ed. 2d 672 (1968), for evaluating restrictions on symbolic
speech. Id.
5 The language of SMC 6.270.100(D) mirrors the language of Miller v.
California, 413 U.S. 15, 23-24, 25, 93 S. Ct. 2607, 37 L. Ed. 2d 419
(1973):
State statutes designed to regulate obscene materials must be carefully
limited. As a result, we now confine the permissible scope of such
regulation to works which depict or describe sexual conduct. . . .
The basic guidelines for the trier of fact must be: (a) whether 'the
average person, applying contemporary community standards' would find that
the work, taken as a whole, appeals to the prurient interest; (b) whether
the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or
scientific value.
. . . If a state law that regulates obscene material is thus limited, as
written or construed, the First Amendment values applicable to the States
through the Fourteenth Amendment are adequately protected by the ultimate
power of the appellate courts to conduct an independent review of
constitutional claims when necessary.
(Citations omitted.)
6 Despite the citation to previous cases, Pap's A.M. clarifies the issue.
Any pronouncement made in the plurality opinion in Barnes is weakened by
the fractured nature of that decision. Pap's A.M. itself does not have a
majority opinion. However, Justice Souter states that he agrees with the
analytical approach that the four-member plurality employs in deciding that
case. Pap's A.M., 529 U.S. at 310 (Souter, J., concurring in part,
dissenting in part). Both Barnes (1991) and Pap's A.M. (2000) were decided
subsequent to O'Day.