Rattray

dissenting:

I would affirm the judgment of the district court; and, therefore, I respectfully dissent. I agree with the opinion except for the discussion in Part II and Part IV-B and the conclusion in Part V.

I.

INVASION OF PRIVACY

The district court dismissed the invasion of privacy claim that was based on a violation of the California Penal Code. The majority holds this to be error. I disagree, and the reason succinctly stated is as follows. The civil invasion of privacy claim is based upon the alleged violation of a criminal statute. The plain language of the statute provides an exemption for police officers acting within the scope of their authority to record communications they could have recorded prior to the enactment of the statute. The exemption applies to the facts of this case. Under the plain language of the statute, the officers could not be found guilty of a crime and, thus, there can be no civil remedy against them.

Chapter 1.5 of the California Penal Code provides that certain acts of wiretapping and eavesdropping on or recording of confidential communications are criminal violations punishable by imprisonment not exceeding one year, or a fine not exceeding…

Opinion by Judge SCHROEDER; Dissent by Judge HUG.

Samuel Rattray, Jr., a former National City police officer, sued the city after his employment was terminated. He raised claims of invasion of privacy under California Penal Code § 632, intentional discrimination under § 1983 and Title VII, and defamation. The district court granted a directed verdict in favor of the defendants on Rattray’s privacy claims and the remaining claims went to trial. The jury found against Rattray on his § 1983 claim and the court did the same on the Title VII claim. The jury entered a verdict in Rattray’s favor on the defamation claim, but the district court granted a new trial and subsequently granted summary judgment for the city. Rattray now appeals the district court’s judgment in favor of the defendants on all claims. We reverse the court’s disposition of Rattray’s invasion of privacy claim, and affirm its judgment on Rattray’s discrimination claims. With respect to Rattray’s defamation claim, we affirm the district court’s grant of a new trial, but reverse its grant of summary judgment before the second trial.

I. Background

Samuel Rattray was employed by the City of National City, California,…