Rattray
Rattray v. City of National City
Opinion
Lead Opinion
Schroeder, J.
Opinion by Judge SCHROEDER; Dissent by Judge HUG.
ORDER
The proposed Brief of Amici Curiae in Support of Defendantr-Appellees’ Petition for Rehearing and Suggestion for Rehearing En Bane is ordered filed.
A majority of the panel as constituted above has voted to deny the petition for rehearing. A majority of the panel has not •voted to grant the suggestion for rehearing en banc.
The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R.App.P. 35.
The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.
The Opinion filed on October 7, 1994 [ 36 F.3d 1480 ] is modified accordingly:
[Editor’s Note: Modifications incorporated for purposes of publication].
OPINION
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…
Dissenting Opinion
Hug, J.
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 fíne not exceeding…