Alford

Opinion by Judge BROWNING; Dissent by Judge GOULD.

OPINION

Tony Alford spent the night in jail for tape recording a traffic stop. Since taping police officers during the performance of their public duties is not illegal under the Washington Privacy Act, the charge was dismissed by a state court.

Alford then filed suit under 42 U.S.C. § 1983 alleging that his arrest, incarceration and prosecution violated his Fourth Amendment right to be free from unreasonable seizure, and pursued state law claims for unlawful arrest and imprisonment. Defendants claimed they were entitled to qualified immunity and had probable cause for the arrest. The jury was instructed that state law clearly established at the time of the incident did not bar the type of recording for which Alford was arrested. Nevertheless, the jury found for the defendants and the district court denied Alford’s motion for a new trial. Alford appeals. We reverse and remand.

I. Facts & Procedural Histoiy

While driving to his night job, Alford noticed a disabled car on the shoulder of a highway. The area was dark and deserted and he pulled over to offer assistance. After helping the motorists jack up their car and giving…

dissenting:

I respectfully dissent, believing that the determination of reasonableness is in the province of the jury. Indeed, I cannot help but think that Congress would shudder to see 42 U.S.C. § 1983 interpreted here to provide for liability and for the potential of a monetary remedy against the law enforcement officers, here state troopers, who quite obviously were doing their job to protect the public.

The officers whom the majority would tag with liability, despite an exculpatory jury verdict in the officers’ favor, here stopped Alford for good reason because his approach to stranded vehicles, giving an appearance that he was a police officer, was ominous to say the least. After stopping and questioning Alford, following his abrupt departure from the vicinity of a *980 stalled motorist who had been led by Alford’s flashing vehicle lights to believe Alford was a police officer, the real officers arrested Alford in good faith, with their judgment seconded by a public prosecutor who was consulted.

Officer Haner and Sergeant Devenpeck reasonably believed Alford’s tape recording of the traffic stop was outlawed by the Washington Privacy Act. While in the field, the officers…