Hawe

ORDER AND AMENDED OPINION

ORDER

Appellee Clallam County’s motion for clarification of opinion is GRANTED.

The Opinion and dissent filed August 31, 2004, slip op. 12391, and appearing at 382 F.3d 944 (9th Cir.2004) are hereby AMENDED. The Clerk shall file the attached Amended Opinion and Amended Dissent.

A majority of the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc. Judge Gould would have granted the petition.

The full court has been advised of the petition for rehearing en banc and no judge requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

OPINION

In this section 1983 action Anthony L. Johnson appeals the grant of summary judgment predicated on qualified immunity for his arrest by the City of Sequim Police Chief Byron Nelson for a violation of Washington’s Privacy Act, Wash. Rev. Code § 9.73.030 (the “Privacy Act”). Because it was clearly established under Washington law at the time of the arrest that recording a police officer in the performance of his public duties was not a violation of the Privacy Act and it…

dissenting:

I respectfully dissent, believing that the majority extends Washington law, as expressed in State v. Flora, 68 Wash.App. 802 , 845 P.2d 1355 (1992), to a setting where it is inapplicable, and otherwise adopts a view of Washington law that I do not think likely would be shared by the Washington State Supreme Court. Flora held that an “arrest was not entitled to be private,” and so police officers making an arrest “could not reasonably have considered their words private.” Id. at 808 , 845 P.2d 1355 . The Privacy Act applies to private conversations only, and the Washington Court of Appeals in Flora was unwilling to extend the Act’s protection to *688 police officers making an arrest “on a public thoroughfare in the presence of a third party and within the sight and hearing of [a] passerby.” Id. at 807 , 845 P.2d 1355 . In Alford v. Haner, 333 F.3d 972 (2003), a divided opinion of our court extended Flora’s holding to deny Privacy Act protection to police officers making an arrest on a dark and deserted highway. After Alford , in the federal courts within the Ninth Circuit, Washington’s Privacy Act would not be recognized as offering any protection to police officers…