Furfaro v. City of Seattle, 144 Wash. 2d 363

Summary

The Supreme Court of Washington held that warrantless arrests of nude dancers under Seattle Municipal Code 6.270.100 did not violate the First or Fourth Amendments as a matter of law. It also held that claims under 42 U.S.C. § 1983 cannot be based on violations of the Washington Constitution or state law. The court nevertheless remanded for a new trial because the jury instruction improperly permitted a finding of probable cause without considering whether the dancers' expressive conduct was obscene and therefore unprotected.

Holdings

1. The Constitution did not require warrants for these arrests. Nude dancing receives only minimal First Amendment protection, and the asserted right to a warrant before an arrest of this type was not established by prior federal or Washington authority.
2. A claim under 42 U.S.C. § 1983 requires deprivation of rights secured by the United States Constitution or federal law; violations of the Washington Constitution or Washington law alone do not support a § 1983 claim.
3. When expressive conduct is involved, probable cause to arrest under Seattle Municipal Code 6.270.100 requires facts sufficient for a reasonable person to believe that the conduct was obscene and therefore unprotected under section 6.270.100(C). The jury instruction that allowed the jury to find probable cause for a conduct arrest without considering obscenity incorrectly stated the law and was prejudicial.
4. The individual officers were entitled to qualified immunity because, at the time of the arrests, the asserted constitutional right to perform nude dancing without fear of warrantless arrest was not clearly established.

Questions Presented

1. Whether the warrantless arrests of nude dancers for alleged violations of Seattle Municipal Code 6.270.100 deprived them of rights under the First, Fourth, or Fourteenth Amendments.
2. Whether a plaintiff may recover under 42 U.S.C. § 1983 for violations of the Washington Constitution or Washington law.
3. Whether officers had probable cause to arrest under Seattle Municipal Code 6.270.100 without determining whether the dancers' expressive conduct was obscene and therefore outside the ordinance's protected-expression exception.
4. Whether the trial court's jury instruction concerning probable cause and obscenity was erroneous and prejudicial.
5. Whether the individual officers were entitled to qualified immunity.

Disposition

reversed_and_remanded