sitting in the parking lot of the public park and is doing something either on the radio or perhaps about to make a telephone call that is somewhat unclear mr johnston began filming rolls down his other window demands to see the videotape which we think would constitute a search becomes irate says that he's been illegally recorded and then arrest mr johnson  we use the force that we think would be am not entirely appropriate for someone whose only crime allegedly was take according to police chief sitting in his car qualified immunity standard why wouldn't a qualified immunity be a political if there was a violation or maybe there's no violation there's nobody lation i guess depending on what floor but for of means there may or may objective reasonable the standard being that in the nine hundred eighty three action but is that relevant on a qualified immunity issue well your honor if the answer would have to be it depends on the issue of qualified immunity is whether under the facts known to the officer at the time of the arrest a reasonable officer and you're not objective standard would have felt that the facts and circumstances justified to arrest so to the extent that something happened after the fact the principals there are the ones that clearly establish we feel that anything that is open or in public is not private state versus fact for which  cited in our brief the fordyce case which involves recording two people at a demonstration who are not interacting with the videographer there we also have in our brief we cited numerous record sounds as well as your arm please try to delineate between the video part and the audio part the video part is clearly not covered as to the audio although here the interaction of the at the time this recorder was running on the i was trying to contact dispatch at the police station to get some guidance about something law enforcement issue you know that's imagine that a person is standing on a street corner talking on his cell phone to someone saying that he is planning on i'm almost hate to use this but that he's planning on commit it's an act of terrorism or robbing a bank or something like that a police officer or even another citizen walks up next to them and overhears this conversation i would agree and i would grant so i'll be going to answer your question  somebody records a public statement on the street corner i don't think that would be a violation of the privacy but there are precedents that say that it covers private statements that public  going back to my question and i hope you'll reciprocate actually going to the policeman is talking to dispatch which normally i don't think you know the public is hearing what the police are saying that maybe i'm wrong is talking to there are police officers do they have an expectation that that's a private conversation you're i think they certainly would have an expectation that that would be an official conversation but as to the privacy conversation under the privacy act for it to be private there has to be a reasonable expectation of privacy and the case was to find that reasonable expectation essential using the standard under fourth amendment jurisprudence it's open it's in public one case even said that if it was in public where it could possibly be overheard by and said what are you up what are you doing or something like that no you are police the record is that he had his window down for almost the entire time and that was mr johnson came up to the car he rolled down the other window not unlawful to intercept or record or even try to intercept police and fire radio communications that are readily accessible to the general public i  it's it's not private it's not private if he'd wanted to if he wanted to make it private quite frankly all he had to do was roll up his window or turn on his car so the motor was running or drive parking lot of the park it was in a parking lot of a public park here it's a public park which is a public forum he's in the parking lot of it and you're saying if he got his windows up or corey turned on his motor so the engine was make a noise whether he had a reasonable expectation of privacy the fact that he took not only took no steps to create or secret him self public overhearing but actually opened himself up to being overhe by rolling down his window under the facts of this case do make a difference that had he done the other things then i think it would be a closer call because then and that might even require submission to a jury to determine if he i think i'm going to do it now in case the government wants to respond just as i turned you off of your movements issue but in a minute one minute could you tell us why you think we should review the prosecution counterclaim constitutionality theory that i guess they might be refiled or something two reasons first it of course can be refiled and second i suppose it's a and john doe officers i guess at the end of the day what the plaintiff is requesting from this court is a ruling that a police officer in the performance of his public charge his duty and wrestled with police officers are a little bit different from other public servants their place of duty is in the public they have no other place other than the police station for them to conduct their business plan of one court find that a police officer you know public park in his parked car engaged in communication either by selling a phone or through radio just batch communication which is ongoing as no expectation of privacy that those communications will not be intercepted by members of the public serious whim would contend that defies common sense that facts in this that taping of a private conversation is illegal it still states that in and offered the washington privacy act still states taking of a private conversation is illegal it would do a great disservice to the police force to say that a police officer engaged in his public duty any car with one window rolled up and one window rolled down the singing to communication or initiating communication with his police somebody videotaping there that there's a long line of case law your honor that talks about the police putting themselves in a position where there is no expectation of privacy when you went through all those cases whether it be all for the lewiston or floor in a public place such as on a thoroughfare with a police initiate the contact with the individual that has initiated the recording that's where there's no expectation of privacy in the first part of the question no to the second part of the question why i mean we have to get the line right now i'm telling you now because i'm not aware of any evidence in the record intermittently but in the record there's a videotape and it has audial but it doesn't contain any transmission from the police station does that raise an issue  respect to making it illegal to intercepting private communication and it also suffice for giving cheek nelson probable cause to stop first on three separate occasions request from the plaintiffs let me see your tape so i can determine whether you improperly recorded or illegally recorded the conversations that were going on within my squad car when the plaintiff refused three separate occasions to turn it over attempted to leave made his decision that the video camera quarter the recording was going on but he didn't have a recording indicator light to let anyone know whether recording actually was going on or wasn't going on that was the reason why chief n dismissing under any possible theory that the plaintiffs would raise against the city square i'm talking about that the actions of the police whether it be the sheriff tom county or chief now it's just because they are in fact the policy makers they are did not there is no evidence of a policy that was dictated or approved by the city of square that was the moving force that caused any potential kind of constitutional deprivation and  considered there was no specific ruling that he was striking that that declaration might even reading the declaration in of itself does not provide the plaintiff any relief with respect to showing that there was any in adequate training changing and the expectations of what police officers can do pursuant to that act has evolved and has been involved because the courts have gotten involved and defined the contours of a right that flows right into the issue of qualified is not is there a constitutional right involved you said there is the seizure first question is is there a violation of a constitutional right but that's really the first issue i think of yourselves we look at fully accepted i think undersells today we'd say there's no violation we don't fourth amendment violation that and that's the end of it but if we think there was a fourth amendment violation then we go to the second prong municipal live military issue i believe that the excerpts of record make clear what happened with the expert witness and i shan't belabor the point on that i will note of course as the court pointed out that the the motion to strike mr baxter's opinion was not granted it's not listed it nowhere in the order from master judge arnold is there any indication that he did not consider it and there was no cross appeal filed by the city i guess they would have to say that it would have been denied subsoil n c l but in actuality as far as there was there was no ruling on that whatsoever the municipal liability as the court indicated is premised on the if you do it yourself training program and that's the square police department policy eighty seven program in the alford versus hanger case it was mentioned that the floor of opinion on the washington privacy act was reported in the law enforcement digest so it was out there johnson was recording me as i continue to watch the skateboarders looking for the runaway through the mill and that and it goes on from there so he was obviously aware of the fact that he was being window said what are you doing mr johnson said then reporting there was then an exchange between the two where the chief demanded to see the video tape and mr johnson asserted it's a private tape you don't have any right to see it on the excerpts of record pages nineteen through twenty one and mr johnson's deposition he said quite clearly that the chief came and got out of the car came around and that of justice shot after viewing that is when the chief arrested him but the overarching issue of course is that the scene i quoted on the privacy act is a reasonable expectation of privacy essence what the city of swim is asking you to do is to take a privacy act that the washington courts has specifically said should not be transformed from a shield for the people to of commissioners and things of that nature they're carrying out their public duties you know if we were the washington state supreme court we could sharpen up our pencils and decide exactly where we think the balance lies and what should be private what should be public but in this proceeding at least on the issue of qualified immunity we just have decided it was reasonably clear to think is what shows the problem with that cell training program but here we're not asking for the court to extend the privacy act we're not asking for the court to reinterpret the privacy act we're simply trying to hold the police