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 *980stalled 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 read the statute, which literally gives support to their arrest of Alford and does not on its face carve out an exception for taping law enforcement officers.1 Then, with a caution apparently reflecting their concern that they do the right thing, the officers contacted a prosecuting attorney to make sure that Alford’s conduct indeed violated the Privacy Act. The officers did not arrest Alford on a rogue mission, nor motivated by malice, nor on a whim; instead, they provided an example of how a responsible and fair-minded officer should proceed deliberately when unfamiliar with the law a person is or may be violating; the officers called the prosecuting attorney, told him the facts, and read the statute to him. Even the prosecuting attorney mistakenly believed that the Privacy Act outlawed the covert tape recording by Alford of the officers’ investigatory stop. The officers were not unreasonable in trusting the advice from their prosecuting attorney instead of relying on the assertions of Alford that case law to be found in his glove compartment exonerated him.
The majority argues that an officer, acting in good faith, could not reasonably believe that the text of the Privacy Act, on its face, supports an arrest under these circumstances, because the statute prohibits the recording of “[p]rivate conversations.” The conversation that Alford recorded took place on a lonely stretch of road, at night, with nobody present except for Alford and the two officers. From an objective point of view, it could be reasonable for a jury to conclude, when viewing the facts in the light most favorable to the government, that the officers who read the literal language of the statute, who were unaware of an intermediate appellate court precedent, and who received supportive advice from the city’s prosecuting attorney, had a reasonable belief that Alford’s conduct violated the Privacy Act. In common sense and common parlance, one might say that two officers talking to a suspect alone in an automobile at roadside on a secluded highway, with no one else present, were engaged in a “private conversation” that could invoke the Privacy Act. The crux of the issue is whether it is a reasonable mistake of law for officers not to abide by an interpretive appellate precedent of which they were not aware.
What is most troubling to me about this case is that the majority does not give adequate heed to the fact that the district court permitted this case to go to the jury, and the jury, given instructions to which Alford did not object and that are not at issue on appeal, found no liability. In light of the district court’s submission of this case to a jury that in turn gave a verdict of no liability, it is wrong for an appellate court majority to reverse the jury’s decision on the incorrect theory that there is *981insufficient evidence to support the jury-verdict.2
The evidence now is to be viewed in the light most favorable to the officers, as it must be after a favorable jury verdict and a motion for a new trial. There is no challenge to the jury instructions. The trial court determined that the Washington appellate court’s 1992 decision in Washington v. Flora held that conversations with police officers are not “private” under the state Privacy Act, that this “rule of law was clearly established,” and the district court so instructed the jury. Yet the jury still had the right to make a determination that the officers’ conduct may have been reasonable if a reasonable mistake was made about the law.
The majority in substance slaps a strict liability theory on law enforcement officers who misunderstand the law of statutory interpretation. This is incorrect. The reason that the arrest turned out to be illegal here was that the broad literal text of the privacy statute had been interpreted restrictively by an intermediate state appellate court in an opinion that was not known by the officers or familiar to the prosecuting attorney.3 It is impractical and unjust to expect that in every case every law enforcement officer will know every legal decision written by every level of the state courts about every law. To be sure, officers may not reasonably be ignorant of well-established constitutional principles, such as the need for probable cause to arrest. But here, the officers were aware they needed probable cause to arrest. Their mistake was that they interpreted a state statute literally despite a state court ruling that had narrowed it.
The majority’s strict liability rule oppresses law enforcement, and relies on an unworkable legal fiction that presumes police officers must be aware of all state court of appeals decisions bearing on law enforcement. In my view, it is not correct to assume that officers necessarily can become familiar with all appellate opinions that change the contours of the law to differ from express statutory language. See Ganwich v. Knapp, 319 F.3d 1115, 1125 (9th Cir.2003) (“It may be argued that judges should not expect police officers to read United States Reports in their spare time, to study arcane constitutional law treatises, or to analyze Fourth Amendment developments with a law professor’s precision. We do not expect police officers to do those things.”)(emphasis added). To attach per se liability on that theory cannot be justified by the intent of Congress in passing civil rights laws or by the Supreme Court’s established precedent, or ours, properly viewed. Reasonableness of government conduct is at the core of the inquiry on liability. And reasonableness is a fact question for a jury. The officers here, who read a statute before making an arrest, saw it literally covered the challenged conduct, and double-checked with a prosecuting attorney, were acting reasonably, even if it turned out the officers’ belief about the law was incorrect.
The jury had plenty of evidence to conclude that the officers acted reasonably, as *982defined by the jury instructions to which Alford did not object. I would uphold the jury’s verdict. I must respectfully dissent.
. The pertinent portions of the Washington Privacy Act read:
(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any ... [pjrivate conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.
Rev.Code Wash. (ARCW) § 9.73.030(1)(b).
. The majority’s theory is also contrary to our precedent in Thorsted v. Kelly, 858 F.2d 571, 574-75 (9th Cir.1988) (“although the ... inquiry, whether legal rights have been settled, may often best be resolved by the trial judge, ... the existence of a reasonable belief that a search is lawful, viewed in light of the 'settled' nature of the law, is a question for the trier of fact.”) (citations omitted).
. The Flora opinion was rendered by the Washington intermediate Court of Appeals, Division I, whereas the officers here worked in Pierce County, within an area controlled by the Washington Court of Appeals, Division II, and Flora was not a state supreme court case controlling all intermediate appellate courts.