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 *688police 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 making an arrest on a public thoroughfare, period. See id. at 979.
If today we only held that Chief Nelson could not arrest Johnson under the Privacy Act because Johnson attempted to record communication made during an arrest on a public thoroughfare, I would join the majority, despite my dissent in Alford, because I am bound by our circuit’s precedent. But, alas and alack, I cannot join with my colleagues, because the majority now goes further in its construction and resulting limitation of Washington’s Privacy Act to deny the Act’s protections to a police officer who was not executing an arrest, who was not located on a public thoroughfare, and who was not within the presence of a third party. When taped by Johnson, Chief Nelson was sitting in his patrol car, in an empty parking lot, engaging in a conversation over the radio with dispatch. The Privacy Act’s plain terms cover “individuals” engaged in “[pjrivate communication transmitted by telephone, telegraph, radio, or other device,” Wash. Rev.Code § 9.73.030(l)(a) (2004), but the majority now holds that an on-the-job police officer in the State of Washington has no reasonable expectation of privacy in a conversation with dispatch over the radio. If such a broad principle is to be endorsed, it should be expressed by the Washington State Supreme Court, not merely imagined by us.1
A better approach than that adopted by the majority would be for us to certify to the Washington State Supreme Court the questions of (1) whether Chief Nelson’s radio conversation with dispatch, while sitting in his police car in a vacant parking lot in a city park, could be considered private within the meaning of the Privacy Act; (2) and, if not, whether the controlling principle was “clearly established” under Washington law at the time Chief Nel*689son charged Johnson with a Privacy Act violation. The answers to these questions are dispositive of this case, and in my view have yet to be resolved by the Washington State Supreme Court.2 Under these circumstances, the State of Washington has a procedure permitting us to certify questions for resolution by the Washington State Supreme Court. Wash. Rev.Code § 2.60.020 (2004) (allowing certification of a question to the Washington State Supreme Court when “in the opinion of any federal court ... it is necessary to ascertain the local law of [Washington] in order to dispose of such proceeding and the local law has not been clearly determined”).
We are not making the most of our opportunity to cooperate as judicial neighbors, and we are not in tune with the requirements of judicial federalism, when we declare state law whose contours have not been firmly set by the state’s own supreme court, without first asking the state supreme court for clarification. The reach of the Privacy Act here is important to the State of Washington and to its citizens, as our holding has the potential to limit the use of police communications with dispatch to cases where the communications may readily be displayed openly to the public eye and ear. Certification is particularly appropriate when a legal issue’s resolution can impact state law enforcement. See Ventura Group Ventures v. Ventura Port Dist., 179 F.Bd 840, 843 (9th Cir.1999).
My concern that it would be preferable if we certified the key questions is intensified by the unusual procedural context of § 1983 claims, which may be brought in state or federal court. Martinez v. California, 444 U.S. 277, 283-84, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (holding that federal courts do not have exclusive jurisdiction over § 1983 claims, and pointing out that state courts have concurrent jurisdiction to hear such claims). Those who assert claims against police officers for false arrest under the Privacy Act frequently make a § 1983 claim. The majority’s decision today will bind federal courts within our circuit, whereas the Washington courts, in my view, might reach a different conclusion. The Washington State Supreme Court will be able to be the final arbiter of the meaning of the Privacy Act as it relates to on-the-job police officers, if it is presented with and rules on the pertinent issues. Yet, a rational plaintiff will not elect to seek an answer from the state courts when we have declared a view of Washington state law so friendly to plaintiffs arrested in Washington under the Privacy Act after taping a police conversation. The probable effect of the majority’s decision is that “the many Washington cases addressing enforcement of the Privacy Act by public officers performing official duties,” Majority Opinion at 686, will be brought before and decided by a federal court in the Ninth Circuit, perhaps leaving the Washington State Supreme Court without an opportunity directly to review or correct our interpretation of Washington state law. It is better to recognize that the certification procedure saves “time, energy, and resources and helps build a cooperative judicial federalism.” Lehman Bros. v. Schein, 416 U.S. 386, 392, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974).
I also disagree with the majority’s analysis of Chief Nelson’s claim of qualified immunity. It was not unreasonable, in my *690view, for Chief Nelson to believe that he had a lawful basis to arrest Johnson for violating the Privacy Act. No decision to date in the Washington state courts, nor in our interpretations of Washington law, has ever held that the Privacy Act fails to offer its protections to an on-the-job police officer, communicating via radio to dispatch, in a parked squad car, outside the presence of third parties. Before today, that is.
Chief Nelson’s on-the-scene determination that he had cause to arrest Johnson under the Privacy Act was at first approved by a judge of the Washington State District Court who, after the fact, found that probable cause existed for arresting and holding Johnson. It seems odd to say that Chief Nelson violated a clearly established right of Johnson when prior decisions limited the Privacy Act’s reach only by excluding “public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of [a] passerby,” Flora, 68 Wash.App. at 807, 845 P.2d 1855, not involved here, and when the first state court to review the arrest agreed that Chief Nelson’s arrest of Johnson was warranted by probable cause under Washington law.
The only “official function” held=by- state precedent in Flora and our precedent in Alford to be non-private was an arrest. But Chief Nelson was not arresting anyone when Johnson taped him. Further, the places where the arrests in Flora and in Alford occurred were each public thoroughfares, whereas Chief Nelson’s encounter with Johnson was in the parking lot of a public city park, which might conceivably be a point of distinction. And Chief Nelson’s communication with dispatch was not made in the presence of third persons. When Johnson came within Nelson’s sight and hearing, he told Johnson to cease recording his private conversation. Neither the Washington appellate court’s decision in Flora, nor our extension of Flora in Alford, addressed the applicability of the Privacy Act in the circumstances presented to Chief Nelson.
I also disagree with the majority’s conclusion regarding municipal liability. Johnson’s law enforcement expert opined that the Sequim Police Department’s policy of assigning responsibility to individual officers of keeping abreast of recent court decisions related to law enforcement amounted to a failure to train Sequim police officers about enforcing suspected violations of the Privacy Act. Even taking this declaration as true, nothing in the record shows that this failure to train amounted to deliberate indifference or that it caused the alleged violation of Johnson’s constitutional rights. See City of Canton v. Harris, 489 U.S. 378, 389-90, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (finding that a failure to train will represen! city policy only where “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need”). No evidence indicates that Chief Nelson was unaware of prior Privacy Act case law, or that if he was unaware of such law, a contrary City policy would have led to a different result under the circumstances presented by Johnson’s encounter with Nelson. Indeed, given the ambiguity surrounding the extent to which prior decisions of the Privacy Act limited its scope with respect to law enforcement officers, it is hard to say whether any amount of training about state law precedents on Privacy Act enforcement would have prevented this arrest. The state law as declared by the Washington State Supreme Court, or by intermediate appellate courts as in Flora, had not set the bounds of the Priva*691cy Act for police officers who were not engaged in making arrests on a public street or highway. There is just no basis, indeed there is no just basis, for Monell liability to be visited upon the City of Sequim, and the city’s summary judgment should not have been disturbed.3
Finally, I disagree with the majority’s conclusion reinstating Johnson’s state law tort claim against Chief Nelson for “outrage.” The Washington State Supreme Court has limited the scope of the tort of outrage to the most extreme conduct. Birklid v. Boeing Co., 127 Wash.2d 853, 867, 904 P.2d 278 (1995) (limiting the tort of outrage to only those acts that are “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”). Here, an initial hearing by a Washington state court judge found probable cause to arrest and detain Johnson. And even though a different state court judge later determined that probable cause was lacking, one cannot properly characterize Chief Nelson’s actions as “beyond all possible bounds of decency” or “atrocious,” even crediting all of the Johnson’s evidence and giving all reasonable inferences to Johnson.
The Washington Supreme Court has often been willing to answer certified questions when tendered by us. See, e.g., Keystone Land & Devel. Co. v. Xerox Corp., 353 F.3d 1093, 1094 (9th Cir.2003); Parents Involved in Community Schs. v. Seattle Sch. Dist., 294 F.3d 1085, 1086-87 (9th Cir.2002); Broad v. Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir.1999). By continuing to extend prior federal and state case law to limit the reach of Washington’s Privacy Act, we do a disservice to federalism and run the risk of supplanting state law with our own views, when the dispositive Washington Privacy Act questions can be more appropriately resolved by the Washington State Supreme Court in a definitive manner consistent with its view of state law.
I respectfully dissent.
. The majority opines that Chief Nelson "knowingly exposed” his communications to the public because he talked while his window was down. But I do not consider this argument controlling because no one was near enough to hear as Chief Nelson communicated with dispatch. Nelson indicated a subjective intent to keep his communication private when Johnson came near the police car: He informed Johnson that he did not consent to the recording and asked Johnson to cease recording. Cf. State v. Townsend, 147 Wash.2d 666, 674, 57 P.3d 255 (2002) (en banc) (finding the requisite subjective intent to keep a conversation private met where a person asked for the conversation to remain private). In any event, the subjective intent of the parties is but one factor a court . should consider in determining whether a communication is private within the meaning of the Privacy Act. Id. at 673-74, 57 P.3d 255 (including among the factors the subjective intention of the parties, the duration and subject matter of the communication, the location of the communication, and the presence of potential third parties).
The majority cites a 1988 Attorney General Opinion for the proposition that conversations between 911 Central Dispatch and law enforcement are not private because they can be readily monitored and are official, public business. While this argument has some logical force, this 1988 Attorney General Opinion is not the current law of the State of Washington. The Washington State Supreme Court, in its most recent Privacy Act opinion, in 2002, has instructed that the "mere possibility that interception of the communication is technologically feasible does not render public a communication that is otherwise private.” Townsend, 147 Wash.2d at 674, 57 P.3d 255.
. While the Washington State Supreme Court recently reiterated the factors that a court may consider under Washington law in determining if a communication is private, Townsend, 147 Wash.2d at 673, 57 P.3d 255, the Washington State Supreme Court has never addressed whether on-the-job police officers have a reasonable expectation of privacy in communications with dispatch.
. I agree with the majority's statement in its footnote 2 that Johnson's claims against the County and Sheriff Hawe have no merit, and that the district court's summary judgment for them should be affirmed.