Opinion
3-9-1955
Frank DRAGNA, Plaintiff and Appellant, v. Lynn WHITE, W. A. Worton, H. E. Roberson (sued herein as Doe I) and B. D. Unland (sued herein as Doe II), Defendants, Lynn White, H. E. Roberson and B. D. Unland, Respondents. Civ. 20490.
William W. Shaw, Riverside, for appellant. Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., by Robert B. Burns, and Ralph J. Eubank, Deputy City Attys., Los Angeles, for respondents H. E. Roberson, B. D. Unland and Lynn White. Reed & Kirtland, by Robert C. Packard, Los Angeles, for respondent Lynn White.
Frank DRAGNA, Plaintiff and Appellant,
v.
Lynn WHITE, W. A. Worton, H. E. Roberson (sued herein as Doe I) and B. D. Unland (sued herein as Doe II), Defendants,
Lynn White, H. E. Roberson and B. D. Unland, Respondents.
March 9, 1955.
Rehearing Denied March 29, 1955.
See 281 P.2d 566.
Hearing Granted May 4, 1955. *
William W. Shaw, Riverside, for appellant.
Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., by Robert B. Burns, and Ralph J. Eubank, Deputy City Attys., Los Angeles, for respondents H. E. Roberson, B. D. Unland and Lynn White.
Reed & Kirtland, by Robert C. Packard, Los Angeles, for respondent Lynn White.
MOORE, Presiding Justice.
Does the complaint state a cause of action for damages for false arrest and imprisonment?
The allegations necessary to a consideration of this appeal are that about 10 p. m. February 13, 1950, defendants, police officers of Los Angeles, without a warrant, arrested and searched plaintiff and without his consent conveyed him in a police car to the offices of the police department; questioned him, locked him in a cell until 3 a. m. and without his consent and with intent to injure, humiliate and embarrass him, permitted a large number of news reporters and photographers into the room of his imprisonment to photograph him; knowing and intending that plaintiff's picture would be published throughout the United States as a criminal, held for the commission of a felony and that wide publicity would be given to his arrest and imprisonment; that defendants then removed plaintiff to a different part of the jail, had photographs and fingerprints taken for police records; took from him all his personal effects; lodged him in a tank with other prisoners; would not permit him to communicate with his mother or attorney or anyone else and kept him in said cell until February 16 when he was released.
No charges were ever filed against plaintiff accusing him of any offense but defendants, intending to injure plaintiff, caused wide publicity to be given in the newspapers throughout Los Angeles County and told the various news reporters that plaintiff had been and 'was being held for suspicion of conspiracy to commit murder and/or for suspicion of conspiracy to commit a felony; and further stated that plaintiff was a member of a criminal gang, a mobster, and had been under police observation for the nine months immediately preceding his unlawful arrest and unlawful imprisonment, and that an arsenal of rifles, shot-guns and pistols were found by the police at the time of plaintiff's arrest in the home wherein plaintiff resided.'
The complaint proceeds to deny the several charges made by defendants and that any firearms had been found in plaintiff's home; and if defendants had kept him under surveillance for any period of time they would have found no facts or evidence to sustain his arrest and imprisonment and their statements to the press. He is and has always been a law-abiding citizen, a native of Los Angeles where he was reared; was educated in the schools of Southern California and there enlisted in the United States Army; served in combat; lost an eye and was honorably discharged and never engaged in any unlawful activity and defendants knew all such facts. He demands damages in the sum of $250,000 and $100,000 punitive damages.
When the case was called for trial after it had been dismissed as to all defendants who had not been served, on motion of defendants, White, Roberson and Unland, the court granted judgment on the pleadings for the reason that the complaint does not state a cause of action. The court was correct.
Respondents are peace officers. Penal Code, § 817; Los Angeles Charter, sec. 798. As such, it was their duty to arrest appellant when a felony had been committed and they had reasonable cause to believe him the author of the crime. The complaint alleges that respondents arrested appellant because he was suspected of murder; of being a member of a criminal gang; that their belief had been confirmed by virtue of nine months' surveillance. There is nothing in the pleading that qualifies the power respondents had to make the arrest when they believed appellant to be the guilty party. White v. Towers, 37 Cal.2d 727, 734, 235 P.2d 209, 28 A.L.R.2d 636. They were authorized to do any reasonable act which might properly have constituted 'an aid in the enforcement of the law.' U. S. v. Birdsall, 233 U.S. 223, 235, 34 S.Ct. 512, 516, 58 L.Ed. 930. Having arrested appellant, respondents were immediately clothed with the armor of a presumption that they acted in the performance of their duty. Code Civ.Proc. § 1963; Cooper v. O'Connor, 69 App.D.C. 100, 99 F.2d 135, 140, 118 A.L.R. 1440.
The complaint alleges that respondents arrested appellant because he was charged with a felony. True, no complaint had been filed against him, but the filing of a formal charge was not necessary if the officers believed appellant's arrest was their duty. People v. Serrano, 123 Cal.App. 339, 341, 11 P.2d 81. So important to the peace and security of society is the apprehension of evildoers that an arrest by peace officers for a felony without a warrant is authorized. People v. Garnett, 129 Cal. 364, 366, 61 P. 1114. In fact, the officer is commanded by law to make an arrest for a felony where public security is imperiled by the freedom of the suspect.
'When the duty to investigate crime and to institute criminal proceedings is lodged with any public officer, it is for the best interests of the community as a whole that he be protected from harassment in the performance of that duty.' White v. Towers, supra, 37 Cal.2d 729, 235 P.2d 211. A thoughtful reading of White v. Towers discloses a consistently followed rule since our early beginnings to immunize peace officers in general for enforcing the law. It holds that by reason of the necessity of the case, public policy demands that a law-enforcing officer should be protected from the consequences of an erroneous judgment. To immunize peace officers and other public servants against claims resulting from errors of judgment while acting in the discharge of duty is now an elementary principle. White v. Brinkman, 23 Cal.App.2d 307, 317, 73 P.2d 254. The plaintiff had been twice unjustly accused by the defendant Towers; once for having deposited in state waters matter deleterious to fish and plant life; once for having violated a federal statute by polluting navigable waters. The first was dismissed; of the second he was acquitted. The issue was whether investigator Towers was immune against civil liability for malicious prosecution. In affirming judgment for the defendant, the court declared that it is for the best interests of the community as a whole to protect a peace officer from harassment in the investigation of crime and in initiating criminal proceedings. 'The efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders by properly trained officers. A breakdown of this system at the investigative or accusatory level would wreak untold harm. 'Criminal law does not enforce itself. It demands the assistance of valid evidence and fearless officials to put it in execution. Because of their tendency to obstruct the administration of justice, it is the policy of the law to discourage actions for malicious prosecution.' Watts v. Gerking, 111 Or. 641, 669, 222 P. 318, 228 P. 135, 141, 34 A.L.R. 1489.' White v. Towers, 37 Cal.2d 727, 730, 235 P.2d 209, 211. Not to grant immunity against civil liability to a peace officer acting within the scope of his authority for the arrest and detention of a person reasonably suspected of a felony would be to 'place every honest law enforcement officer under an unbearable handicap and would redound to the detriment of the body politic.' Ibid, 37 Cal.2d at page 730, 235 P.2d at page 211. The public welfare requires that the decision of the peace officer to make an arrest shall be free of all fear of personal liability. Phelps v. Dawson, 8 Cir., 97 F.2d 339, 340, 116 A.L.R. 1343. In the case last cited, Dawson was deputy fire marshal and as such had the duty to investigate fires. It has also been held that a member of the Federal Bureau of Investigation is cloaked with immunity. Cooper v. O'Connor, 69 App.D.C. 100, 99 F.2d 135, 140, 118 A.L.R. 1440. In the Cooper case it was said: 'The administration of criminal justice would be impossible without the active participation of public officials.'
Appellant contends that he stated a cause of action for false imprisonment by his allegation that his arrest was made without a warrant and that he was imprisoned to his damage, citing Hughes v. Oreb, 36 Cal.2d 854, 228 P.2d 550. Ordinarily such declarations would impose upon a defendant the burden of showing that the arrest was justified. In the pleading at bar, however, the justification for the arrest is alleged explicitly by the allegation that defendants had not only arrested and imprisoned him without warrant but had stated to news reporters that he was being held for suspicion of conspiracy to commit murder, that the plaintiff was a member of a criminal gang, a mobster, etc.
With such an allegation deemed to be true, how can it be said that there was not probable cause for the arrest? If defendants believed that appellant had conspired to do a murder; if they believed that he belonged to a criminal gang and if they believed that an arsenal of firearms had been found in his home, they would have been grossly derelict not to detain him under arrest until they had determined their finding was error, notwithstanding his protestations of innocence. Michel v. Smith, 188 Cal. 199, 208, 205 P. 113, 117. In that case, the arrest of Mr. Michel was grossly unjust, but the arresting officers were without malice. They were endeavoring to perform their duties as members of the 'war squad' of the police department. 'The law of the country imposed upon them a public duty, for public purposes. They were punishable for neglect of duty, if they neglected to act in a case where there was sufficient or probable cause for acting. * * * It is not only proper for the court, but by the wisdom of the sages of the law the courts are directed to give great latitude in the review of the acts of such officers.' Great latitude must be allowed for misapprehension or mistakes if the arresting officer is sincerely serving the welfare of the state. Ibid. Such officer is not required first to have established the certainty of his information relative to a suspect before making an arrest. His justification depends primarily upon the nature and amount of the evidence in his possession when he acts. Whether he acted lawfully in making an arrest is not to be determined by the actual situation as later disclosed, but upon whether his knowledge at the time of the arrest was sufficient to persuade a reasonable person to believe such knowledge was true. People v. Kilvington, 104 Cal. 86, 93, 37 P. 799; Kerr v. O'Keefe, 138 Cal. 415, 422, 71 P. 447.
Appellant had gained the soubriquets of 'mobster' and 'member of a criminal gang' according to the information of respondents. Such epithets applied to any person imposes upon the law-enforcing agencies of any community where the suspect sojourns the duty of ascertaining the latter's status. If, in conducting an investigation of such a party, it be not determined that he is innocent, it is incumbent upon the investigating officers to continue their labors, even to the point of arresting the subject. Inasmuch as the primary function of government is to render security to its people, "any mischief menacing that security demands a remedy commensurate with the evil." Lanzetta v. New Jersey, 306 U.S. 451, 455, 59 S.Ct. 618, 620, 83 L.Ed. 888.
Appellant's assignment as prejudicial the action of the court in sustaining respondents' objection to the introduction of any evidence when the case was called for trial inasmuch as a demurrer could have served the same purpose is without merit. A fatal vice in a pleading may be urged at any time. Code Civ.Proc. § 434; Fried v. Municipal Court, 94 Cal.App.2d 376, 378, 210 P.2d 883.
Judgment affirmed.
McCOMB and FOX, JJ., concur. --------------- * Opinion vacated 289 P.2d 428.