257 F.2d 910 | 10th Cir. | 1958
Lead Opinion
In this diversity action against a police officer and a private instigator, the appellant seeks damages for wrongful arrest and imprisonment for violation of a city ordinance, said to be unconstitutional. At the conclusion of the appellant’s opening statement to the jury, the court directed a verdict for the defendant-appellees, and this is an appeal from a judgment thereon.
Without indulging in any formal pleadings, and taking the opening statement as the true operative facts, the question is whether the appellant stated a claim upon which relief can be granted on any legally sustainable theory.
Thus considered, the facts are that appellant Miller is an itinerant vendor who takes orders for tailored clothing for men and women, which, after manufacture, is shipped in interstate and foreign commerce in the original package C. O. D. directly to the customer. The appellee Stinnett is a police officer in the town of Farmington, New Mexico; and the appellee Shervee is engaged in the clothing business at a fixed establishment in Farmington. A duly enacted ordinance of the town of Farmington imposed an occupational tax upon numerous occupations, trades and pursuits; provided for the issuance of licenses upon the payment of the tax; and fixed penalties for the violation thereof. Without having paid the tax or obtained a license under the ordinance, Miller went to the town of Farmington, measured prospective customers, obtained their orders, and forwarded them in interstate commerce to be filled and shipped directly to the customer in the usual manner. At the instigation of Shervee, officer Stinnett went to a certain place where Miller was engaged in measuring a prospective customer for clothing. After witnessing the measuring process, Stinnett, acting without a warrant, arrested Miller and took him in a police car to the jail and booked him for violation of the ordinance. Thereafter, Miller furnished bail and was released. On two previous occasions, Miller had been arrested, charged, tried and fined for violation of the same ordinance. On appeal the charges had been dismissed and Miller released. But at the commencement of this suit, this charge had not been dismissed or otherwise failed. At the time of the arrest in question, Stinnett and Shervee both knew that Miller claimed immunity from the incidence of the ordinance by reason of the fact that he was engaged in interstate commerce.
The repeated arrests and detention of the appellant by the officer at the instance of Shervee, and the subsequent dismissal of the first two cases after imposition of fine, partakes of malicious prosecution. Of course if the appellant’s statement made out a case for malicious prosecution, he is entitled to proceed upon it, regardless of his pleadings or stated legal theories. But, according to its common law definition, malicious prosecution is the malicious use of valid process to an unsuccessful end. It presupposes an innocent or acquitted accused. This claim is based on the last arrest and conviction' — reference is made to the former aborted arrests and convictions apparently for the only purpose of showing malice and want of probable cause. As far as this record shows, no final disposition favorable to the appellant has been made of the charge which is the gravamen of this suit. Meanwhile, malicious prosecution will not lie for the last detention.
The appellant denies any intention to claim under the Civil Rights Act, 42 U.S.C.A. § 1981 et seq. in view of Agnew v. City of Compton, 9 Cir., 239 F.2d 226. But see Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240; Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Downie v. Powers, 10 Cir., 193 F.2d 760, 765.
But even so, the acts complained of here were intended to and did result in the appellant’s conscious confinement without his consent, and it is civilly actionable unless privileged. See Restatement Torts, §§ 35, 36, 37. The detention is a form of assault and battery,
On the other hand, there is authority for holding the officer civilly liable for arrests made under statutes subsequently declared invalid. The rule is predicated upon the concept, first announced in Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178, to the effect that an unconstitutional act confers no rights, imposes no duty and affords no protection to anyone acting under authority of it. See Smith v. Costello, 77 Idaho 205, 290 P.2d 742, 56 A.L.R.2d 1020; 43 Am.Jur. Public Officers, § 284; 11 Am.Jur. Constitutional Law, § 149; Annotation 53 A.L.R. 268. And, this is so even in the absence of malice and in the presence of probable cause. See Annotation 137 A.L.R. 504. Good faith and honest belief is admissible only in mitigation of the damages. S. H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757; Gogue v. MacDonald, 35 Cal.2d 482, 218 P.2d 542, 21 A.L.R.2d 639; Singleton v. Perry, 45 Cal.2d 489, 289 P.2d 794. Restatement protects the officer for an arrest without a warrant where he acts under a reasonable mistake of fact, but affords no protection where he acts, however reasonably, under a mistake of law, “other than a mistake as to the validity of a statute or ordinance.” As to that, it expressly refrains from an opinion. See Restatement Torts, § 121, Caveat to Comment i.
New Mexico, whose law governs the legal sufficiency of the claim, has not expressly resolved the conflict, but in a recent action against an enforcement officer and a justice of the peace for both false imprisonment and malicious prosecution, the court sustained the claim, based upon “the trumpted up charge” that the complainant was driving on the wrong side of the road in violation of a city ordinance, the officers well knowing that no such ordinance was in existence. In that case, the process was void on its face, and both the officer and the judge acted “wholly without jurisdiction.” Vickrey v. Dunivan, 59 N.M. 90, 279 P.2d 853, 855. There was ample room for malice and want of probable cause, and punitive damages were sought. And, since the prosecution was terminated in favor of the accused-complainant, the action was thus readily sustainable on either asserted theory of false imprisonment or malicious prosecution. But, the New Mexico court did not concern itself with nomenclature. It was content to rest the compensatory claim on the simple tort of unprivileged detention.
The only significant difference between the Vickrey case and ours lies in the fact that the arrest and detention in that case was executed under a knowingly nonexistent ordinance, and the prosecution thereunder had been formally determined in favor of the accused-complainant; while in our case, the arrest and detention was executed under an existent ordinance valid on its face, but invalid and inapplicable in fact. The charge had not been formally terminated, but, as we have seen, the ordinance was clearly inapplicable to the accused-complainant, and under the stated facts, both the arresting officer and the insti
As to the appellee, Shervee, who, on this record instigated the false arrest, it is well established and apparently agreed that he stands on the same footing with the arresting officer. And see 21 A.L.R.2d 643, 687, Subdivision 4, See. 19.
The judgment is reversed.
Dissenting Opinion
(dissenting).
I find myself in disagreement with my Associates in this case. As stated in the majority opinion, the town of Farm-ington, New Mexico, has an occupation tax ordinance on its statute books. It is a general ordinance apparently applying to all forms of endeavor or pursuits for profit, with certain exceptions not material herein. It imposes an occupation tax beginning at $5 per annum. It applies equally to all classes of occupations. It provides for applications for licenses, issuance of licenses, and makes it an offense to engage in business without having a license.
New Mexico has a statute (N.M.S.A. 1953 Comp. § 14-17-6) which is necessary to consider. It relates to the powers and duties of marshals and other peace officers and so far as material herein provides that such officers “shall apprehend any person in the act of committing any offense against the laws of the state or ordinances of the city, town or village, and forthwith bring such persons before the competent authority for examination and trial; * * * ”.
As stated in the majority opinion, Miller was an itinerant vendor, taking orders for tailored clothing to be fitted and shipped in interstate commerce. He did not have a license to engage in business in Farmington. Some attention is given in the majority opinion to the fact that there had been previous arrests and there are suggestions of bad faith in making these arrests which might partake of malicious prosecution. I lay these aside because, as I read the majority opinion, it is not based on bad faith or acts that smack of malicious prosecution. I think the statement is warranted that the record is devoid of anything which would in any way tend to establish bad faith on the part of the officer making the arrest, say what you may about the conduct of the local merchant.
Here are the essential facts. At the instigation of Shervee, a local merchant, Officer Stinnett went to a place where Miller was engaged in measuring a purchaser of clothing and, after witnessing the measuring, arrested Miller without a warrant and took him to jail, where he made bond and was released. Both Stinnett and Shervee knew that Miller claimed immunity from the ordinance.
The majority opinion, as I read it, is predicated upon the assumption that the Farmington occupation tax ordinance is unconstitutional. I am not so sure in my own mind that this is so. Reliance for this position is placed upon the so-called drummer ordinance cases, beginning with the early case of Robbins v. Shelby County Taxing District, 120 U. S. 489, 7 S.Ct. 592, 30 L.Ed. 694, and adhered to by a divided court in the later cases of Nippert v. City of Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760, and Memphis Steam Laundry Cleaner v. Stone, 342 U.S. 389, 72 S.Ct. 424, 96 L.Ed. 436. The Farmington ordinance in many respects is vastly different from the ordinary drummer ordi
To me the single question is, can an officer who makes an arrest for the violation of an ordinance committed in his presence, which by law he is required to make,
By the great weight of authority, in fact almost by unanimous authority, it is held that an arrest made by an officer for acts committed in his presence in violation of ordinances valid upon their face are privileged and do not subject him to liability if thereafter the ordinance is held void. The reason for this is well stated by the Tennessee Supreme Court in Bricker v. Sims, 195 Tenn. 361, 259 S.W.2d 661, 664, where the Supreme Court said, “The general public welfare, and more especially the peace and good order of society, will not admit of ministerial officers being the judge of the constitutionality of statutes and ordinances. Their failure and refusal to enforce the law as written, in the absence of any proper adjudication of unconstitutionality, would be intolerable.” Of all the cases relied upon by the majority for a contrary holding, only Smith v. Costello, 77 Idaho 205, 290 P.2d 742, involves the liability of a peace officer acting under an invalid statute and that case did not involve the liability of an officer for making an arrest under such a statute without a warrant.
In City of Clovis v. Archie, 60 N.M. 239, 290 P.2d 1075, the New Mexico Supreme Court construed the statute requiring an officer to make an arrest without a warrant for an offense committed in his presence. In that case Archie was arrested without a warrant and on trial was convicted. On appeal, it was contended that the arrest was illegal because made without a warrant. The Supreme Court, referring to the statute, held that thereunder an arrest without a warrant was lawful. The case of Vickrey v. Dunivan, 59 N.M. 90, 279 P.2d 853, 855, by the New Mexico Court, upon which reliance is placed by the majority, is clearly distinguishable upon the facts. The arrest there was made for the violation of a city ordinance which did not exist and for an offense which was committed, if at all, outside the city limits. Under these facts, the officer was held liable for false arrest because he did not act even under color of ostensible authority and was wholly without jurisdiction to act. The Court, however, recognized the general rule of non-liability of officers acting under color of authority. In the opinion it is stated, “No rule is more firmly established than that judicial officers are not liable for the erroneous exercise of judicial powers vested in them; * * *»
I have been able to find only one case directly in point. In Bricker v. Sims, 195 Tenn. 361, 259 S.W.2d 661, 664, the plaintiff averred that he had been unlawfully arrested without a warrant, for the violation of an ordinance which was unconstitutional and void, and sued the arresting officers for false arrest. The officers’ demurrer to the complaint was sustained, and the case was dismissed. On appeal, the decision was affirmed. The Tennessee Court laid down the principles which to me are basic in such clear language that I quote there
. Under the ordinance, Stinnett was required to make the arrest because the violation of the license ordinance was committed in bis presence.
