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District Court of Appeal, Fourth District, California.

Fred H. MILLER, Plaintiff and Appellant, v. Donald GLASS and Richard Inks, Defendants and Respondents.

Civ. No. 4880.

Decided: October 08, 1954

Fred H. Miller, Los Angeles, in pro. per. Reed & Kirtland, Los Angeles, Edmund G. Brown, Atty. Gen., Alexander Googooian, Deputy Atty. Gen., Robert C. Packard, for respondents.

Plaintiff's third amended complaint alleges, among other things, that ‘defendants * * * without warrant or process of any kind, * * * arrested plaintiff under an alleged and sole charge of failing, neglecting, and refusing to exhibit upon demand a California fishing license, thus violating Sec. 403 of the Fish & Game Code of the State of California, a misdemeanor. II. That plaintiff had not violated said section of said code in the presence of the defendants or either of them, or otherwise;’ that plaintiff was thereafter imprisoned by defendants for violation of said section 403 only, and that he was ‘not taken, nor offered to be taken, by the defendants or either of them before a magistrate or other officer’ as required by sections 145 and 849 of the Penal Code; that ‘while in said jail, and as a direct result of said arrest, plaintiff was compelled to be and was finger-printed and photographed against his will and consent; that by reason of said arrest plaintiff was ‘restrained and deprived of his liberty and freedom from approximately two o'clock (2:00) p. m., June 9, 1951, to approximately eight o'clock (8:00) p. m., June 9, 1951’; and that shortly thereafter upon motion and at the reuest of the office of the district attorney of San Diego County, ‘made in open court, the alleged charge upon which the plaintiff was arrested, detained, and incarcerated, as aforesaid, was dismissed and the falsity of said charge was then and there publicly acknowledged.’

A demurrer to the third amended complaint was overruled. Defendants answered and denied generally these allegations and alleged an affirmative defense that they were, at all times mentioned, enforcing officers of the California Department of Fish and Game; that they had reasonable grounds and probable cause to believe plaintiff, in their presence, was violating section 403 of the Fish and Game Code and that the plaintiff was violating section 460 of that code; that they were acting within the course and scope of their employment and as such were shielded by the cloak of immunity from civil liability; and that plaintiff's alleged cause of action was barred by reason thereof.

It was stipulated at the hearing of a motion of defendants for summary judgment in their favor on the grounds that the third amended complaint failed to state a cause of action, that defendants were ‘Fish and Game wardens', were in uniform, and on duty at the time of the arrest. Thereupon the court granted a summary judgment in favor of defendants and plaintiff appealed therefrom.

The question here presented is whether or not the defendants, as law-enforcing officers, were immune from civil liability, under the facts related, for false arrest and imprisonment.

Plaintiff relies principally upon Gomez v. Scanlan, 155 Cal. 528, 102 P. 12; Abbott v. Cooper, 218 Cal. 425, 23 P.2d 1027; Williams v. Zelzah Warehouse Co., 126 Cal.App. 28, 14 P.2d 177; Oppenheimer v. City of Los Angeles, 104 Cal.App.2d 545, 232 P.2d 26; Miller v. Turner, 49 Cal.App. 653, 194 P. 66; and Kaufman v. Brown, 93 Cal.App.2d 508, 209 P.2d 156, in support of the contention that a law-enforcement officer is not immune from civil liability for an act of false arrest and false imprisonment, and relies upon Peckham v. Warner Bros. Pictures, Inc., 36 Cal.App.2d 214, 97 P.2d 472; and Vernon v. Plumas Lumber Co., 71 Cal.App. 112, 234 P. 869, for the proposition that where an arresting officer fails or refuses to take the person arrested without a warrant for the commission of a misdemeanor without unnecessary delay before a magistrate in compliance with sections 145 and 849 of the Penal Code, the arrest and imprisonment become wrongful ab initio.

In support of the judgment defendants and respondents rely principally upon White v. Towers, 37 Cal.2d 727, 235 P.2d 209, 28 A.L.R.2d 636; and Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876, holding, in effect that law-enforcement officers, while acting in the scope of their employment, are immune from civil liability for malicious prosecution.

In the White case defendant Towers was an investigator for the Fish and Game Commission. The complaint alleged he did maliciously and without probable cause procure the institution of two criminal proceedings against the plaintiff (for pollution of waters). Plaintiff was acquitted on one charge and the other was dismissed. An action against the defendant for malicious prosecution ensued. The trial court held that defendant, acting within the scope of his authority, was immune from civil liability for malicious prosecution. The majority of the Supreme Court, in reviewing the case stated [37 Cal.2d 727, 235 P.2d 211]:

‘* * * we believe that sound reasons of public policy require that a peace officer, or other comparable official, be shielded by the cloak of immunity from civil liability for alleged malicious prosecution. At the outset, we are faced with an apparent conflict between the public policy of protecting individual citizens from oppressive official action and the equally well established policy of promoting the fearless and effective administration of the law for the whole people by protecting public officers from vindictive and retaliatory damage suits. However, we feel that both policies may at once be subserved by refusing to permit civil actions against the officer for alleged malicious prosecution and remanding the offended individual to his remedy under the penal statutes. E. g., Pen.Code § 170.’

Many arguments are there presented in favor of this holding and considerable authority is cited in support of it. We will not here reiterate or repeat this reasoning or the authorities cited. A strong dissenting opinion advanced many of the same criticisms to the majority holding as does the plaintiff in the instant case. The minority opinion concluded that under the pleadings there set forth the plaintiff should be entitled to proceed to trial for a determination of the questions of fact presented.

In the Coverstone case plaintiff, with others, were arrested by deputy sheriffs and police officers and taken into custody and put through the usual procedure re booking, fingerprinting, etc., as was done in the instant case, and thereafter they were released. They were subsequently charged with violating Penal Code Section 407 (unlawful assembly, i. e., unlawfully viewing a ‘hot rod’ race.) They pleaded not guilty and were subsequently tried on the charge and acquitted. An action against the officers and others followed charging, among other things, false arrest and malicious prosecution, with a prayer for damages. Nonsuits were granted and plaintiffs appealed, contending that the recited facts were sufficient to predicate a cause of action for unlawful arrest; that the arrests were made without a warrant, and the criminal proceeding terminated in a verdict of not guilty. The Supreme Court held the fact that plaintiffs were exonerated in the criminal proceeding had no bearing upon the legality of the arrest; [38 Cal.2d 315, 239 P.2d 878] that ‘Since it is settled that a peace officer may lawfully make an arrest for a public offense committed or attempted in his presence (Pen.Code § 836), the critical question presented in this case is whether the acts done in the presence of the arresting officer justified the arrests being made without a warrant.’ It then said that it was not disputed that the group was assembled to view a ‘hot rod’ race; that such illegal purpose renders the action of the group knowingly participating therein an unlawful assembly within the meaning of section 407 of the Penal Code; that when the officers arrived upon the scene, they had the authority to arrest all those engaged in the commission of the unlawful act, and in its view they were entitled to act on reasonable appearances in determining who were parties to the offense; that the officers acted upon probable cause in arresting them as members of the unlawful assembly; that such being the case, the arrests were lawful as being arrests for acts committed in the officers' presence. The court then quoted from Garske v. United States, 8 Cir., 1 F.2d 620, 622, to the effect that:

“It is the well-established doctrine now throughout the United States that for a crime, which they have probable cause to believe is being committed in their presence, though it be a misdemeanor, duly authorized peace officers may make an arrest without a warrant.” That is, ‘when ‘circumstances exist that would cause a reasonable person to believe that a crime has been committed in his presence.’ Ryan v. Conover, 59 Ohio App. 361, 364, 18 N.E.2d 277, 279.'

It then concluded that when an officer sees that in all probability a public offense is being committed in his presence, to require a warrant to justify the arrest would be to hamper law enforcement officers in their everyday enforcement of the law; that peace officers would be reluctant to make arrests for fear that they would be held liable for having made an honest and reasonable mistake; that it is thus manifest that the day-to-day problems of law enforcement require that peace officers be allowed to act without fear of being held liable upon the facts as they see them, provided such facts would lead a reasonable person to conclude that he was witnessing the commission of a public offense by the person arrested. It then cited the White case as authority for the holding that since it was not contended that defendants were acting outside the scope of their authority, a cause of action was not stated upon the theory of maliciously instituting the criminal proceeding against the plaintiffs in that action.

In the Coverstone case the question of the suficiency of the allegations of the complaint was under attack in reference to the claimed false imprisonment and failure of the officers to take the boys before a magistrate prior to incarceration and under the claim that they were retained for an unnecessary period of time without a magistrate's commitment order, contrary to sections 145 and 849 of the Penal Code. It is apparent that the Supreme Court included within its ruling the question of the claim of false imprisonment for it said, 38 Cal.2d at page 322, 239 P.2d at page 880:

‘Inasmuch as the asserted causes of action for trespass, assault and battery, and conspiracy are dependent upon the unlawfulness of the arrest or the subsequent prosecution, it is patent that these plaintiffs, having failed to establish prima facie cases on the theories of false imprisonment or malicious prosecution, cannot prevail upon the other theories.’ (Italics our.)

The dissenting opinion, construing the majority opinion, said:

‘The majority of this court is, apparently, determined that no action for false arrest, false imprisonment or malicious prosecution shall lie against anyone connected with the enforcement of the law’. (Citing the White case.)

Therein, Gomez v. Scanlan, 155 Cal. 528, 102 P. 12, is cited in support of the claim that retention of prisoners for an unnecessary period of time without a magistrate's commitment order, constitutes false imprisonment. Section 825 of the Penal Code provides that the defendant must in all cases be taken before the magistrate without unnecessary delay, in any event within two days after his arrest, excluding Sundays and holidays.

In White v. Tower, supra, 37 Cal.2d at page 730, 235 P.2d at page 211, it was said:

‘It is patent that defendant Towers is a law enforcement officer, charged with the duty of enforcing laws for the protection of fish and game. As such officer he is entitled to the immunity from civil liability with which the law surrounds officials directly connected with the judicial processes.’ (Italics ours.)

Plaintiff here contends that the White case involved a malicious prosecution case and the instant action was for false arrest and false imprisonment and that therein lies the distinction between that case and the instant case. The Coverstone case involved a claim for false arrest and false imprisonment, and we therefore do not believe that such a distinction is indicated. It would appear from the statements made in both cases that such immunity was equally applicable to false arrest and false imprisonment as well as malicious prosecution. Penal Code section 236 defines false imprisonment as ‘the unlawful violation of the personal liberty of another.’ The definition of false imprisonment is the same in both criminal and civil cases. Dillon v. Haskell, 78 Cal.App.2d 814, 178 P.2d 462; Stallings v. Foster, 119 Cal.App.2d 614, 259 P.2d 1006.

An action for malicious prosecution, as defined in 16 Cal.Jur. p. 728, section 2, is ‘an action for damages for instituting and maintaining judicial proceedings against another with malice and without probable cause.’ (Italics ours.)

It is apparent to us that if the court gives law-enforcement officers immunity from civil liability for malicious prosecution, a cause of action which requires as an element of the cause of action both malice and lack of reasonable or probable cause, the same immunity should apply to a cause to action for the unlawful violation of a personal liberty where there is an absence of malice or an absence of lack of probable cause, particularly where the Fish and Game wardens were on duty, in uniform, and acting within the scope of their employment at the time of the alleged false arrest and imprisonment.

In view of the majority holding in Coverstone v. Davies, supra, and White v. Towers, supra, and since the facts in the instant case are not distinguishable, we must conclude that there is legal support for the conclusion reached by the trial court and the judgment therein rendered.

Judgment affirmed.

GRIFFIN, Justice.

BARNARD, P. J., concurs.

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