Barfield v. City of Seattle

Decision Date26 January 1984
Docket NumberNo. 49706-1,49706-1
Citation100 Wn.2d 878,676 P.2d 438
PartiesDavid F. BARFIELD and Garry Biney, Petitioners, v. CITY OF SEATTLE, a municipal corporation; Rolf Towne and Jane Doe Towne, his wife; T.C. Dillon and Jane Doe Dillon, his wife; Patrick Fitzsimons and Jane Doe Fitzsimons, his wife; and Richard Williams and Jane Doe Williams, his wife, Respondents. Mary Kate GARDNER and Robert B. Srygley, Respondents, v. Gary McNULTY and Jane Doe McNulty, his wife; Mario J. Navarrete and Jane Doe Navarrete, his wife; Patrick Fitzsimons and Jane Doe Fitzsimons, his wife; and The City of Seattle, a Washington municipal corporation, Petitioners, Merlyn Bell and John Doe Bell, her husband; and County of King, a Washington municipal corporation, Defendants.
CourtWashington Supreme Court

Lembhard G. Howell, Seattle, for petitioners Barfield, et al.

Franklin W. Shoichet, Seattle, for respondents Gardner, et al.

Stafford, Frey & Mertel, Stephen P. Larson, Seattle, for petitioners McNulty, et al. and respondents City of Seattle, et al.

DOLLIVER, Justice.

In these consolidated cases we review two pretrial discovery orders involving Seattle Police Department Internal Investigation Files (SPDIIF). At issue is whether plaintiffs may obtain discovery of SPDIIF involving prior complaints against the officers in actions alleging tortious conduct by police officers; negligent hiring, retention, and discipline; and 42 U.S.C. § 1983 civil rights violations.

In Barfield v. Seattle the following facts are pertinent. Plaintiffs David Barfield and Garry Biney were riding a motorcycle in April 1980. Police Officer T.C. Dillon, in plain clothes and an unmarked car, allegedly passed plaintiffs on the inside and changed lanes directly in front of them, causing plaintiffs to fall off the motorcycle. Dillon proceeded to a nearby hotel and plaintiffs followed him to ask for an explanation and obtain identification. A dispute ensued. Dillon called for police help. A physical confrontation took place between Barfield and Dillon. Plaintiffs were arrested and booked. Biney was released. Barfield was charged with assault, trespass, harassment, and menacing and obstructing a police officer. He was later acquitted.

In November 1980 plaintiffs filed a complaint against the City of Seattle alleging deprivation of their civil rights; assault and battery; conspiracy among Seattle police officers; malicious prosecution; infliction of mental distress; and negligence of the City of Seattle to supervise and discipline its police officers.

Plaintiffs made a motion for production of the SPDIIF. On January 13, 1982, after an in camera inspection of the internal investigation files, the trial court ruled the files were not discoverable as nothing therein would lead to discoverable evidence and there was a sufficient showing of privilege.

In summary the trial court stated

allegations of prior misconduct or allegations relating to character for purposes of proving that one acted in conformity therewith on a particular occasion, are not admissible. If they were admissible, then you would undoubtedly be entitled to this information.

An amended complaint was subsequently filed adding Police Officers Rolf Towne, Richard Williams, and T.C. Dillon, Police Chief Patrick Fitzsimons, and their respective marital communities as party defendants. A second cause of action was added alleging 42 U.S.C. §§ 1983, 1985 civil rights violations. Specifically, a pattern of excessive force and misconduct by Seattle police officers was allegedly tolerated and concealed.

In light of the amended complaint, plaintiffs made a second motion for discovery. Again production of the SPDIIF was denied, except for two files pertaining to a similar incident involving Police Officer Towne. In its order of July 2, 1982, the court stated those files on which discovery was not allowed "contain no information which is relevant to the subject matter involved in the pending action or which appears reasonably calculated to lead to the discovery of admissible evidence and accordingly these materials are not discoverable."

In Gardner v. McNulty plaintiffs Mary Gardner and Robert Srygley were arrested on lewd conduct charges after a late night nude swim in Lake Washington. As they emerged from the water, plaintiffs maintain they were handcuffed while naked and not allowed to put or keep on any towel or article of clothing by defendant Officers McNulty and Navarrete. Gardner contended a friend tried to help her into a pair of shorts, but the officers warned her not to do so as all clothing would be (and was) taken for evidence. Additionally, plaintiffs alleged they were transported naked to the Public Safety Building and "paraded about and booked in this condition." Gardner asserts that while naked she was subjected to a body cavity inspection by matrons at King County Jail.

Defendants denied all of plaintiffs' allegations except admitting to arresting, handcuffing, and booking the plaintiffs. Defendants attested the plaintiffs were clothed in towels, prior to being placed in a squad car, but state "there is a dispute as to whether those towels remained on and for how long."

The City Attorney's office subsequently dropped all charges against the plaintiffs " 'in the interest of justice.' "

Plaintiffs Gardner and Srygley filed a complaint for damages against Police Officers Gary McNulty and Mario Navarrete; Police Chief Patrick Fitzsimons; Acting Director of the Rehabilitative Services Department Merlyn Bell; their respective marital communities; City of Seattle; and King County. Plaintiffs alleged they were assaulted, falsely arrested, and imprisoned. Additionally, plaintiffs alleged defendants' actions constituted intentional or negligent infliction of emotional distress; invasion of privacy; extreme and outrageous conduct; public or private nuisance; unreasonable search and seizure; official misconduct under RCW 9A.80.010; deprivation of liberty and property without due process of law; cruel and unusual punishment; violation of equal protection rights on account of plaintiff Gardner's sex; and civil rights violations contrary to 42 U.S.C. §§ 1983, 1985, and 1986. Plaintiffs asserted defendants City of Seattle and Fitzsimons negligently, recklessly, or willfully retained McNulty and Navarrete knowing their likelihood to commit wrongful acts against civilians; failed to promulgate sufficient rules and standards; failed to properly discipline; discouraged civilian complaints; and failed to establish proper practices and procedures to determine psychological fitness for duty. Defendants Bell and King County were accused of negligent supervision and failure to establish proper standards to prevent unreasonable body cavity inspections. Plaintiffs believed the police officers' actions were done "to satisfy their personal voyeuristic desires."

The City defendants admitted that at all relevant times McNulty and Navarrete were acting as police officers within the course and scope of their employment and that the City was liable for any wrongful conduct of the officers under the doctrine of respondeat superior.

A notice of deposition and subpoena duces tecum was served upon the Seattle Police Department to obtain information of prior wrongful conduct by the arresting officers. The defendants moved for a protective order to quash. After an in camera examination of the SPDIIF, the trial court issued an order on discovery and protective order granting access to the files, but narrowly restricting its use by plaintiffs' counsel. The trial court found the SPDIIF discoverable as "the defendants have not shown that the information sought relates to items or material which are beyond the proper scope of discovery, not reasonably calculated to lead to the discovery of admissible evidence, or is otherwise nondiscoverable". Specifically, the trial court noted it was "not making any ruling regarding the relevance and/or the admissibility at trial of any such information."

The general rule addressing the scope of discovery is CR 26(b)(1), which states:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

This rule is designed to permit a broad scope of discovery. Bushman v. New Holland Div., 83 Wash.2d 429, 434, 518 P.2d 1078 (1974). See Lurus v. Bristol Laboratories, Inc., 89 Wash.2d 632, 574 P.2d 391 (1978); 4 L. Orland, Wash.Prac., Rules Practice § 5305 (3d ed. 1983).

I. Privilege

The threshold issue is whether the SPDIIF are privileged. "Privilege, within the meaning of the Rule, is privilege as it exists in the law of evidence." 4 L. Orland, at 23. Two statutory privileges are asserted, RCW 5.60.060(5) and RCW 42.17.310.

RCW 5.60.060(5) provides:

A public officer shall not be examined as a witness as to communications made to him in official confidence, when the public interest would suffer by the disclosure.

"By its terms, RCW 5.60.060(5) grants only a conditional privilege. Confidential communications to a public officer are privileged only when the public interest would suffer by their disclosure." Cook v. King Cy., 9 Wash.App. 50, 51, 510 P.2d 659 (1973). In Cook the plaintiff claimed personal injuries resulting from the excessive use of force when arrested by King County police officers. The Court of Appeals remanded and directed the trial court to make an in camera examination of the sheriff's investigatory files and determine whether the public interest would suffer by disclosure to the plaintiff.

Defendants maintain disclosure of SPDIIF would inhibit effective law enforcement and the confidential reporting of complaints. While in January 1982 the Barfield court found "a sufficient showing of...

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