Davidson v. Dill

• Decision Date: 13 November 1972
• Docket Number: No. 24454,24454
• Citation: 180 Colo. 123,503 P.2d 157
• Parties: Dorothy E. DAVIDSON, Plaintiff in Error, v. Arthur G. DILL, substituted for George L. Seaton, as Chief of Police, Police Department in and for the City and County of Denver, and Lieutenant Thomas L. O'Neill, Defendants in Error.
• Court: Colorado Supreme Court

Page 157

503 P.2d 157

180 Colo. 123

Dorothy E. DAVIDSON, Plaintiff in Error, v. Arthur G. DILL, substituted for George L. Seaton, as Chief

of Police, Police Department in and for the City

and County of Denver, and Lieutenant

Thomas L. O'Neill, Defendants in Error.

No. 24454.

Supreme Court of Colorado, En Banc.

Nov. 13, 1972.

Ralph B. Rhodes, Denver, for plaintiff in error.

Max P. Zall, City Atty., James H. Snyder, Asst. City Atty., Denver, for defendants in error.

LEE, Justice.

Plaintiff in error, Dorothy Davidson, seeks reversal of the trial court's order granting the motion of defendants in error to dismiss her complaint for failure to state a claim upon which relief can be granted. For the reasons stated herein, we reverse and remand.

On July 25, 1968, Dorothy Davidson was arrested for loitering, in violation of municipal ordinance No. 824.3--1 of the city and county of Denver. She was fingerprinted, photographed, and required to furnish personal statistics, all of which data were reduced to writing and placed in the criminal identification files of the Denver police department. On December 23, 1968, she was tried and acquitted by a county court jury.

Mrs. Davidson subsequently brought an action in the Denver district court against George L. Seaton, then Chief of Police, and Lieutenant Thomas L. O'Neill, custodian of her records. Her complaint alleged that prior to her arrest and acquisition of an arrest record she had never been accused of or arrested for violation of any laws, nor convicted of a crime (with the exception of minor traffic violations); that there exists no statute or municipal ordinance granting the Denver police department authority to retain an acquitted person's arrest records; that she demanded the return of the arrest records, but her demand was refused; and that the retention of these records is an invasion of her right to privacy. She asked for relief in the nature of a mandamus ordering the Denver police department to expunge her arrest records or, in the alternative, for an order compelling their return to her.

The sole issue presented on appeal is whether the trial court erred in dismissing this action pursuant to C.R.C.P. 12(b)(5) for failure to state a claim upon which relief can be granted. Plaintiff in error's assignments of error are all directed to that court's failure to recognize her right of privacy and the alleged violation of this right by the failure of the police, without factual justification upon her acquittal, to return her arrest records to her. Defendants in error, on the other hand, urge that the mere retention by the police of an acquitted person's arrest records does not give rise to an actionable claim. They also argue that, in the absence of a statute so directing, no individual has the right to compel the return or expungement of properly obtained arrest data.

I.

Recent years have witnessed a substantial upsurge in the number of cases and commentaries dealing with the problem before this Court. In no small part, this phenomenon is due to the advent of the computer age--an event which has drastically increased the power of industry and government to collect data--and the growing concern for the individual's loss of privacy as a natural by-product of our modern technology. A. Miller, Assault on Privacy, p. 67; See also, Countryman, The Diminishing Right of Privacy: The Dossier and the Computer, 49 Tex.L.Rev. 837 (1971).

Present day technology and modern police investigatory procedures have combined to produce a situation in which the arrested individual has a record on file in at least one, and probably several, law enforcement data centers. It is common knowledge that local enforcement agencies are requested to forward their data pertaining to arrests to the Federal Bureau of Investigation. ¹ The number of people affected by these practices is staggering. Although the exact number of individuals arrested in the United States is unknown, the FBI reported that on the basis of returns representing 21% Of the population a total of 5,773,998 arrests were made in 1969. Federal Bureau of Investigation, U.S. Department of Justice, Crime in the United States: Uniform Crime Reports, 108--109 (1969). ²

A second reason for the increased interest in the arrest record problem is an awareness of the economic and personal harm to an individual that results if his arrest becomes known to employers, credit agencies, or even neighbors. Notwithstanding the absence of a conviction, the mere record of arrest often works as a serious impediment and basis of discrimination in the search of employment, in securing professional, occupational, or other licenses, and in subsequent relations with the police and the courts. Most employers and employment agencies inquire whether an applicant has been arrested. An affirmative answer to this question, regardless of whether a conviction resulted, is often sufficient to deny the applicant further consideration. Where there are two or more applicants for the same job, those with previous arrest records clearly stand in a less favorable position than do other applicants. ³

Moreover, it is common knowledge that a man with an arrest record is much more apt to be subject to police scrutiny--the first to be questioned and the last eliminated as a suspect in an investigation. If he is subsequently arrested, his arrest record may arise to haunt him in presentence reports, which often include not only prior convictions but also prior arrests. United States v. Cifarelli, 401 F.2d 512 (2d Cir. 1968). Prosecutors use arrest records in determining whether or not to formally charge an accused or even whether or not to allow a person to sit as a juror. Losavio v. Mayber, Colo., 496 P.2d 1032. And the existence of an arrest record often results in the denial of bail pending trial. Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486 (1970). The seriousness of the arrest record problem, although perhaps questionable in the past, is now to well documented to be doubted. ⁴

A third impetus for the recent concern over the use of arrest records is the nascent recognition by our courts and legislatures that there exists in the individual a fundamental right of privacy--the right to be let alone. The parameters of this right were first extensively discussed in the famous law review article written in 1890 by Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193. Seventy-five years later, the United States Supreme Court decided Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, holding for the first time that there is a constitutional right to privacy. ⁵ The Court noted in giving substance to this right that it was dealing with a 'right to privacy older than the Bill of Rights, so rooted in the traditions and conscience of our people as to be ranked fundamental. ⁶

In Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, this Court recognized the right to privacy, stating:

'* * * We are urged to specifically recognize the theory of tortious conduct designated as the invasion of the right of privacy. We now do so, noting that our general assembly gave legislative recognition of the right of privacy by the enactment of 1967 Perm.Supp., C.R.S.1963, 40--4--33, in connection with the wiretapping and eavesdropping statute, which provides: 'There exists in the state of Colorado a right of privacy, an invasion of which may be compensated by damages.''

However, we did not there attempt to comprehensively define the right of privacy, nor to categorize the character of all invasions which might constitute a violation of this right.

II.

In considering the problem at hand, we find that the case law reflects a concern for the harm caused by arrest records, although an analysis reveals that, at best, courts are in conflict over the proper use of arrest records and what role, if any, the judiciary should play.

Until recently, most courts summarily denied litigants' pleas to secure the return of their arrest records upon acquittal or dismissal of charges against them. They reasoned that the needs of effective law enforcement outweigh any hamr to the individual and that the legislature, not the courts, should determine the proper use of arrest records. Herschel v. Dyra, 365 F.2d 17 (7th Cir. 1966); Spock v. District of Columbia, 283 A.2d 14 (D.C.Ct.App.1971); Sterling v. City of Oakland, 208 Cal.App.2d 1, 24 Cal.Rptr. 696; Mulkey v. Purdy, 234 So.2d 108 (Fla.); Kolb v. O'Connor, 14 Ill.App.2d 81, 142 N.E.2d 818; Weisberg v. Village, 46 Misc.2d 846, 260 N.Y.S.2d 554.

Cases granting petitioner's request for expungement or return of their arrest records fall into several categories. The oldest of these cases granted relief only if petitioner could point to improper dissemination of his records, such as their release to newspapermen or their placement in a 'rogue's gallery' after his acquittal. See Itzkovitch v. Whitaker, 115 La. 479, 39 So. 499; Schulman v. Whitaker, 117 La. 704, 42 So. 227; and Reed v. Harris, 348 Mo. 426, 153 S.W.2d 834.

A second group of cases of more recent origin has ordered the expungement of arrest records where, due to the impropriety of the original arrest, the records serve no legitimate police function. Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486 (1970); United States v. McLeod, 385 F.2d 734 (5th Cir. 1967); Gomez v. Wilson, D.C., 323 F.Supp. 87; Wheeler v. Goodman, D.C., 306 F.Supp. 58; Hughes v. Rizzo, D.C., 282 F.Supp. 881.

A final group of cases, which we consider to be persuasive and which lead to the result we here reach, has held that a court should expunge an arrest record or order its return when the harm to the individual's right of privacy or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records in police files. United States v. Kalish, D.C., 271 F.Supp. 968; Kowall v. United States, D.C., 53 F.R.D. 211; Eddy v. Moore, 5...