Eddy v. Moore

Citation487 P.2d 211,5 Wn.App. 334
Decision Date12 July 1971
Docket NumberNo. 625--I,625--I
Parties, 46 A.L.R.3d 889 Harriet EDDY, Appellant, v. W. F. MOORE, Acting Chief of Police of the City of Seattle, a municipal corporation, Respondent.
CourtCourt of Appeals of Washington

Thomas J. Isaac, Seattle, for appellant.

A. L. Newbould, Corp. Counsel, J. Roger Nowell, Asst. Corp. Counsel, Seattle, for respondent.

UTTER, Judge.

Harriet Eddy was arrested and charged with assault by the Seattle Police Department. After her arrest she was fingerprinted and photographed, and the fingerprints and photographs were placed in the files of the police department. At trial, the charges against her were dismissed. She then demanded from the Chief of Police, one W. F. Moore, the return of her fingerprints and photographs. Chief Moore refused, and Mrs. Eddy sought a petition for a writ of mandate ordering him to show cause why they should not be returned. The trial court refused to issue the writ and held she had no legal right to their return.

The record on appeal is before us on an agreed statement of facts. There was, apparently, no testimony taken in the trial court. No findings of fact are contrained in the agreed statement of facts, and there is, therefore, no factual data available to us to offer either any justification for retention of the prints and photographs or to indicate to us what, in fact, is the ability of the police department to keep its files and records confidential and restricted from scrutiny.

Mrs. Eddy's assignments of error are all directed to the failure of the court to recognize her right of privacy in her fingerprints and photographs, and the violation of this right by the failure of the police department to return them, without factual justification, upon her acquittal. Respondent, on the other hand, urges there is implied statutory authority for the retention of the fingerprints and photographs by the criminal identification bureau of all persons arrested for specifically enumerated crimes. 1 He further urges that an acquitted citizen has no right to the return of photographs and fingerprints in absence of a statute directing their return and that there is no legal duty requiring him to return the identification data to the appellant.

There has been a substantial body of litigation concerning photographs and files maintained by the police and efforts made to obtain their return based upon an equitable right of privacy. These cases have held the decision to release or retain arrest records was within the realm of police discretion and have justified this holding by statements that the police, in protecting society should be granted sufficient authority to choose those things, including arrest records, which will enable them to most effectively and efficiently discharge their duty in protecting society. 2

The public display of an innocent person's photograph has been the exception to the general rule. Here, courts have justified their use of equitable powers in broad language:

We think that the publication of an innocent man's photograph in the rogues' gallery gives rise to sufficient grounds to sustain an injunction.

There is a right in equity to protect a person from such an invasion of private rights.

Every one who does not violate the law can insist upon being let alone * * *

Itzkovitch v. Whitaker, 115 La. 479, 39 So. 499 (1905), affirmed in effect by Itzkovitch v. Whitaker, 117 La. 708, 42 So. 228 (1906). In these display of photograph cases, courts expressed a sensitivity to the rights of those who had been acquitted of criminal charges. In Downs v. Swann, 111 Md. 53, 64, 73 A. 653 (1909), the court dissolved an injunction restraining the taking of photographs as the result of the failure to allege that it was the custom of police officers to display the photographs, but added,

we must not be understood by so doing to countenance the placing in the rouges' gallery of the photograph of any person, not a habitual criminal, who has been arrested, but not convicted on a criminal charge, * * * Police officers have no right to needlessly or wantonly injure in any respect persons whom they are called upon in the course of their duty to arrest or detain, * * * 3

These cases have been amalgamated into the current literature involving the development of an equitable right of privacy. This right was first delineated in the landmark article, S. Warren & L. Breandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). In a subsequent discussion of the expansion of the doctrine, William L. Prosser, 4 in his article on privacy, develops an analysis which would recognize four distinct kinds of invasion of four different interests of a plaintiff tied together under a common name of a right of privacy. These are:

(1) Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

(2) Public disclosure of embarrassing private facts about the plaintiff.

(3) Publicity which places the plaintiff in a false light in the public eye.

(4) Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

Prosser does not find any intrusion into a person's private affairs where police, acting within their powers, take his photographs and fingerprints or measurements. 5 He does, however, find a violation of a right of privacy in placing one in a false light in the public eye where there is the inclusion of the plaintiff's name, photographs and fingerprints in a public 'rogues' gallery' of convicted criminals, when he has not in fact been convicted of a crime. Prosser notes, 'Although the police are clearly privileged to make such a record in the first instance, and to use it for any legitimate purpose pending trial, or even after conviction, the element of false publicity in the inclusion among the convicted goes beyond the privilege.' 6

The Washington courts have not taken a position, prior to this case, on the right of a person acquitted of a crime to the return of their fingerprints and photographs taken pursuant to arrest. In Hodgeman v. Olsen, 86 Wash. 615, 150 P. 1122 (1915), the plaintiff had been confined in the state reformatory, paroled, and then eventually granted a full pardon by the governor. After the pardon was granted, Hodgeman sought the return of his identification records held by the reformatory. The court refused to order their return and noted that where the pictures were being held as a part of the records of an institution, there was no legal duty to destroy them, in absence of a statute imposing that duty.

The court expressed doubts about a case where no conviction was obtained and noted: 'We do not hold that any official has the implied power to take and retain the picture and measurements of persons merely accused of crime. That question is not before us.'

The cases dealing with the equitable right of privacy and the comments of Prosser and other commentators take us to the threshold of a recognition of a right in an individual to be free of improper use of his fingerprints and photographs by the state but stop short of establishing a constitutional right of privacy and grant too much discretion without need for justification, to the state to determine what records are needed to effectuate the law enforcement function.

In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), a law forbidding the dissemination of birth control information was struck down as a violation of the right to marital privacy. The court, in the majority opinion written by Mr. Justice Douglas, expanded the right of privacy beyond the limits of the enumerated protections found in the First, Second, and Fifth Amendments and gave it independent existence. The court noted,

specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. * * * Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'

The court noted in giving substance to the right that it was dealing with 'a right of privacy older than the Bill of Rights' and held that a law forbidding the use of contraceptives could not stand in light of the familiar principle, 'so often applied by this Court, that a 'governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. '' This view was concurred in by four other judges.

Justice Goldberg in a separate concurring opinion, quoting from Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934), stated the due process clause protects those liberties that are 'so rooted in the traditions and conscience of our people as to be ranked as fundamental' and that the Ninth Amendment 'simply lends strong support to the view that the 'liberty' protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.' Specific guidelines in the determination of what a fundamental right is were suggested...

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    • United States
    • United States Supreme Court
    • March 23, 1976
    ...(1974); United States v. Kalish, 271 F.Supp. 968 (P.R.1967); Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972); Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211 (1971). I fear that after today's decision, these nascent doctrines will never have the opportunity for full growth and analysis. S......
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    • United States State Supreme Judicial Court of Massachusetts
    • March 16, 1978
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    • United States
    • University of Pennsylvania Law Review Vol. 169 No. 3, February 2021
    • February 1, 2021
    ...exonerated. Further, the court recounted how unlawful arrests lead to harassment of "hippies" and civil rights workers); Eddy v. Moore, 487 P.2d 211, 217 (Wash. Ct. App. 1971) (holding that a person who has been acquitted has a right to privacy to the fingerprints officers have taken and ph......
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    ...(M.D. Fla. 1979). Duhart, D. T. (2001). Violence in the workplace, 1993-1999. Washington, DC: Bureau of Justice Statistics. Eddy v. Moore, 487 P.2d 211 (Wash. Ct. App. Eggleston, E. P., & Laub, J. H. (2002). The onset of adult offending: A neglected dimension of the criminal career. Journal......

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