Garrett v. City of Bloomington

• Decision Date: 21 May 1985
• Docket Number: No. 1-784A173,1-784A173
• Citation: 478 N.E.2d 89
• Parties: David A. GARRETT, Appellant, v. CITY OF BLOOMINGTON, Indiana; Bloomington Police Department Dispatcher Evelyn R. Gaston; Richard Hunter, Bloomington Police Officer # 162; Alan K. Pointer, Bloomington Police Officer # 164; and Paul E. Wells, Bloomington Police Officer # 202, Appellees.
• Court: Indiana Appellate Court

Page 89

478 N.E.2d 89

David A. GARRETT, Appellant, v. CITY OF BLOOMINGTON, Indiana; Bloomington Police Department Dispatcher Evelyn R. Gaston; Richard Hunter, Bloomington Police Officer # 162; Alan K. Pointer, Bloomington Police Officer # 164; and Paul E. Wells, Bloomington Police Officer # 202, Appellees.

No. 1-784A173.

Court of Appeals of Indiana First District.

May 21, 1985.

Robert W. Beck, Sallee, Beck & Kenworthy, Bloomington, for appellant.

David L. Ferguson, Stephen L. Ferguson, Ferguson, Ferguson & Lloyd, Bloomington, for appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Two cases were consolidated for the purpose of this appeal: one, Garrett v. City of Bloomington, et al., involves the grant of defendant's motion for summary judgment in an action for false arrest and imprisonment; the other, City of Bloomington, et al. v. Garrett, concerns the City's petition for the recovery of attorney fees expended in defending the false arrest claim.

We affirm the judgment in both cases.

STATEMENT OF THE FACTS

On June 18th, 1981, a call was received on the 911 emergency telephone line by the Bloomington Police Department. The Dispatcher (defendant Gaston), answered the call and locked the line open, rendering it incapable of disconnection. The call consisted of maniacal laughter produced by a mechanical laughbox. When the dispatcher's repeated attempts to reprimand the caller were answered by the continued use of the laughbox, she requested Indiana Bell to locate the origin of the call.

Indiana Bell traced the open line to the apartment of David Garrett, the plaintiff-appellant in this case. Meanwhile, Garrett returned to the apartment at approximately 1:30 a.m., after he left work. His roommate was entertaining some friends and they had been drinking. Dispatcher Gaston communicated the information from Bell to three officers of the Bloomington Police Department (defendants Wells, Hunter, and Pointer). The officers positioned themselves outside the door of Garrett's apartment. Officer Wells radioed the dispatcher and instructed her to ring back the open line. At this time, the door to the apartment was opened by one of the occupants. The telephone was in the officers' view. David Garrett answered the phone. Garrett proceeded to verbally abuse Dispatcher Gaston. The officers proceeded through the open door, and arrested Garrett on a misdemeanor charge of making a harrassing telephone call on the 911 emergency line. He was searched and placed in a detention cell for several hours. The charge was later dismissed.

During the course of this lawsuit, defendant police officers moved for summary judgment, alleging the above facts as contained in various affidavits, depositions and answers to admissions. Garrett filed an affidavit in opposition stating that he did not make any calls to the 911 emergency line, and that he did not see or hear anyone in his apartment make a call to the 911 emergency line.

Initially, the trial court granted Garrett's summary judgment motion; then, after the officers filed a motion to reconsider, the trial court granted the officers' motion for summary judgment, stating that in order to sustain an action for false arrest, a plaintiff has the burden of proving that the defendants acted in bad faith or unreasonably believed their actions to be constitutional. The trial judge noted further that the officers raised this complete defense by stating in their affidavit that they in good faith believed they were acting constitutionally: "there is thus not (sic) genuine issue that defendants lacked either good faith or a reasonable basis. With either good faith or a reasonable basis, the officers are entitled to judgment as a matter of law." (R. 154.)

After the trial court rendered his decision on the false arrest claim, the officers moved, pursuant to IND.CODE 34-4-16.5-19 of the Indiana Tort Claims Act, for payment of their attorney fees by Garrett on the grounds that the claim was frivolous, unreasonable, and in bad faith. The trial judge denied the motion.

ISSUES

Garrett raises the following issues on appeal, which we have restated:

I. Did the trial court err when it found no genuine issue of fact existed for trial?

II. Did the trial court err in finding the plaintiff bore the burden of pleading and proving subjective bad faith on the part of the police officers when they made the misdemeanor arrest?

III. Did the trial court err in not awarding attorney fees?

We will discuss the first two issues together.

DISCUSSION AND DECISION

Issues I, II: Burden of proof.

Our standard of review is the same as the trial court's--we must determine whether a genuine issue of material fact existed and whether the moving party is entitled to judgment as a matter of law. Johnson v. Padilla, (1982) Ind.App., 433 N.E.2d 393. "A fact is material if it is decisive of either the action or a relevant secondary issue". Consolidated City of Indianapolis v. Cutshaw, (1983) Ind.App., 443 N.E.2d 853, 856. A summary judgment proceeding cannot and should not be used as an abbreviated trial. Cutshaw, supra. The trial judge may not weigh the evidence in such a proceeding. In reviewing the propriety of a summary judgment, the facts alleged by the party opposing the motion must be taken as true. Boswell v. Lyon, (1980) Ind.App., 401 N.E.2d 735.

Garrett states that the law in Indiana is that:

"When officers act with a facially valid warrant or pursuant to a facially valid statute, even if the warrant is later found to be defective or the statute later declared to be unconstitutional, the police officer cannot be held liable for the false arrest so long as he believes in the constitutionality of the statute or warrant and acted in good faith thereon."

Appellant's brief, page 6.

His argument, however, is two-fold: first, he asserts that in the instant case, there was no valid process, it was a misdemeanor arrest, and the alleged act occurred outside the presence of a police officer; second, he argues that the trial judge erred in finding that he had the burden of proving bad faith on the part of the police officers.

Ordinarily, neither a police officer nor a private person may make an arrest without a warrant for a misdemeanor unless it was committed in his presence. 32 Am.Jur.2d False Imprisonment, Section 98. See Works v. State, (1977) 266 Ind. 250, 362 N.E.2d 144. A police officer may arrest without a warrant when he has probable cause to believe the person arrested is committing or attempting to commit a misdemeanor in his presence. IND.CODE 35-33-1-1. "It is also clear that the existence of probable cause to arrest is determined upon the basis of collective information known to the law enforcement organization, and the observance of the misdemeanor may be part of that collective information." Brown v. State, (1982) Ind., 442 N.E.2d 1109.

Here, as appellee point out, the offense of telephone harassment was committed in the presence of the dispatcher, who locked the phone line open and then had the line traced to Garrett's apartment. The dispatcher then relayed this information to other officers, who were able to corroborate the information upon their arrival at Garrett's apartment by observing Garrett answer the phone and verbally abuse the dispatcher. The offense occurred in the presence of the dispatcher and became part of the collective information known to the Bloomington Police Department. The arrest was valid.

Garrett's second contention, however, gives us greater pause. He states that the trial judge erred in finding that he had the burden of proving bad faith on the part of the police officers.

Recent Indiana decisions hold that proof of the absence of probable cause is essential to the plaintiff's cause of action for false arrest. Gomez v. Adams, (1984) Ind.App., 462 N.E.2d 212 (trans. denied); City of South Bend v. Fleming, (1979) Ind.App., 397 N.E.2d 1075 (trans. denied). Likewise, a showing of lack of probable cause is necessary for a successful suit for malicious prosecution. Gomez, supra. Probable cause for arrest is demonstrated by facts and circumstances known to the arresting officer which would warrant a person of reasonable caution and prudence in believing that the accused had committed or was committing a criminal offense. Gomez, supra. Thus, if the plaintiff in a false arrest action fails to demonstrate the absence of probable cause, or if the record as a whole reflects probable cause for the arrest, then the plaintiff's case must fail and the inquiry comes to a halt.

There is, however, a line of cases and authority which holds that the existence of probable cause in a false arrest case is an affirmative defense which must be pleaded and proven by the defendant. See, e.g., Pierson v. Ray, (1967) 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288; Banish v. Locks, (7th Cir.1969) 414 F.2d 638. We find that no sound reason exists to distinguish the burden of proof in a false arrest action from a malicious prosecution action.

Another difficult hurdle for the plaintiff was created in certain federal cases which had as their basis actions brought pursuant to 42 U.S.C., Sec. 1983, a provision of the federal Civil Rights Act. In Banish, along with the Sec. 1983 claim, the plaintiff also charged the defendants, the sheriff of St. Joseph County, Indiana, and certain deputy sheriffs and other county officials, with false arrest, false imprisonment, and malicious prosecution. Banish, supra, at 639. The Banish court cited with approval from Pierson v. Ray, wherein the U.S. Supreme Court held that the defense of good faith and probable cause, which is available to police officers in a common-law action for false arrest and imprisonment, is also available to them in an action under Sec. 1983. Id. at 641. Further, in regard to an action for malicious prosecution, as opposed to false arrest and imprisonment actions, the Banish court stated that "probable cause is an essential element of plaintiff's...