Hanson v. City of Snohomish
| Decision Date | 27 May 1993 |
| Docket Number | No. 59269-1,59269-1 |
| Citation | 852 P.2d 295,121 Wn.2d 552 |
| Court | Washington Supreme Court |
| Parties | Gerald L. HANSON, Respondent, v. CITY OF SNOHOMISH; Police Chief Patrick Murphy and Jane Doe Murphy, husband and wife, Petitioners. En Banc |
Allen & Hansen, P.S., David Allen, Richard Hansen, Todd Maybrown, Seattle, for respondent.
This action for malicious prosecution, false arrest and imprisonment, and violation of civil rights is based on the prosecution of Respondent Gerald L. Hanson for assault in the first degree. The issue is whether a conviction, which is later reversed, establishes the existence of probable cause as a matter of law. We hold that it does and affirm the trial court.
Gerald L. Hanson was convicted in 1985 of assault in the first degree. The criminal proceeding was based on the shooting of a convenience store clerk in Snohomish, Washington. The victim ultimately identified Hanson as her assailant. Three procedures were used by the Snohomish police to assist her in making that identification. First, she was shown a composite drawing which she believed was based on her own description of her attacker. Second, she was shown a photographic montage. And, third, she was shown a videotape lineup. The three procedures, which resulted in the identification of Hanson as the assailant, were accomplished within 2 days of the assault.
Hanson moved to suppress the identification on the ground that the procedures used by investigating police officers were impermissibly suggestive. The motion was denied and the identification evidence, along with other evidence, was admitted at Hanson's criminal trial. A jury found him guilty as charged.
Hanson appealed his conviction arguing, in part, that the trial court erred in denying his motion to suppress the identification evidence. The Court of Appeals reversed the trial By the time his second trial was concluded, Hanson had spent approximately 18 months in jail.
court and remanded for a new trial because the admission into evidence at the trial of fiction written by Hanson was held to be irrelevant and prejudicial. 1 However, the Court of Appeals went on to hold that the identification evidence was properly admitted, agreeing with the trial court that the procedures used by the police were not so unreliable or suggestive as to give rise to a substantial likelihood of misidentification. 2 On remand for a new trial, Hanson was acquitted.
While he was incarcerated, and while the criminal appeal was pending, Hanson filed the present action against the City of Snohomish and its police chief alleging: (1) malicious prosecution; (2) false arrest and imprisonment; (3) negligent investigation; (4) defamation; and (5) civil rights violations. The malicious prosecution, false arrest and imprisonment, civil rights violations and negligent investigation causes of action are based on Hanson's argument that the identification procedures used by the police were improperly suggestive.
The trial court in the civil action granted the City's motion for summary judgment of dismissal as to the malicious prosecution, false arrest and imprisonment, negligent investigation and civil rights claims. 3 The trial court reasoned that the doctrine of collateral estoppel barred Hanson from relitigating the issue of whether the identification procedures used by the police were improperly suggestive. The Court of Appeals reversed, holding the requirements for collateral estoppel were not met. 4 We granted review and, pursuant to RAP 12.1, asked the parties for additional briefing on the issue of whether Hanson's conviction, even though overturned, establishes probable cause as a matter of law. We hold that it does, reverse the Court of Appeals and reinstate the trial court's summary judgment of dismissal.
Two basic issues are here presented.
ISSUE ONE. Does a conviction which is subsequently reversed conclusively establish the existence of probable cause, absent a showing that the conviction was obtained by fraud, perjury or other corrupt means?
ISSUE TWO. Does the doctrine of collateral estoppel bar relitigation of the impropriety of identification procedures used by the police in initiating the criminal action against Gerald Hanson?
ISSUE ONE.
CONCLUSION. The conviction of an accused conclusively establishes the existence of probable cause, thus defeating an action for malicious prosecution, unless the conviction was obtained by fraud, perjury or other corrupt means.
This case was determined by summary judgment. We thus engage in the same inquiry as the trial court, 5 viewing the facts and all reasonable inferences therefrom in a light most favorable to the nonmoving party. 6 Questions of law are reviewed de novo. 7
Neither the parties, the trial court, nor the Court of Appeals considered whether Mr. Hanson's conviction for assault in the first degree conclusively established probable cause as a matter of law.
Although the general rule is that an issue or theory which is not presented to the trial court will not be considered on appeal, that rule "is not inexorable and has its limitations". Maynard Inv. Co. v. McCann, 77 Wash.2d 616, 621, 465 P.2d 657 (1970). 8 One such limitation is set forth in RAP 12.1(b), which provides:
If the appellate court concludes that an issue which is not set forth in the briefs should be considered to properly decide a case, the court may notify the parties and give them an opportunity to present written argument on the issue raised by the court.
In order to properly decide this matter, we have applied this rule in the present case. 9
We agree with the trial court's dismissal of Hanson's malicious prosecution, false arrest, false imprisonment, and civil rights claims. We affirm, however, on a different theory. 10
Our analysis begins with the recognition that malicious prosecution actions are not favored in law. 11
The reasons assigned for this attitude on the part of the courts are that it is to the best interest of society that those who offend against the law shall be promptly punished; that any citizen who has good reason to believe that the law has been violated shall have the right to take proper steps to cause the arrest of the offender; and that in taking such steps the citizen who acts in good faith shall not be subjected to damages merely because the accused is not convicted; yet, withal, that no [person] shall be charged with a crime, exposed to the danger of a conviction, and subjected to the expense, vexation and ignominy of a public trial merely for the gratification of another's malice or ill will.
Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 496-97, 125 P.2d 681 (1942). 12
Hence, as has often been pointed out, the action has been hedged about by limitations more stringent than those surrounding actions based on almost any other conduct causing damage to another, and the courts have allowed recovery only when the requirements limiting it have been fully complied with.
52 Am.Jur.2d Malicious Prosecution § 5, at 188-89 (1970). 13
In order to maintain an action for malicious prosecution in this state, a plaintiff must plead and prove the following elements: (1) that the prosecution claimed to have been malicious was instituted or continued by the defendant; (2) that there was want of probable cause for the institution or continuation of the prosecution; (3) that the proceedings were instituted or continued through malice; (4) that the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; and (5) that the plaintiff suffered injury or damage as a result of the prosecution. 14 Although all elements must be proved, malice and want of probable cause constitute the gist of a malicious prosecution action. 15
If probable cause is established, the action fails, for probable cause is a complete defense to an action for malicious prosecution. 16
A majority of courts holds that probable cause is established by the prior conviction of the malicious prosecution plaintiff, even where that conviction has been overturned. 17 This also is the Restatement view. The Restatement (Second) of Torts § 667(1) (1977) provides:
The conviction of the accused by a magistrate or trial court, although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means.
The comment to this subsection explains that the rule applies
both when the proceedings are abandoned after the conviction has been set aside by the appellate court and when after a conviction has been set aside, the accused is acquitted upon a second trial. Unless the conviction was obtained by fraud, perjury or other corrupt means, the opinion of the trier of fact expressed by its verdict under the rule that the guilt of the accused must be established beyond a reasonable doubt, is regarded as conclusive evidence that the person who initiated the proceedings had reasonable grounds for so doing.
Restatement (Second) of Torts § 667, comment b, at 437 (1977).
A conviction is strong evidence that there was enough of a case to persuade a jury of guilt beyond a reasonable doubt, and thus is evidence that there was, at the very least, probable cause to prosecute. 18 This majority view is consistent with the conclusion reached by this court in Hall v. Dare, 147 Wash. 264, 266 P. 162 (1928). In Hall, the sole issue was whether a conviction established the existence of probable cause if the conviction was shown to be void or to be the result of perjury. This court did not expressly adopt the majority and Restatement view; it did, however, direct dismissal of the malicious prosecution after determining that the conviction in that case was not void and was not obtained by fraud or perjury. 19
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