Johnson v. Palange, 77-297-A

• Decision Date: 20 September 1979
• Docket Number: No. 77-297-A,77-297-A
• Citation: 406 A.2d 360,122 R.I. 361
• Parties: William H. JOHNSON et al. v. Alfred S. PALANGE. ppeal.
• Court: Rhode Island Supreme Court

Page 360

406 A.2d 360

122 R.I. 361

William H. JOHNSON et al. v. Alfred S. PALANGE.

No. 77-297-Appeal.

Supreme Court of Rhode Island.

Sept. 20, 1979.

[122 R.I. 373] Aram K. Berberian, Warwick, for plaintiffs.

William Gerstenblatt, Providence, for defendant.

OPINION

JOSLIN, Justice.

This is a civil action that was originally brought by five individuals who joined as plaintiffs to recover damages from the defendant, Lieutenant Alfred S. Palange of the South Kingstown Police Department, for alleged false imprisonment and malicious prosecution. ¹ The case was tried before a jury in the Superior Court and resulted in a verdict for the defendant. After entry of judgment, the plaintiffs appealed.

In mid-afternoon on July 24, 1975, the five plaintiffs were congregated on a sidewalk in front of the Parrot North Cafe in South Kingstown where, according to their testimony, they were "just talking, shooting the breeze" when a South Kingstown police officer, Dale Barrington, appeared. He had been ordered to the scene in response to an anonymous telephone call reporting a disturbance. The plaintiffs testified that Officer Barrington requested them to leave the sidewalk and either return to the cafe or go home.

They further testified that they were accused of loitering, and that they did not receive a satisfactory response to their inquiry of what was meant by loitering. In any event they did not comply with the officer's request that they leave the sidewalk but instead, according to Officer Barrington and Officer Michael Brown, the next police officer to arrive on the scene, gesticulated and shouted vulgar epithets at the police officers. ² Officer Barrington testified that at one point several of the plaintiffs moved to within a foot of him and "threatened" him with clenched fists although no blows were ever struck. According to the officers this strident verbal confrontation lasted 8 or 9 minutes and ceased only after additional back-up police officers, including Lieutenant Palange, appeared on the scene.

The lieutenant testified that on his arrival there were fifteen to eighteen persons standing in a semicircle around plaintiffs and the officers then present, and that as the backup officers arrived the crowd began to disperse and plaintiffs reentered the cafe. The lieutenant was advised by Officer Barrington of what had occurred and was told that plaintiffs had surrounded him when he tried to speak to them; that they had "created a big stir and attracted attention all over the (Peacedale) Flats."

The plaintiffs were then arrested on the lieutenant's instructions and were taken to the police station where they were detained until 1 o'clock the following morning. They were released after signing an agreement to appear in District Court to answer charges that they "did quarrel, fight and behave in a disorderly manner * * * to the annoyance and disturbance of a portion of the peaceable inhabitants of the town" in violation of chapter 21, section 1 of the local ordinances, and also that they "obstruct(ed) a uniformed police officer * * * in the execution of his duty" in violation of G.L.1956 (1969 Reenactment) § 11-32-1, as amended by P.L.1971, ch. 220, § 1. Following the dismissal by the District Court of the criminal charges against them, ³ the five plaintiffs commenced this Superior Court civil action for false imprisonment and malicious prosecution against Lieutenant Palange alleging that he had ordered their arrests and detention without probable cause.

To establish their claim it was incumbent upon plaintiffs to show with respect to (1) the false imprisonment claim that they were detained without legal justification, Powers v. Carvalho, 117 R.I. 519, 526, 368 A.2d 1242, 1246 (1977); Webbier v. Thoroughbred Racing Protective Bureau, Inc., 105 R.I. 605, 613, 254 A.2d 285, 290 (1969); Barth v. Flad, 99 R.I. 446, 448, 208 A.2d 533, 535 (1965); and (2) the malicious prosecution claim that Lieutenant Palange had no probable cause for instituting a criminal action against them. Nagy v. McBurney, R.I., 392 A.2d 365, 367 (1978) Citing Powers v. Carvalho, 117 R.I. at 526, 368 A.2d at 1246; Lauzon v. Charroux, 18 R.I. 467, 470, 28 A. 975, 976 (1894). These two requisites have been held to be practically synonymous. See State v. Roach, 106 R.I. 280, 259 A.2d 119, 121 (1969); State v. McWeeney, 100 R.I. 394, 399, 216 A.2d 357, 360 (1966), and the guidelines for determining whether they existed are found in § 12-7-3(a). That enactment, prior to its amendment in 1973, provided that a police officer might lawfully arrest for a misdemeanor without a warrant when he:

"ha(d) reasonable ground to believe that a misdemeanor ha(d) been or (was) being committed in his presence and that the person to be arrested ha(d) committed or (was) committing it."

The plaintiffs argue initially ⁴ that the South Kingstown ordinance is so facially defective and patently unconstitutional that Lieutenant Palange could not reasonably have relied on it as supplying probable cause either for arresting them or for issuing criminal complaints against them, and thus that the trial justice erred in allowing the ordinance to be admitted into evidence. ⁵

To support this contention plaintiffs rely primarily on the line of cases headed by Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), where the Supreme Court held that the city of Jacksonville's so-called disorderly conduct ordinance was so vague as to be invalid. ⁶ The plaintiffs argue that the South Kingstown ordinance in question is so similar to the Jacksonville ordinance that it is patently unconstitutional thereby precluding the application in this case of the rule relied upon by the trial justice in admitting the ordinance into evidence the rule that police officers are entitled to rely on the presumptive validity of statutes and ordinances.

We applied this principle in Yekhtikian v. Blessing, 90 R.I. 287, 157 A.2d 669 (1960). In that case, the plaintiff who sued for false imprisonment argued that the police officer who arrested him for the commission of a statutory felony should be held liable for damages if the statute were thereafter held unconstitutional. We rejected that contention saying that:

"We think this position is untenable. It does more than impose an unfair burden on a conscientious police officer it does violence to sound public policy. One can readily imagine the uneasiness of a people dependent for the protection of their safety, lives and property on a police department, the members of which are reluctant to enforce an act of the legislature that has not as yet been judicially approved." Id. at 291, 157 A.2d at 671.

In Descoteaux v. Bonaventura, 115 R.I. 555, 350 A.2d 396 (1976), we applied the same principle where the detention complained of was justified by the defendant as having been made in a reliance on a statute which, though challenged constitutionally in that case, had not been invalidated at the time of the trial.

The plaintiffs recognize the doctrine of presumptive validity, but assert that it is inapposite here. They contend that the South Kingstown ordinance is not distinguishable from the Warwick ordinance which we declared unconstitutional in State v. Berker, 114 R.I. 72, 328 A.2d 729 (1974), ⁷ prior to the arrest out of which this action grows and that consequently, instead of applying the doctrine of presumptive validity to insulate defendant from liability, we should in substance be guided by the dicta in Michigan v. DeFillippo, --- U.S. ----, ----, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 345, 350 (1979), a case that was decided subsequent to the filing of plaintiffs' brief.

In that case the Court said:

"(t)he enactment of a law forecloses speculation by enforcement officers concerning its constitutionality with the possible exception of a law So grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." (Emphasis added.)

Merely because an attorney trained in the law, familiar with the Papachristou line of cases, and knowledgeable of State v. Berker, would recognize possible and perhaps even fatal frailties in the South Kingstown ordinance does not mean that a South Kingstown police officer responding to a complaint and faced with a situation proscribed by that ordinance should, notwithstanding his limited legal training, be held to the attorney's standard. Indeed, were we to impose on him the burden of determining as a question of law whether or not the existing ordinance was constitutionally entitled to enforcement, we would, in effect, be rejecting part of the reason underlying Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), where the Court, speaking through Mr. Chief Justice Warren, in holding that good-faith police action based upon a presumptively valid statute constitutes a valid defense in a damage action under 42 U.S.C. § 1983, observed:

"(a) policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." 386 U.S. at 555, 87 S.Ct. at 1218, 18 L.Ed.2d at 295.

Thus, absent any prior declaration by this court that the South Kingstown ordinance is unconstitutional, we are not prepared to say as a matter of law that Lieutenant Palangi was foreclosed from relying on the ordinance's presumptive validity and that the trial justice erred in admitting the ordinance into evidence.

The plaintiffs also argue that the ordinance should not have been admitted because it was preempted by G.L.1956 (1969 Reenactment) § 11-45-1 (since repealed) read in conjunction with G.L.1956 (1970 Reenactment) § 45-6-1 and because it consisted of sentence fragments making it "an obvious nullity." We believe the question of preemption, like the question of the ordinance's constitutionality, is one to be resolved by the courts and not by police...