Saloom v. Holder

Citation158 Ind.App. 177,304 N.E.2d 217
Decision Date18 October 1973
Docket NumberNo. 572A215,572A215
PartiesElizabeth SALOOM, Appellant (Plaintiff Below), v. John R. HOLDER and the City of Indianapolis, Appellees (Defendants Below).
CourtCourt of Appeals of Indiana
R. Davy Eaglefield, III, Barnes, Hickam, Pantzer & Boyd, Indianapolis, for appellant

Charles B. Huppert, Deputy Corp. Counsel, Gary R. Landau, Corp. Counsel, Indianapolis, for appellees.

BUCHANAN, Presiding Judge.


Plaintiff-Appellant Elizabeth Saloom (Saloom) appeals from a judgment entered by the trial court dismissing her action for false imprisonment and arrest against police officer John R. Holder (Holder) and the City of Indianapolis (City) arising out We affirm.

of her arrest under municipal ordinances alleged by Saloom to be unconstitutional.


The facts most favorable to the action taken by the trial court are as follows:

On June 19, 1969, Holder, an Indianapolis city policeman, without a warrant arrested Saloom at her home for taunting a police officer and being a disorderly person, in violation of two Indianapolis city ordinances 1 which provided for imprisonment as a possible penalty. Saloom had committed these offenses in Holder's presence.

Saloom was taken into custody and detained at the Marion County Jail for a short period until she was released on bail. The record does not show final disposition of these charges against her, although the Complaint alleges a forced expenditure 'for fines imposed as a result of her conviction.'

Saloom subsequently brought this civil action for false imprisonment against Holder and the City. At the close of the pleadings, the parties submitted a Stipulation requesting a ruling upon the constitutionality of these ordinances. Neither the pleadings nor the Stipulation set forth the specific grounds on which the ordinances were claimed to be unconstitutional.

On January 31, 1972, the trial court dismissed Saloom's action for failure to state a claim. Its entry also included certain conclusions of law (erroneously denominated 'findings of law'), i.e., the municipal ordinances for violation of which Saloom was arrested are misdemeanors; the municipal ordinances in question and under which Saloom was arrested are constitutional under the Indiana and United States Constitutions; it was constitutional for the City of Indianapolis to enact municipal ordinances which are misdemeanors imposing imprisonment as a sanction; and that the arrest was lawful and no liability attached to Holder for false imprisonment.

Saloom thereafter filed her Motion to Correct Errors, again without specifying the grounds for challenging the constitutionality of the two ordinances. Her Motion was overruled by the trial court, whereupon Saloom appeals.


The excellent briefs of the parties couch the issues in terms of the constitutionality of the ordinances in question, 2 except that the City does recognize that the dismissal of Saloom's Complaint could be justified even if the ordinances are unconstitutional--a question not otherwise considered by the trial court or the parties. For reasons which will hereinafter appear, the constitutional issues are eliminated from consideration and the issues confined to these questions:

ISSUE ONE. Assuming the municipal ordinances to be unconstitutional, did the trial court properly dismiss Saloom's Complaint as failing to state a claim for false imprisonment?

ISSUE TWO. Should this court decide the constitutionality of municipal ordinances even though specific constitutional grounds were not raised prior As to ISSUE ONE, Saloom contends that because the ordinances are presumably unconstitutional and void ab initio, no offense was committed by her and hence the arrest was illegal.

to appeal, and even if the constitutionality or lack thereof would have no effect upon Saloom's right of recovery against Holder and the City?

In reply, Holder and the City argue that even if this court were to invalidate the ordinances, no liability should be imposed upon Holder. They argue that a police officer should be protected against liability in connection with an arrest pursuant to an ordinance which is subsequently declared void.

As ISSUE TWO is raised sua sponte, counsel have not addressed themselves to this question.



CONCLUSION--It is our opinion that the trial court properly dismissed Saloom's Complaint for false imprisonment because, even if we assume the municipal ordinances under which she was arrested are unconstitutional, Officer Holder acted at least under color of lawful authority and therefore he and the City are protected from liability for false imprisonment.

Saloom would have us join her in the role of the iconoclast by striking down as unconstitutional long-standing municipal ordinances which impose imprisonment as a sanction. This invitation, which we must decline, infers that the exclusive way of determining Holder's (and the City's) liability for false arrest is by declaring the ordinances unconstitutional. This is not so, because Holder as a police officer could make a valid arrest for violation of ordinances subsequently determined to be unconstitutional. Our rejection of Saloom's approach is arrived at in this manner.

In theory, an unconstitutional law is void ab initio, i.e., is inoperative as though it had never been passed, and is regarded as though it never had any legal force and effect whatsoever. Oo litic Stone Co. v. Ridge (1910), 174 Ind. 558, 91 N.E. 944; State v. Steinwedel (1931), 203 Ind. 457, 180 N.E. 865.

This stringent doctrine is not an absolute. Even an unconstitutional Act has the semblance of valid law until invalidated. It is entirely logical that public officials, acting in good faith under or pursuant to such legislation, are afforded such 'color of law' as will protect them from personal liability. Ulrich v. Beatty (1966), 139 Ind.App. 174, 216 N.E.2d 737, 217 N.E.2d 858; City of Indianapolis v. Dillon (1937), 212 Ind. 172, 6 N.E.2d 966. See also: Dowd v. Grazer (1953), 233 Ind. 68, 116 N.E.2d 108; State v. Steinwedel, supra. Accord, Wilt v. Bueter (1916), 186 Ind. 98, 111 N.E. 926; Turner v. Sievers (1919), 73 Ind.App. 30, 126 N.E. 504; Stafford v. Childs (1920), 75 Ind.App. 285, 130 N.E. 429.

In Martin v. Ben Davis Conservancy District (1958), 238 Ind. 502, 153 N.E.2d 125, the Indiana Supreme Court expressed the following reasons for limiting application of the 'ab initio' doctrine in such circumstances:

'The theory that a law held unconstitutional is no law at all and void ab initio for all purposes, including retroactive invalidity runs counter to the hard facts of life. The actual existence of a statute prior to a determination of invalidity is an operative fact. Because of such de facto existence and reliance upon its validity, it has practical consequences which cannot be justly ignored. The past cannot always be erased by a simple judicial decree.' (Original emphasis.)

Acceptance of the 'color of law' doctrine has led courts in recent times to rule that a peace officer, acting in good faith, is protected against liability arising out of an arrest for violation of a law which is subsequently held unconstitutional. See, e.g., Pierson v. Ray (1967), 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288; McCray v. City of Lake Louisvilla (Ky.1960), 332 S.W.2d 837.

Dean Prosser, while applauding this development, places Indiana among those jurisdictions which follow a more restrictive rule, citing Sumner v. Beeler (1875), 50 Ind. 341. Prosser, The Law of Torts, § 25 (4th ed. 1971). Sumner has been misinterpreted. It upheld a citizen's right to sue a police officer for an illegal arrest under a statute which had been declared unconstitutional before the arrest, which is substantially different from an arrest by a police officer before a law has been declared unconstitutional.

While it is not unreasonable to presume that a police officer knows the law in effect at any given time in his jurisdiction, it is folly to presume he can prognosticate unconstitutionality. Courts and commentaries join in proclaiming the absurdity of requiring a law enforcement official to act at his peril in enforcing a statute or ordinance which is subsequently declared unconstitutional. See, Pierson v. Ray, supra; McCray v. City of Lake Louisvilla, supra; Prosser, The Law of Torts, supra; Rapacz, Protection of Officers Who Act Under Unconstitutional Statutes, 11 Minn.L.Rev. 585 (1927).

There is, however, authority emanating from this court which would impose such a harsh rule of liability upon private persons in these circumstances. In Coleman v. Mitnick (1964), 137 Ind.App. 125, 202 N.E.2d 577, 203 N.E.2d 834, one citizen caused the arrest of another for violation of a subsequently invalidated ordinance and liability was imposed for false imprisonment.

Our quest is to determine the liability, not of a private person, but of a police officer, a public servant whose ongoing duties require that he protect the peace by apprehending violators of the law. We conceive of no reason to extend the rule of Coleman to law enforcement officials. Rather it is just that they be protected from liability for arrests effected under ordinances or laws subsequently declared to be unconstitutional. Martin v. Ben Davis Conservancy District, supra; Ulrich v. Beatty, supra.


CONCLUSION--It is our opinion that this court cannot determine the constitutionality of these two ordinances because the record fails to disclose that the question was properly raised, and even if properly raised and the ordinances found to be unconstitutional, Saloom's Complaint was properly dismissed.


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