State ex rel. Mavity v. Tyndall
| Decision Date | 24 May 1946 |
| Docket Number | 28167. |
| Parties | STATE ex rel. MAVITY v. TYNDALL et al. |
| Court | Indiana Supreme Court |
Earl J. Wynn, of Indianapolis, for appellant.
Arch N. Bobbitt, Corp. Counsel, and Henry B. Krug, City Atty. both of Indianapolis, for appellees.
May a citizen who has been acquitted of a misdemeanor compel the surrender or destruction of his fingerprints, photographs and other identifying records made by city police officers at the time of his arrest? The trial court gave a negative answer to this interesting question by sustaining a demurrer to his complaint. Judgment for failure to plead over was followed by this appeal.
Though titled and verified as a mandamus action nevertheless the ten paragraphs of complaint may have been treated below as a suit in equity. The judgment was not against the plaintiff but against 'the plaintiff, John L. Mavity.' He was the real party in interest. See City of Indianapolis v Central Amusement Co., 1918, 187 Ind. 387, 119 N.E. 481. Appellees are named as individuals but their liability, if any, is as officials--Mayor, Board of Public Safety, and former and present Chief of Police--of the City of Indianapolis, and as such doubtless they were intended to be charged. In this respect they have not challenged the complaint.
The essential facts averred are that Mavity, hereinafter called appellant, is 46 years old, married, employed as a locomotive engineer and fireman and has been a resident of Indianapolis for many years. Aside from a traffic violation he had never been charged with any criminal offense until January 27 1944, when early in the afternoon while conducting himself in an orderly manner on a public street he was arrested, taken to the headquarters of the Indianapolis Police Department and 'slated' on two misdemeanors, gaming and keeping a gaming device. At that time against his will his fingerprint impressions were made in triplicate. He was photographed with a card, on which there were certain numbers, placed across his chest. His signature was taken and a personal description added. One set of these records was sent to the Indiana State Police, another to the Federal Bureau of Investigation at Washington, D. C., and the third retained and filed at police headquarters in Indianapolis. A few days later, after a hearing, the charges were dismissed. He then demanded the return of the data on file with the Indianapolis Police Department and that its officers obtain the return of the copies sent to the Federal Bureau of Investigation and the Indiana State Police.
He avers that:
'It is the common practice * * * to maintain at the Indianapolis Police Department what are commonly known as 'rogue's galleries', in which are placed, for public exhibition, the photographs of persons, arrested * * * being those of males and females, old, senile, middle aged, and young; the guilty and the not guilty; first offenders and hardened criminals; irresponsible citizens and transients, on the one hand, and responsible and law abiding citizens, on the other, who, through no fault of their own have fallen into the toils of the Indianapolis police department, and been found not guilty by a court of competent jurisdiction.'
It is not charged directly, but may be inferred, that his picture was put or intended to be put in such a gallery. He complains that exhibition of his photographs and his fingerprint impressions as a part of the criminal records injures his reputation and causes him humiliation and mental suffering. There is an allegation charging violation of Art. 1, § 16, of the Constitution of Indiana, relating to cruel and unusual punishment, which we dismiss as inapplicable. He sets out certain rules of the Indianapolis Police Department requiring fingerprinting and photographs of persons suspected of felonies and who have criminal records, but none applying to persons arrested for misdemeanors. The relief requested includes return to him or the destruction of all the identification records above mentioned in the possession of the Indianapolis Police Department, orders against appellees to request the return of what was sent to the Indiana State Police and the Federal Bureau of Investigation, and a negative injunction against 'keeping in the said police files' and against 'continuing their request that the Federal Bureau of Investigation, Washington, D. C., and the Indiana State Police, Indianapolis, Indiana, keep and file' said data.
When the practices complained of were begun or by what authority, except as stated in the rules above referred to, does not appear. It may be assumed, however, that police officers making arrests in Indianapolis take such data pursuant either to direct orders of their superiors or to an established custom, since an identification department is ordinarily deemed essential to the operation of any modern metropolitan police system. It is not charged that appellant was the victim of a variation from usual procedure. In fact, the quotation from the complaint indicates that every one taken into custody by the Indianapolis police is required to submit to photographing and, we may assume, fingerprinting.
Since municipal government in Indiana is of statutory creation, it follows that operation of a city police department requires legislative authority. Undoubtedly the General Assembly might prescribe in detail means and methods for conducting the Indianapolis police department. But the legislature has not chosen to do more than authorize in general terms the Board of Public Safety of establish, regulate and operate a police system. §§ 48-6101, 48-6102, Burns' 1933. In such operation we think it is quite clear that the Board, Chief of Police and other police officers are exercising an administrative function of the executive branch of the government, for the obligation and power to enforce the laws is executive, rather than legislative. In the absence of statutory direction or regulation the power to maintain and operate a city police system carries with it the right and duty to exercise reasonable discretion in such maintenance and operation. Courts should be cautious about interference with such an executive discretion.
The legislature undoubtedly has the power by statute to declare a public policy binding upon a city police department even though the statute does not purport ot regulate city police activities. The only Indiana statutes that deal with the right to fingerprint and photograph for police purposes are found in Ch. 344 of the Acts of 1945, p. 1622, Burns' Ann.St. § 47-846 et seq., establishing the State Police Department. Under § 11 thereof and the ten following sections a 'Bureau of Criminal Identification and Investigation' is created and the powers and duties of its personnel prescribed. The members of the State Police force are required to fingerprint and photograph persons arrested for serious offenses and have the discretion to do so in arrests for misdemeanors. § 47-865, Burns' 1933 Supp. The Act puts no obligation upon city police departments, sheriffs and similar peace officers except to require their cooperation with the Bureau 'in establishing and maintaining an efficient and coordinating system of identification.' § 47-858, Burns' 1933 Supp. Without reciting in detail other provisions of the Act it is sufficient to say that the public policy manifest in its directives to members of the State Police force permits city police authorities to exercise a similar discretion in arrests for misdemeanors. There is no suggestion in the Act that identification date having once been obtained shall be surrendered or destroyed. They are to be filed as a part of the 'coordinating system of identification.' Filing implies retention.
As to the making of the fingerprints and photographs appellant concedes that the arresting officers were within their rights. This is the modern rule which the frequently cited case of State ex rel. Bruns v. Clausmeier et al., 1900, 154 Ind. 599, 57 N.E. 541, 50 L.R.A. 73, 77 Am.St.Rep. 511, helped establish. Appellant contends, however, that the language of that case excludes any right of police officials to retain the prints and pictures. In other words, he argues that they are for but two uses, the prisoner's identification and safekeeping pending trial and to aid in his recapture if he escapes and that after acquittal they are not needed by the peace officers and should either be destroyed or surrendered. He bases his claim to such relief upon his right of privacy.
The right of privacy is supported by logic and the weight of authority. The cases and most of the law magazine articles on the subject are cited and epitomized in an exhaustive and analytical note in 138 A.L.R. 22 (1942) in which the author, R. T. Kimbrough, shows the development of the doctrine from its origin (1890) in the 'classic article' by Samuel D. Warren and Louis D. Brandeis entitled The Right To Privacy. 4 Harvard Law Rev. 193. Since Mr. Kimbrough's note was written a few cases have added to the literature on the subject, including Barber v. Time, Inc., 1942, 348 Mo. 1199, 159 S.W.2d 291; Cason v. Baskin, 1944, 155 Fla. 198, 20 So.2d 243; and several New Jersey cases hereinafter discussed. See also State ex rel. Reed v. Harris, 1941, 348 Mo. 426, 153 S.W.2d 834, decided about the time when Mr. Kimbrough's note was written.
Most of the law of privacy was developed as the result of intrusion for news or commercial purposes into the private affairs of the complainant. Comparatively few decisions involve police identification practices. The cases are collected in McGovern v. VanRiper, 1945, 137 N.J.Eq. 24, 43 A.2d 514, upon which appellant strongly relies. A New Jersey statute requires, immediately upon arrest for...
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