Tabor v. Moore, 990--I

• Decision Date: 24 April 1972
• Docket Number: No. 990--I,990--I
• Citation: 496 P.2d 361,6 Wn.App. 759
• Parties: Langston TABOR et al., Appellants, v. Frank MOORE, in his official capacity as Acting Chief of Police of the City of Seattle Police Department, Washington, and his Agents, Subordinates, and Employees, et al., Respondents.
• Court: Washington Court of Appeals

Page 759

6 Wn.App. 759

496 P.2d 361

Langston TABOR et al., Appellants, v. Frank MOORE, in his official capacity as Acting Chief of Police of the City of Seattle Police Department Washington, and his Agents Subordinates, and Employees et al., Respondents.

No. 990--I.

Court of Appeals of Washington, Division 1, Panel Two.

April 24, 1972.

As Corrected June 9, 1972.

Rehearing Denied July 5, 1972.

Petition for Review Granted Aug. 21, 1972.

David Allen, John Gant, Lawrence Halpern, Seattle, for appellants; Cornelius Peck, Seattle, of counsel.

Christopher T. Bayley, King County Pros. Atty., Kenneth W. Sharaga, Deputy Pros. Atty., Seattle, for respondents.

JAMES, Judge.

Plaintiffs, asserting their standing as taxpayers, allege: (1) that the criminal law enforcement officials of King County and the City of Seattle are engaged in a deliberate 'continuing and on-going practice of holding persons arrested without warrants on 'open-charge' or 'suspicion' bookings for unreasonable lengths of time'; (2) that such a practice is 'illegal and violative of the Fourth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Article 1, Sections 3, 7, 10, 20, and 22 of the Washington State Constitution'; and (3) that these illegal acts necessarily involve the illegal expenditure of public funds in the payment of salaries and the operating costs of the city and county jails, and are therefore a 'direct, definite, increasing and on-going tax burden.'

Plaintiffs ask that the court 'grant, alternatively or cumulatively, declaratory, injunctive and mandamus relief'; that the court order defendants and their employees to cease and desist from the practices complained of; that a writ of mandamus be issued requiring defendants to take arrested persons before a magistrate without unreasonable or unnecessary delay; that an order be entered prescribing personal recognizance and bail procedures; and that defendants submit a plan to implement the judgment of the court. Plaintiffs urge that such a plan require that arrested persons be brought before a magistrate within a fixed number of hours unless an application for an extension of time, based upon a showing of good cause, be made to the presiding judge.

The learned trial judge concluded that plaintiffs lacked standing to prosecute the action and granted defendants' motion for a summary judgment of dismissal. We affirm, but do not reach the question of 'standing.' Rather, we base our decision upon the more fundamental reason that the judiciary does not have the power to Directly supervise law enforcement officers.

Concern that law officers do not themselves break the law in attempting to enforce it has long troubled the courts. ¹ Mr. Justice Brandeis articulated the judiciary's concern in his dissent in Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928):

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means--to declare that the government may commit crimes in order to secure the conviction of a private criminal--would bring terrible retribution.

A wholly acceptable and effective way to 'police the police' has not yet been found. Four alternatives to direct court supervision have been tried. They are: (1) the exclusion of evidence; (2) the imposition of criminal penalties against police officers; (3) the bringing of civil damage actions against police officers by the aggrieved parties; and (4) the use of disciplinary sanctions within the police department. Now Chief Justice Warren Burger has proposed an Independent review board to recommend disciplinary action. W. Burger, Who Will Watch the Watchman?, 14 Am.U.L.Rev. 1 (1964).

In each of the first three alternatives, the court functions within its constitutionally authorized arena on a Case-by-case basis. The exclusion of evidence as an antidotal remedy is a case law concept. Similarly, the recovery of damages by civil suit is a common law remedy. By statute, criminal penalties may be imposed against law enforcement officers who ignore constitutionally guaranteed civil rights. ²

The only alternative which has been consistently and universally employed is the exclusion of evidence under the so-called 'suppression doctrine' or 'exclusionary rule.' And critics of this practice have become increasingly vocal.

To challenge, as I do, the oft-repeated claim that suppression of evidence operates as a deterrent on police, is not to attack the doctrine itself, for courts are bound to uphold constitutions and statutes. But society must inquire whether the Suppression Doctrine has in fact accomplished its stated purpose of deterrence and meet the frustrated and plaintive cry that 'There Must be a better way to do it.'

W. Burger, Who Will Watch the Watchman?, 14 Am.U.L.Rev. 1, 10 (1964).

A Blumrosen, Contempt of Court & Unlawful Police Action, 11 Rutgers L.Rev. 526 (1957) points out that none of the four alternatives has been wholly satisfactory and suggests, as plaintiffs assert, that 'contempt of court' penalties might be a more effective device in confinding police officers to legitimate channels of crime detection.

Wigmore, concerned with warrantless search and seizure, and perhaps with tongue in cheek, asserted that:

The natural way to do justice here would be to enforce the healthy principle of the Fourth Amendment Directly, i.e. by sending for the high-handed, over-zealous marshal who had searched without a warrant, imposing a thirty-day imprisonment for his contempt of the Constitution, and then proceeding to affirm the sentence of the convicted criminal.

(Italics ours.) 8 J. Wigmore, Evidence § 2184a, n. 1, at 31 (McNaughton rev. ed. 1961).

Assuming, as plaintiffs allege, that a deliberate 'open charge' detention practice which violates constitutional 'due process' safeguards does exist, we can envisage a court rule, enforceable by the contempt power, which might effectively accomplish the objectives of plaintiffs' prayer. We are satisfied, however, that such a rule must be legislatively enacted, either by statute or by court rule Specifically authorized by statute.

The establishment of three co-equal branches of government--executive, legislative, and judicial--and the allocation of power among them, is the essence of the American system of government. The disbursement of power is designed to prevent the eventual concentration of Despotic power. ³

The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.

The Federalist No. 47, at 324 (J. Cooke ed. 1961) (J. Madison). It is the judiciary's responsibility to...