Turngren v. King County, King County Dept. of Public Safety

• Decision Date: 23 July 1984
• Docket Number: No. 9382-7-I
• Citation: Turngren v. King County, King County Dept. of Public Safety, 686 P.2d 1110, 38 Wn.App. 319 (Wash. App. 1984)
• Parties: Elmer J. TURNGREN, Marie Elizabeth Turngren, Elmer Keith Turngren, David Kirk Turngren, and Merri Angelie Turngren, by her Guardian ad Litem, Elmer J. Turngren, Appellants, v. KING COUNTY, KING COUNTY DEPARTMENT OF PUBLIC SAFETY; City of Redmond, City of Redmond Police Department, Respondents.
• Court: Washington Court of Appeals

Page 319

38 Wn.App. 319

686 P.2d 1110

Elmer J. TURNGREN, Marie Elizabeth Turngren, Elmer Keith Turngren, David Kirk Turngren, and Merri Angelie Turngren, by her Guardian ad Litem Elmer J. Turngren, Appellants, v. KING COUNTY, KING COUNTY DEPARTMENT OF PUBLIC SAFETY; City of Redmond, City of Redmond Police Department, Respondents.

No. 9382-7-I.

Court of Appeals of Washington Division 1.

July 23, 1984.

Review Granted Dec. 7, 1984.

Daniel Hoyt Smith and Michael Withey, Seattle, for appellants.

Norman K. Maleng, King County Pros. Atty., Michael Duggan, Patrick Schneider, Deputy Pros. Attys., Seattle, for King County.

Barry Johnson, Seattle, for Redmond Police Dept.

Katrina Pflaumer, Seattle, amicus curiae for American Civil Liberty Union.

ANDERSEN, Judge.

This is essentially a suit for damages against King County and the City of Redmond brought following a police search of the plaintiffs' house, pursuant to a search warrant, that did not turn up the evidence sought. In Turngren v. King Cy., 33 Wash.App. 78, 649 P.2d 153 (1982) (Turngren I), after setting out the facts in some detail, we affirmed a summary judgment for the defendants granted by the trial court. The plaintiffs then petitioned the State Supreme Court for review.

Two of the cases cited in Turngren I were Clipse v. Gillis, 20 Wash.App. 691, 582 P.2d 555 (1978) and Moloney v. Tribune Pub'g Co., 26 Wash.App. 357, 613 P.2d 1179, review denied, 94 Wash.2d 1014 (1980). Subsequent to our decision in Turngren I, the State Supreme Court decided Bender v. Seattle, 99 Wash.2d 582, 664 P.2d 492 (1983), a tort action brought against the City of Seattle by a person against whom a criminal action had been filed and then dismissed. Bender held, among other things, that "to the extent the Court of Appeals decisions in Clipse and Moloney purport to extend the limited doctrine of discretionary governmental immunity, we now expressly disapprove of those cases." Bender, 99 Wash.2d at 590, 664 P.2d 492.

The State Supreme Court then remanded Turngren I to us for determination in light of Bender. Pursuant to that remand order we granted reconsideration. We have now reconsidered Turngren I in light of Bender and the additional briefs submitted by the parties, and adhere to our affirmance of the summary judgment dismissing the plaintiffs' case. We will again refer to the facts of the case to the extent required in connection with our discussion of the issues herein.

DEFAMATION CAUSE OF ACTION

We turn first to our affirmance of the dismissal of the plaintiffs' defamation claim in Turngren I. Our affirmance of the trial court's dismissal of that claim was based on the immunity rule expressed in Moloney. As to that claim, however, we observe that while Bender holds there is no longer absolute immunity from such claims, a qualified immunity remains. The rule now is as follows:

Although the release of information to the press and public by police officers is a very important function, we are persuaded that such communications do not rise to the level of such compelling public policy as to require an absolute privilege. We believe a qualified privilege will adequately protect police officers in releasing information to the public and press. It is then the plaintiff's burden to establish an abuse of that qualified privilege to recover. Since we view this function as important enough to afford police officers a qualified privilege, the standard of proving abuse of the privilege must necessarily be high.

As we noted in Mark v. Seattle Times, [96 Wn.2d 473] at 492 n. 5, [635 P.2d 1081 (1981) ], proof of an abuse of a qualified privilege must be established by clear and convincing evidence, not simply by a preponderance of the evidence. The Restatement (Second) of Torts § 600, at 288 (1977), discusses abuse of qualified privileges and suggests that knowledge or reckless disregard as to the falsity of a statement is necessary to prove abuse of a qualified privilege. Other courts have adopted this rule that proof of knowledge or reckless disregard as to the falsity of a statement is necessary to establish abuse of a qualified privilege.... We now adopt that standard as our own.

(Citations omitted.) Bender, at 601-02, 664 P.2d 492.

As we previously observed in connection with the plaintiffs' defamation claim, "the record does not raise a reasonable inference of malicious or reckless conduct on the part of the police at any stage of their investigation." Turngren I, 33 Wash.App. at 86, 649 P.2d 153. Applying the qualified privilege test enunciated in Bender to the facts of this case, we again conclude that the plaintiffs did not establish any abuse by the defendants of their privilege. Specifically, the plaintiffs did not make the requisite showing of "knowledge or reckless disregard as to the falsity" of any of the police statements to the press and public. Such statements, therefore, were privileged under the qualified privilege rule and the trial court's dismissal of the plaintiffs' defamation claim was proper.

MALICIOUS PROSECUTION CAUSE OF ACTION

We turn next to our affirmance of the dismissal of the remaining aspects of the plaintiffs' common law tort action in Turngren I. We did not uphold dismissal of those claims on the basis of the doctrine of governmental immunity, but did so because "[o]ur review of the record in this case demonstrates an absence of any issue of material fact in regard to the detectives' allegedly malicious or reckless conduct." (Footnotes omitted.) Turngren I, at 83-84, 649 P.2d 153. Although we adhere to that decision, further elucidation of this issue is required by the State Supreme Court's remand of this case for determination in the light of Bender, since Bender also dealt with malicious prosecution issues.

Cases such as this one, where wrongful issuance of a search warrant is alleged, are malicious prosecution actions. As the Supreme Court of Oregon observed, "[i]t is well supported by authority that to cause a search warrant to be issued maliciously and without proper cause is malicious prosecution for which an action will lie." Nally v. Richmond, 105 Or. 462, 209 P. 871, 872-73 (1922). Although the Supreme Court of this State has not expressly defined a tort action based on the alleged wrongful issuance of a search warrant as a "malicious prosecution" action, that is the effect of its holdings in such cases. See, Ton v. Stetson, 43 Wash. 471, 474, 86 P. 668 (1906); Ladd v. Miles, 171 Wash. 44, 45, 17 P.2d 875 (1932).

In order to add clarity to our analysis of this issue, and to our reconsideration in light of Bender, it will be helpful at the outset to first review the elements of a malicious prosecution cause of action as set forth in the leading case of Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485 497, 125 P.2d 681 (1942), and as recently reaffirmed by Bender, 99 Wash.2d at 593, 664 P.2d 492--but to restate those elements in the context of search warrant procedures as distinguished from the criminal prosecutions, which were involved in Peasley and Bender.

In order to maintain a malicious prosecution action based on the alleged wrongful issuance of a search warrant, a plaintiff must allege and prove the following five elements:

1. The search warrant claimed to have been wrongfully issued was obtained by the defendant;

2. There was want of probable cause for the issuance of the search warrant;

3. The search warrant was obtained through malice;

4. The search of the plaintiff's person, premises or property conducted pursuant to the search warrant was unsuccessful; and

5. The plaintiff suffered injury or damage as a result of the search.

Of the foregoing five elements, want of probable cause and malice constitute the gist of the action. Peasley, 13 Wash.2d at 497, 125 P.2d 681; Bender, 99 Wash.2d at 593, 664 P.2d 492.

As held in Peasley, the following rules apply to malicious prosecution actions. As with the above five elements of the cause of action, we have restated the rules declared in Peasley to the extent required to conform them to search warrant practice.

Rule A. Actions for damages for malicious prosecution based on the alleged wrongful issuance of a search warrant are not favored in law, although they will be readily upheld when the proper elements have been presented. 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 possess contraband, stolen property, instrumentalities used in the commission of a crime, or other proper subjects of a search warrant, should be required to relinquish same to the appropriate law enforcement personnel, and that any citizen who has good reason to believe that some person has such property should have the right to take proper steps to cause such property to be turned over to law enforcement personnel; and that in taking such steps the citizen who acts in good faith shall not be subjected to damages merely because the property sought by the search warrant was not found; yet, withal, that no person shall be accused of possessing contraband, stolen property, instrumentalities used in the commission of a crime or other proper subjects of a search warrant, and subjected to the expense, vexation, and ignominy of a search merely for the gratification of another's malice or ill will. Peasley, 13 Wash.2d at 496-97, 125 P.2d 681.

Rule B. The burden of proof on the five elements rests upon the plaintiff. Moreover, the burden of proving want of probable cause never shifts to the defendant, but remains upon the plaintiff throughout the trial in the suit for malicious prosecution. Likewise, the burden of proof on the question of malice is not shifted to the defendant by proof of want of probable cause. Peasley, at 498, 125 P.2d 681.

Rule C. In some cases, however, where the evidence is sufficient to establish want of probable cause, malice may be inferred from that fact when proven; but this is not a...