Turngren v. King County

• Decision Date: 22 August 1985
• Docket Number: No. 51004-1
• Citation: Turngren v. King County, 104 Wn.2d 293, 705 P.2d 258 (Wash. 1985)
• Court: Washington Supreme Court
• 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, Petitioners, v. KING COUNTY, King County Department of Public Safety, City of Redmond, City of Redmond Police Department, Respondents.

Page 293

104 Wn.2d 293

705 P.2d 258

Elmer J. TURNGREN, Marie Elizabeth Turngren, Elmer Keith Turngren, David Kirk Turngren, and Merri Angelie Turngren, by her Guardian ad Litem Elmer J. Turngren, Petitioners, v. KING COUNTY, King County Department of Public Safety, City of Redmond, City of Redmond Police Department, Respondents.

No. 51004-1.

Supreme Court of Washington En Banc.

Aug. 22, 1985.

Timothy K. Ford, Michael Withey, Daniel Hoyt Smith, Seattle, for petitioners.

Norman K. Maleng, King County Pros., Michael C. Duggan, for respondent King Co.

Waitt, Johnson & Martens, Barry Jonson, Seattle, for respondent City of Redmond.

DORE, Justice.

The issue in this case is whether the Court of Appeals properly upheld the trial court's summary dismissal of a civil action which the Turngren family filed against King County, the City of Redmond, and others. We hold that the Turngrens established a prima facie case for malicious prosecution, false arrest and false imprisonment, and libel and slander, but not for violation of federal civil rights. We reverse and remand for trial in accordance with the provisions of this opinion.

FACTS

On May 1, 1979, Elmer and Marie Turngren and their children filed the present action against King County, the King County Department of Public Safety, the City of Redmond, its police department, and 15 John Does alleged to be employees, agents, and officers of the other defendants. The Turngrens' complaint alleges the following: In October 1978, one of the John Does knowingly and falsely told several police officers that he had seen 4 M-16 automatic rifles, 15 hand grenades, and a pipe bomb in the Turngrens' home. Detectives Rutherford and Niehl, knowing the informant's statements to be false, intentionally repeated the informant's allegations in an affidavit of probable cause and thereby obtained a warrant to search the Turngrens' home. On the evening of October 27, 1978, approximately 30 officers, including a SWAT team, sharpshooters, and federal officers, converged on the Turngrens' home to execute the warrant. Some of the officers contacted the Turngrens' neighbors and told them to leave the area because there might be trouble in the neighborhood.

The complaint further alleged that the officers made Mr. and Mrs. Turngren and their 10-year-old daughter Merri come out of the house at about 10:30 p.m. and stand at gunpoint on the front lawn while the house was searched. Finally, the Turngrens alleged that the police information officer issued press releases which described the informant as reliable, that the weapons had been present in the house but had been removed prior to the search, that the police did their homework well, that the informant feared for his life, and the Turngrens' home was in a messy state before the raid. No contraband was found in the search.

Based upon these factual allegations, the Turngrens sought damages for: (1) false arrest and false imprisonment; (2) invasion of privacy, causing severe emotional distress; (3) trespass; (4) defamation; (5) excessive use of force in executing the search warrant; (6) negligence on the part of the officers in performing their duties; (7) negligence on the part of the City and County in failing to provide proper training and in retaining the officers; and (8) violation of 42 U.S.C. § 1983 (1976).

In their answers, the City and County admitted that the John Doe officers were acting under color of state law and in the course and scope of their duties at the relevant times. Both asserted sovereign immunity as an affirmative defense.

All 15 John Does (including the informant) were subsequently dismissed from the action on stipulation of the parties.

During discovery, the Turngrens' attorney learned that the informant's name was Robert Smith. Smith's representations to Redmond Police Detective Niehl and King County Police Detective Rutherford were the sole source for the issuance of the warrant and search of the Turngrens' home. The incident that touched off the search of the Turngrens' home occurred 1 day before the search when a Redmond businessman, Chris Leavitt, brought a .38 pistol into the Redmond Police Department. Leavitt told Detective Niehl that he had purchased the pistol from Robert Smith and he believed it was stolen. Leavitt informed Niehl that Robert Smith was "a downright liar" and couldn't be trusted. (Clerk's Papers, at 1370.)

Detective Niehl knew Robert Smith as an informant for the Redmond Police Department under Niehl's direct supervision and control. Smith had a juvenile record, had escaped from Echo Glen Juvenile Home on a number of occasions, and had a criminal record. Niehl was also aware that Smith had been convicted of an auto theft charge and was then on probation.

Detective Niehl contacted King County Police Detective Rutherford, who ascertained that the pistol had been stolen from a King County residence. Detectives Niehl and Rutherford then contacted Smith and interrogated him about the stolen pistol. It was only then that Smith told the detectives that he knew where other firearms were located in the Juanita-Kirkland area. Smith said he had heard this information secondhand. The detectives instructed Smith to go back and find the location and owner of the firearms. Niehl and Rutherford's plan was to have the informant attempt to obtain another firearm that they could verify had been stolen in order to corroborate Smith's allegations. Niehl and Rutherford then drove Smith to the Juanita area where Smith was dropped off and instructed to make contact when he found out where the firearms were located.

Smith called Niehl back the next day, claiming that he had seen grenades and automatic weapons at a house in the Kirkland-Juanita area. Rutherford was then contacted, picked up Smith, questioned him, and drove him past a residence in Kirkland which he pointed to. Smith stated he'd been in the house, met a biker and he smoked some dope and handled some guns, some of which he felt were automatic weapons. Rutherford then directed Smith to give him a statement in which Smith stated he observed revolvers, M-16 machine guns, boxes of hand grenades, marijuana, psilocybin mushrooms frozen in the freezer, and three Harley-Davidson motorcycles in the front livingroom of the house. Smith said the house was occupied by three young males, and gave a vague description of one of the occupants of the house as a Hell's Angels warlord named "Keith".

Instead of obtaining independent corroboration of Smith's claims, the officers simply obtained repeated descriptions from Smith of what he saw in the house. The minimal investigation conducted revealed facts which contradicted Smith's claims: it was learned that the house and the car outside it were owned by an Elmer Turngren, who was retired, and who lived in the house with his wife, Elizabeth, a former employee of the Kirkland Police Department. Also learned was that the Turngrens had a daughter, Merri Angelie, and two sons, Keith and Kirk.

Rutherford and Niehl prepared an affidavit in support of a search warrant. The affidavit said nothing about what had been learned about the Turngrens. Nor was the informant Smith's prior criminal history or possible interest in cooperating with the police revealed in the affidavit. The informant's reliability was simply represented by a statement that he had given more than ten reports on criminal activity in the Redmond-Bellevue area which were personally verified by Detective Niehl.

In the process of obtaining the search warrant, the informant Smith was made available to District Judge Stokes to whom the warrant application was made, but no additional evidence was recorded to support the issuance of the warrant. On the basis of the affidavit, Judge Stokes signed the warrant.

After the search of the Turngrens' home, Smith left town and went to Louisiana, where he was sentenced to 5 years in prison for burglary. When interviewed informally in prison, Smith stated that he had lied when he told the officers that he had seen weapons in the Turngrens' home. Smith also claimed that he told the officers before the raid that the Turngrens' house was the "wrong one". ¹ Smith said that Detective Niehl told Smith that it was "too late" because Niehl had already "stuck his neck out" by overstating Smith's credibility, both in the affidavit of probable cause and to the magistrate who signed the warrant. Smith also indicated that Niehl constantly held the probation violation over his head if he refused to cooperate, and told him to leave town after the unsuccessful raid on the Turngrens. Clerk's Papers, at 1159, 1170.

When Smith was later deposed, he admitted making the prison statements, but claimed that they were lies. This time, Smith said that he had become angry with Niehl when the Turngrens' attorney showed up at the prison, because Smith believed that Niehl had disclosed his identity. In the deposition, Smith swore that he had never lied to Niehl.

Detective Niehl was deposed at length regarding alleged discrepancies between his description of Smith's reliability in the affidavit of probable cause and Smith's actual "track record" as an informant. In the affidavit, Niehl had stated that he had received "more than 10 reports on criminal activity [from Smith] ... which were personally verified by [Niehl] through regular police channels ..." (Clerk's Papers, at 1721.) At the deposition, however, Niehl was able to remember only five reports, of which one dealt with Smith's own crime and only one other of which was verified. None of this information resulted in criminal convictions. Nonetheless, Niehl testified that he still believed in Smith's veracity.

All of the police officers who were deposed said that, in connection with the Turngren case, they had been executing ordinary police policies rather than making policy decisions themselves.

The trial court granted the City and County defendants' motions for summary...