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Jacques v. Sharp

September 9, 1996


Superior Court County: King. Superior Court Cause No: 93-2-24124-1. Date filed in Superior Court: 1-3-95. Superior Court Judge Signing: Laura Inveen.

Written by: Cox, J. Concurred by: Grosse, J., Becker, J.

The opinion of the court was delivered by: Cox

COX, J. -- We must decide whether, as a matter of law, there was probable cause to arrest Robert Jacques for violating a provision of an agreed order for protection that restrains him "from entering the area known as 'Magnolia' in Seattle, Washington." We hold that there was no probable cause to arrest him on this basis and that the trial court did not err in denying the City's motion for summary judgment. Accordingly, we affirm the trial court's denial of the City's motion for summary judgment.

In September 1991, Seattle Police Officer Larry Estep was one of several officers who responded to a call to police by Linda Sharp. Sharp reported that her ex-husband, Jacques, was violating the terms of an order for protection that she had obtained during their marriage dissolution. The November 1986 order, which is renewable annually and to which Jacques agreed, precludes him from entering the Magnolia area in Seattle for a period of 10 years from the order's date of entry. After the dissolution, Sharp continued to live in Magnolia with her new husband and her son. During her telephone call to the police, Sharp also told the dispatcher where in Magnolia she had seen Jacques.

Shortly after the call, Officer Estep contacted Jacques at a mini market in Magnolia. During their ensuing Discussion, Jacques admitted that he knew the original 1986 order for protection restrained him from entering Magnolia for 10 years. He also stated that he had moved back to Magnolia with his new wife and family since the date of the order. Jacques further stated that it was his understanding that the order for protection was no longer in effect. Officer Estep then arrested Jacques for violation of the order for protection. Jacques was imprisoned in the King County Jail for about 19 hours. He was released after posting bail.

Thereafter, Sharp commenced contempt proceedings in King County Superior Court against Jacques for violation of the order for protection. In December 1991, a court commissioner held Jacques in contempt of the order for having moved to Magnolia.

In September 1993, Jacques commenced this action for false arrest, false imprisonment, and malicious prosecution against the City of Seattle, Sharp, and her husband based on the 1991 arrest. He did not name Officer Estep, the arresting officer, as a defendant in the action. Jacques seeks damages against the City, Sharp, and her husband.

In August 1994, Jacques moved for partial summary judgment, claiming that the City was liable for damages because Officer Estep's actions constituted false arrest and false imprisonment as a matter of law. The City also moved for summary judgment, asserting that Officer Estep had probable cause to arrest Jacques and that the City was statutorily immune from all of Jacques' claims. Judge Laura Inveen denied the cross-motions for summary judgment. The City sought discretionary review of the order, but Jacques did not. This court granted discretionary review to the City.

Probable Cause

The City contends that the trial court erred by denying it summary judgment because the police officer had probable cause to arrest Jacques. We disagree.

CR 56(c) directs a court to grant summary judgment to a moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." When we review a summary judgment order, we undertake the same inquiry as the trial court. *fn1 This court considers all facts and reasonable inferences from facts in the light most favorable to the nonmoving party. *fn2 We review questions of law de novo. *fn3

Jacques sued the City for false arrest, false imprisonment, and malicious prosecution. A false arrest occurs when a person with actual or pretended legal authority to arrest unlawfully restrains or imprisons another person. *fn4 But no legal authority is necessary for a restraint to constitute false imprisonment. *fn5 Because the dispute in this discretionary review centers around the legality of Jacques' arrest, we focus our analysis on the arrest. *fn6

Probable cause is a complete defense to an action for false arrest, false imprisonment, or malicious prosecution. *fn7 "Probable cause for a warrantless arrest exists where the facts and circumstances within the arresting officer's knowledge . . . are sufficient to permit a person of reasonable caution to believe that an offense . . . is being committed." *fn8 Not only must the arresting officer have reasonable grounds to believe that the offender is taking the action complained of, but the action itself must be a crime. *fn9 Otherwise, there can be no probable cause to arrest.

In Kilcup, a commissioner of the Port of Seattle arrested Kilcup. It appears he did so because Kilcup had created some kind of disturbance at the insurance counter at the airport. *fn10 Kilcup had been fired as an airport security guard and was in the process of gathering his personal belongings and saying good-bye to his co-workers. Our Supreme Court held that the arrest was unlawful because there was no evidence that Kilcup had committed any offense. *fn11

Here, the parties do not dispute (1) that Jacques was in Magnolia in violation of the order for protection and (2) that Officer Estep arrested him. Moreover, there is no dispute that Sharp commenced contempt proceedings against Jacques for violation of the order, and a court commissioner held Jacques in contempt for that violation in December 1991. The question before us is whether Jacques' violation of the order for protection constituted a crime for which probable cause existed to justify his warrantless arrest.

The public policy of this state on the subject of domestic violence is strongly expressed in several statutes. Chapter 10.99 RCW, which is titled Domestic Violence--Official Response, identifies domestic violence as a serious crime. It assures victims of such violence the maximum protection from abuse that the law and its enforcers can provide. *fn12

Furthermore, RCW 10.31.100(2)(a) directs police officers to make warrantless arrests upon probable cause to believe a person has knowingly violated certain provisions of an order for protection issued under RCW 26.50, the Domestic Violence Prevention Act (DVPA). *fn13 RCW 26.50.110 makes certain violations of an order for protection a misdemeanor. RCW 26.50.110(1) provides:

Whenever an order for protection is granted under this chapter and the respondent or person to be restrained knows of the order, a violation of the restraint provisions or of a provision excluding the person from a residence is a misdemeanor. The police are directed to make warrantless arrests for certain violations of the DVPA. RCW 26.50.110(2) provides:

A peace officer shall arrest without a warrant and take into custody a person whom the peace officer has probable cause to believe has violated an order issued under this chapter that restrains the person or excludes the person ...

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