Appeal from Superior Court of King County. Docket No: 95-2-04396-8. Date filed: 07/03/96. Judge signing: Hon. James W. Bates Jr.
Authored by Susan R. Agid. Concurring: C. Kenneth Grosse, Ronald E. Cox.
The opinion of the court was delivered by: Agid
AGID, J. -- Richard Secker appeals from the trial court's order granting King County's motion for summary judgment. He contends that the trial court erred by dismissing civil claims arising out of his arrest for violating a temporary restraining order. We hold that the officer had probable cause to arrest him and the trial court properly granted summary judgment and affirm.
Richard and Trina Secker separated in December 1993. After the separation, their relationship continued to be volatile, and they often argued over parenting issues, including supervision of their three children. Richard was concerned that the children were being left alone with Trina's father, who was a convicted sex offender. On February 3, 1994, he sought a temporary restraining order (TRO) granting him custody of the children and limiting Trina's visitation.
On the same day, Trina sought a TRO prohibiting Richard from coming within 500 feet of her home or office. Upon learning of this order, Richard went back to court with an order to vacate Trina's order, which an ex parte commissioner signed. The order stated that it was valid and enforceable when presented to law enforcement officers. Richard got certified copies of that order and filed the original with the clerk's office. Unfortunately, there was no language on its front page directing the clerk's office to enter the order into the law enforcement information system, WACIC, and it was filed away without effect.
On February 7, 1994, Richard went to pick up his children from their baby-sitter, Johna Belvis, who was also Trina's neighbor, as permitted by his first order. When he arrived, Belvis called the police and reported that Richard was violating Trina's TRO. Richard remained in his car, preferring to let his mother speak to Trina and Belvis alone. Several officers, including Officer Klopfenstein, arrived a short time after Belvis's call. Richard gave Klopfenstein a copy of his order vacating Trina's TRO. Because the order was not drafted on the usual domestic violence forms and Klopfenstein did not immediately recognize it as valid, he called the Sheriff's Department Data Unit and the Seattle Police Department's Data Unit to determine whose order was in effect. Both the Sheriff's office and the Seattle Police Department told him that there was no record of the order vacating Trina's TRO and that her order appeared to be valid. Based on this information, he placed Richard under arrest and transported him to jail. He was booked and remained in custody until the next day.
Richard was charged with violating a protection order. The charges were dismissed when the State learned that a commissioner had in fact vacated Trina's order. Richard filed a civil suit against Klopfenstein and King County, as respondeat superior, alleging malicious prosecution, false arrest and imprisonment, conspiracy to wrongfully interfere in a parent-child relationship, violations of his federal due process and equal protection rights, and negligent administration and investigation. The trial court granted King County's motion for summary judgment. It concluded that Klopfenstein had probable cause to arrest Richard because he reasonably believed that Trina's order was valid and that Richard's other claims were not recognized in Washington law.
We review a trial court's order granting summary judgment de novo. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wash. 2d 337, 341, 883 P.2d 1383 (1994). An order granting summary judgment must be affirmed if no material factual issues exist and the moving party was entitled to judgment as a matter of law. Mountain Park, 125 Wash. 2d at 341. All inferences and questions of fact must be considered in the light most favorable to the non-moving party. Mountain Park, 125 Wash. 2d at 341. Factual issues may be resolved on summary judgment if all reasonable persons could only reach one Conclusion based on the record submitted to the court. Dombrosky v. Farmers Ins. Co., 84 Wash. App. 245, 253, 928 P.2d 1127 (1996), review denied, Wash. 2d (1997). Mere possibility or speculation about the facts does not create a material factual issue for trial. Dombrosky, 84 Wash. App. at 253.
Richard first contends that the trial court erred when it found that Klopfenstein had probable cause to arrest him and dismissed his malicious prosecution and false arrest and imprisonment claims. *fn1 In either cause of action, the defendant is entitled to summary judgment if the court can determine, as a matter of law, that the arresting officer had probable cause to arrest. McDaniel v. City of Seattle, 65 Wash. App. 360, 368-69, 828 P.2d 81 (1992), review denied, 120 Wash. 2d 1020, 844 P.2d 1017 (1993). Probable cause exists where the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a person of reasonable caution in a belief that the suspect has committed an offense. Bender v. City of Seattle, 99 Wash. 2d 582, 597, 664 P.2d 492 (1983). The question whether a police officer had probable cause to arrest is generally one of fact. McDaniel, 65 Wash. App. at 368. But when the evidence conclusively establishes that the officer had probable cause to arrest, the court need not submit the issue to a jury and can make a finding as a matter of law. Cf. Daniel v. State, 36 Wash. App. 59, 62, 671 P.2d 802 (1983) ("unless the evidence conclusively and without contradiction establishes" that the arrest was lawful, the issue of probable cause must be submitted to a jury).
Richard argues that because the State later realized that his order vacating the earlier TRO was valid and dismissed the proceedings against him, the trial court erred when it found that Klopfenstein had probable cause. Dismissing an action only prima facie establishes lack of probable cause. Peasley v. Puget Sound Tug & Barge Co., 13 Wash. 2d 485, 498, 125 P.2d 681 (1942). If the defendant can present sufficient evidence that the arresting officer had probable cause, the plaintiff in either a malicious prosecution or false arrest and imprisonment action must affirmatively establish want of probable cause. See Peasley, 13 Wash. 2d at 499.
Although the State did dismiss the charges against Richard, the uncontroverted evidence is sufficient to establish probable cause. Klopfenstein admits that Richard had an order which appeared to vacate Trina's TRO, but that order was drafted by Richard's attorney and was not on the usual domestic violence forms that Klopfenstein recognized. Although Richard's order was valid, the clerk's office never entered it into the computer because nothing on the face of the order indicated that any action was required. Klopfenstein realized that he was not in a position to evaluate the authenticity of Richard's order and called both the Sheriff's office and the Seattle Police Department to determine which order was valid. Both offices told him that Trina's order was still in effect. When a protection order is entered into the law enforcement information system, it gives notice to officers that a protection order exists and is enforceable. RCW 26.50.100(1) (1992). And when such an order is in the information system and the officer has probable cause to believe that the suspect is violating it, that officer is statutorily required to make an arrest if the suspect is aware of the order. RCW 26.50.110(2) (1992). Therefore, because Richard was within 500 feet of Trina's house and her TRO was still on record as valid, Klopfenstein had probable cause to believe that he was violating the TRO.
Richard also contends that the trial court erred when it found that Klopfenstein and King County were immune under RCW 10.99.070 because the officer did not act in good faith.. However, because Klopfenstein had probable cause to arrest Richard, we need not reach the question of immunity. Nor do we need to consider Richard's federal claims because they arise ...