# Bender v. City of Seattle > Washington Supreme Court · May 26, 1983 · 99 Wash. 2d 582 URL: https://www.frixlaw.com/law-library/cases/9574174 ## Case - **Full name:** Stanley Bender, Respondent, v. the City of Seattle, Petitioner - **Court:** Washington Supreme Court - **Decided:** May 26, 1983 - **Citations:** 99 Wash. 2d 582; 664 P.2d 492; 9 Media L. Rep. (BNA) 2101; 1983 Wash. LEXIS 1559 - **Precedential status:** Published - **Opinion:** Concurring in part by Dimmick - **Judges:** Williams, Dimmick - **Cited by:** 224 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9574174 ## How later opinions describe it (automated extraction) - noting that a private figure defamation plaintiff must establish negligence to recover for defamation in a case involving a nonmedia defendant, citing Restatement (Second) - stating that “absolute privilege is usually confined to cases in which the public service and administration of justice require complete immunity” - explaining that full and fair disclosure made in good faith is a complete defense in a malicious prosecution action - noting that a private figure defamation plaintiff must establish negligence to recover for defamation in a ease involving a nonmedia defendant, citing Restatement (Second) ## Opinion text Dimmick, J. (concurring in part, dissenting in part)— Bender's claims for malicious prosecution and false arrest should never have been decided by the jury. Probable cause for Bender's arrest existed as a matter of law and thus defeated both causes of action. It should be borne in mind that [our] court, in common with most other courts, has frequently said that actions for damages for malicious prosecution are not favored in law,. . . 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 offend against the law shall be promptly punished; that any citizen who has good reason to believe that the law has been violated shall have the right to take proper steps to cause the *603 arrest of the offender; and that in taking such steps the citizen who acts in good faith shall not be subjected to damages merely because the accused is not convicted; yet, withal, that no man shall be charged with a crime, exposed to the danger of a conviction, and subjected to the expense, vexation, and ignominy of a public trial merely for the gratification of another's malice or ill will. Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 496-97 , 125 P.2d 681 (1942). As indicated by the majority, it is well established that the causes of action for malicious prosecution and false arrest require that plaintiff prove want of probable cause and malice. If a full and fair disclosure of all material facts is made to the prosecuting attorney and the prosecutor thereupon causes the arrest of the accused, probable cause is established as a matter of law and operates as a complete defense. Peasley v. Puget Sound Tug & Barge Co., supra; Pace v. Brodie-National, Inc., 60 Wn.2d 654, 374 P.2d 1000 (1962); Robertson v. Bell, 57 Wn.2d 505 , 358 P.2d 149 (1961); Olsen v. Fullner, 29 Wn. App. 676 , 630 P.2d 492 (1981). After examining the entire record, I conclude that this rule of law is clearly applicable in the instant case. Daniel Johnson confessed to the commission of numerous burglaries to Seattle Police Detective Vanderlaan, and supplied information on his sales transactions to the detective. Johnson gave a written statement to Vanderlaan saying he had sold stolen rings to Bender on July 18 and 19, 1975, and had told Bender they were stolen. The police located the rings in Bender's jewelry store in the University District. The store's records indicated that the dates of sales and receipts did not match and the amounts paid appeared to have been changed. The rings were purchased for a fraction of their value — a fact proven by an insurance policy and appraisal report on the stolen jewelry. Johnson told the police that he had sold stolen jewelry to Bender in the past. Johnson took a polygraph test with regard to this information. Bender, upon questioning, was unwilling to identify the *604 initials of the employee on the receipt for the jewelry and did so only during the course of this trial. He provided police with the following statement: On 7-18-75 I was playing golf in Olympia & did not work at my shop on U-Way. My help purchased a diamond wedding set from a Dan Johnson for $125. This was after 5 p.m. so we would have included it on our 7-19 business day. On 7-19-75 . . . Dan Johnson came in to the store on U-Way & I bought a dinner ring (2 lg & 14 small diamonds) for $150 cash. He did not tell me that it was stolen. The above is a true & voluntary statement made without threats, promises, or duress. On the 18th day of July, I was never in the store at all. [/s/ Bender] I would take a polygraph exam regarding the above facts, [/s/ Bender] Vanderlaan presented all this information, including the polygrapher's entire report of the result of Johnson's test, to the prosecutors. In addition, one of the prosecutors recalled discussing with Vanderlaan Johnson's past criminal record and drug problems. The prosecutor, in addition to having the facts supplied by Vanderlaan before him, checked office files which disclosed that stolen property had been discovered in another of Bender's stores in the past. One of Bender's employees had pleaded guilty to possession of the stolen property. Also in the files was evidence that Bender personally had purchased some 27 stolen rings and mountings a few days after the transactions with Johnson. In fact, the senior deputy testified he considered adding an additional count covering those rings. Thus, the prosecuting attorney's office made its finding of probable cause, in part, from its own office information not even known to Vanderlaan. The prosecutor's office filed an information for grand larceny by possession and obtained a superior court warrant for the arrest of Bender. Pursuant to the warrant, the police took plaintiff into custody. This case was dismissed when Johnson refused' to testify. Testimony at the instant trial by three deputy prosecutors involved in the larceny case was that they believed *605 nothing material was withheld from them and they believed, even at the time of this trial, that there was probable cause to arrest and charge Bender. Testimony by Chief Deputy Dave Boerner, called as a witness by Bender and relied upon by the majority, was that he thought there would be probable cause for Bender's arrest even considering the facts later supplied by Bender's attorney, including Bender's explanation that when he wrote "I" in his statement he meant his employees and not himself. The most that can be said for plaintiffs case is that Mr. Boerner appeared to indicate that probable cause was an individual determination and he hypothesized that he himself may not have chosen to charge under the later known facts, some of which only came out in court, as he requires almost a proof-beyond-a-reasonable-doubt standard. Mr. Boerner was not one of the prosecutors who made the original determination to seek a warrant; so, at best, his testimony was speculative. He did not testify that any material evidence was withheld by the police. In spite of the seemingly overwhelming evidence of probable cause, the majority opinion, at page 596, lists three facts which it alleges Officer Vanderlaan did not convey to the prosecutors, and which it believes to be material. The majority first asserts that since Johnson's credibility was important, Vanderlaan should have informed the prosecutor that he had investigated the allegations made by Johnson regarding prior dealings with Bender but found no evidence as to such dealings. While I feel Johnson's credibility was fairly well established by the polygraph, I will discuss the so-called "investigation" of prior dealings engaged in by Vanderlaan. Vanderlaan did not testify that Johnson had told him he had sold property to Bender before and informed Bender that it was stolen. Johnson indicated to Vanderlaan, however, that he knew Bender and had sold him property before. He also indicated that he had sold to many other merchants in the area. Vanderlaan testified he was unable to check on the story of prior sales since Johnson was *606 uncertain of details of where he had stolen property and its description and to whom it had been sold. Vanderlaan merely indicated at trial that he did not have a lineup because Johnson indicated he knew Bender, having dealt with him in the past. Accordingly, the "investigation" which the majority says Vanderlaan kept to himself was nonexistent. Simply stated, his cursory glance at the store's buy book did not disclose Johnson's name prior to the date here in question. Additionally, the filing deputy prosecutor indicated he was not concerned about Johnson's alleged past dealings with Bender. He checked out two office files and thus became concerned with Bender's having purchased rings stolen from a wholesale jeweler within a few days of the Johnson matter, and with another prior matter where one of Bender's employees had been charged with possession of stolen property. A material fact is one which if known by the prosecutor would have changed his conclusion of probable cause. This simply was not the case, and there is no testimony in that regard by any of the deputy prosecuting attorneys who reviewed this file before filing. Second, the majority maintains Vanderlaan failed to provide copies of the documents in support of Bender's compliance with reporting procedures in the purchase of goods from Johnson. Indeed, Blacklow, the deputy prosecutor who filed the case, and Vanderlaan had a conversation about the fact that Bender's report had inconsistent prices (the prices were marked over) and an erroneous date (one transaction was listed, rather than two). That hardly substantiates Bender's propriety of the transaction argument. Finally, the majority makes much of the fact that Van-derlaan did not advise the deputy prosecuting attorney that the disproportionate price paid by Bender compared with the actual value of the rings was not unusual for secondhand jewelry. We can assume deputy prosecuting attorneys who deal with these cases have some sophistication as to the real world. Further, the disproportionality of the price would be only one factor for the jury to consider in the larceny by possession case against Bender. Again, the materi *607 ality of this fact escapes me. The majority, while correctly stating the law that the gist of an action for malicious prosecution rests on malice as well as the lack of probable cause, fails to discuss malice. I conclude that there is simply nothing the majority can refer to in the record to establish that essential element. Malice has been defined as: "To constitute malice there must be malus animus, denoting that the party who instituted the original proceeding was actuated by wrong motives. And it is held that no distinction exists in this respect between an action for instituting a civil suit and an action for instituting a criminal prosecution. The rule is well settled that malice may consist of any personal hatred or ill-will, any improper or sinister purpose, or any reckless disregard of the rights of others, which is inconsistent with good faith or the mere purpose to further the ends of justice." Waring v. Hudspeth, 75 Wash. 534, 538 , 135 P. 222 (1913). The only evidence in the record which the majority may point to hardly rises to the level of malice. Vanderlaan testified that he did not totally believe Bender and did not seriously consider his golfing alibi for July 18, even though Bender had given a statement admitting that he had purchased the stolen goods on July 19. The officer testified: "I simply did not believe Mr. Bender because of the — the fact that he was very nervous and the fact that he also did not give us a total and complete statement right at the first time. In other words, he was very confused as to what had taken place, where he had been; and I just doubted him." This doubt was entirely reasonable because the statement which Bender finally gave the police officer was the third one he had written. He discarded the other two as his account of the events changed. Even so, the officer did attempt to check on Bender's story. He testified: "in the statement Mr. Bender told me that his help had bought the rings on the 18th of July. And I checked with Mr. Bender and asked him who is his help that purchased the rings on the 18th; and Mr. Bender said that he could not remember, *608 he had no idea, he had too many people working in his store to be able to tell me who the people were that bought the rings." Further, there is no duty on the part of a detective to investigate an alibi. Bender never came forward with any substantiation of his alibi during the investigation. The substantiation came during this trial only. In fact, the officer testified that Bender had never informed him about one particular phone call which may have helped to establish the alibi. So long as the prosecutor is aware that an alibi is claimed, as he was here, the police can seek the warrant without investigating and without liability for malicious prosecution. See Christiansen v. Anderson, 179 Wash. 368 , 37 P.2d 889 (1934). I conclude that plaintiff did not prove facts sufficient for a jury determination of lack of probable cause, nor did he produce a scintilla of evidence concerning malice. Thus the majority's result is totally unfathomable in this case. The majority simply does not wish to disturb a jury's determination. Yet that is exactly our function in a case such as this and we have not shirked this responsibility in the past. Christiansen v. Anderson, supra; Pallett v. Thompkins, 10 Wn.2d 697 , 118 P.2d 190 (1941). In Pallett after a jury verdict rendered in favor of the plaintiff, our Supreme Court reversed the action for damages for malicious prosecution, maintaining that when "facts sufficient to establish probable cause are shown and are undisputed, then the court should declare, as a matter of law, that there was probable cause and dismiss the action. Hightower v. Union Savings & Trust Co., 88 Wash. 179 , 152 Pac. 1015 [(1915)]". Pallett, at 700. The majority in its reluctance to disturb a jury verdict on causes of action which should have been decided as matters of law leaves the police officers in a state of confusion as to what this court requires. The majority's obfuscated analysis of purported material facts — as opposed to disputed facts — which the officers failed to disclose can only thwart police officers and prosecutors in fulfilling their duties. The rule established here today appears to allow a lawsuit for false arrest and malicious prosecution any time *609 criminal charges are dismissed. A plaintiff, in order to go to a jury, need only recite at trial a fact — no matter how insignificant in the eyes of the prosecutor — which an officer, with total absence of malice, failed to disclose. If probable cause did not exist as a matter of law in this case, it never will. I therefore dissent. Since the jury verdict was not segregated as to the various claims, I would remand for trial the libel and/or slander action pursuant to the principles of law stated by the majority. Stafford and Dore, JJ., concur with Dimmick, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9574174. Public record. Not legal advice.