Opinion
CHRISTIAN, J. James Edward Johnson (hereinafter “plaintiff”) brought this action against the City of Pacifica, two of its police officers and others. The action seeks recovery of damages incurred when, as a result of the allegedly negligent conduct of the officers, plaintiff was arrested and temporarily incarcerated on forgery charges of which he was innocent. The city’s general demurrer to his second amended complaint was sustained without leave to amend. Plaintiff appeals from the subsequent judgment of dismissal as to the city. The question presented is whether the complaint states a cause of action against it or whether, upon the facts pleaded, the city is immune from liability under provisions of the California Tort Claims Act of 1963. (Stats. 1963, ch. 1681, p. 3267; Gov. Code, § 810 et seq.)
Concerning the conduct of the police officers and the consequences thereof, the complaint alleges as follows: Employed by the city as “policemen” and acting “within the scope of their employment,” the officers received complaints from Pacifica merchants that two forged checks had been passed. After conducting an investigation, the officers reported to the San Mateo County district attorney that plaintiff had been positively identified as the person who had passed the checks. The district attorney there[84]upon caused a criminal complaint to be filed charging plaintiff with a violation of Penal Code section 470 in connection with each of the checks.
A warrant for plaintiff’s arrest was issued and teletyped to Daly City, where he lived. He was arrested, pursuant to the warrant, by the Daly City police. He necessarily incurred expenses (pleaded as items of special damage) in posting a bail bond to secure his release, and in employing an attorney to defend him. After further investigation and an extensive showing of various facts by plaintiff (including an alibi), the district attorney dismissed the criminal proceedings.
The officers’ investigation of the check offenses was “negligently” conducted in that they failed to follow “established police practices” (or “established police procedures”) which control such matters. The complaint alleges the existence of such “established police practices,” describes them, and sets forth in detail the respects in which the officers are claimed to have been negligent in violating them.1 It further alleges that the district attorney caused the criminal complaint against plaintiff to be filed “as a direct and proximate” result of the “negligent acts” of the officers, and “acting upon [their] false and negligent representations of a positive identification of the plaintiff,...”
The complaint alleges that the officers had the “ministerial” duty of fully investigating the suspected offenses “in accordance with said established police procedures” and then of reporting the results “fully, fairly and completely” to the district attorney. It is alleged that only the district attorney had discretionary functions in the later handling of any prosecution and that neither of the officers “had any discretion” in relation to the events alleged.
The trial court concluded that the complaint failed to state a cause of action because, upon the facts pleaded, the officers were immune from liability under Government Code section 821.6 2 and the city was in [85]consequence immune under subdivision (b) of section 815.2.3 We uphold the trial court’s determination and affirm the judgment of dismissal.
Analysis of the city’s claim of immunity must start with the premise that the Tort Claims Act leaves in effect the doctrine of Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 219 [11 Cal.Rptr. 89, 359 P.2d 457], modified 57 Cal.2d 488 [20 Cal.Rptr. 621, 370 P.2d 325], that “when there is negligence, the rule is liability, immunity is the exception.” (Johnson v. State of California (1968) 69 Cal.2d 782, 798 [73 Cal.Rptr. 240, 447 P.2d 352]; Gov. Code, § 820, subd. (a).) A possible basis of immunity would be a determination that the damages suffered by plaintiff were caused by the officers’ “act or omission [which] was the result of the exercise of the discretion vested in [them].” (Gov. Code, § 820.2; see McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 260 [74 Cal.Rptr. 389, 449 P.2d 453].) But the complaint went to extraordinary lengths to allege that the officers were acting under controls which eliminated any exercise of discretion in the performance of their duties. We will therefore assume, as the court below apparently did in ruling on the demurrer, the factual validity of plaintiff’s surprising claim that a police officer can be acting in a nondiscretionary capacity when he investigates a suspected crime and determines whether to go to the district attorney with the information he has collected.
The prosecutor’s immunity established by Government Code section 821.6 (see fn. 2, above) deals more specifically with the situation alleged by plaintiff. Plaintiff contends that this immunity is enjoyed only by district attorneys and other “legally trained personnel.” But a literal application of the language of the enactment establishes immunity on the part of these officers. They are “employees of a public entity” and hence are, by definition (§ 811.4), public employees within the meaning of section 821.6. Plaintiff points out that Government Code section 26501 makes it the duty of the district attorney to “institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses ...” and argues that police officers therefore cannot come within the immunity created by section 821.6. But section 26501 contains no suggestion that its use of the word, “institute,” represents any exclusive intent. A dictionary definition of the word (Webster’s New Internat. Dict. (3d ed. 1966)) is “to originate and get established [or] cause to come into existence.” This complaint alleges that plaintiff suffered damages when the officers’ negligent investigation caused the district attorney to launch a prosecution which proved to be unfounded. That is, that they caused the unfounded prosecution “to come into existence.” If the legislation had [86]been intended to protect only the district attorney, it would have been easy for the draftsman to find an expression more restrictive than “public employee.” The use of the broader term implies an intention to extend immunity to functions in addition to those which may be performed only by district attorneys. (Cf., Stearns v. County of Los Angeles (1969) 275 Cal.App.2d 134 [79 Cal.Rptr. 757]; Watson v. County of Los Angeles (1967) 254 Cal.App.2d 361 [62 Cal.Rptr. 191].) Moreover, it is not unlawful (even though it is generally inadvisable) for a peace officer to bypass the district attorney and institute a prosecution by going before a magistrate and “subscribing” a complaint. (Pen. Code, § 806.) It would be anomalous to hold that an officer who so proceeds is immune while one who gges to the district attorney is liable.
The legislative history of section 821.6 also points away from the construction suggested by plaintiff. The Senate Committee comments to section 821.6, reprinted in Van Alstyne, California Government Tort Liability (Cont.Ed.Bar 1964), page 531, declare that the section “continues the existing immunity of public employees.” The comment cites four cases (Hardy v. Vial (1957) 48 Cal.2d 577 [311 P.2d 494]; Coverstone v. Davies (1952) 38 Cal.2d 315 [239 P.2d 876]; White v. Towers (1951) 37 Cal.2d 727 [235 P.2d 209, 28 A.L.R.2d 636]; Dawson v. Martin (1957) 150 Cal.App.2d 379 [309 P.2d 915]), not one of which involved a district attorney; all four broadly indicate that investigative officers enjoy immunity from tort liability for malicious prosecution.
Plaintiff points to Restatement of Torts, section 656, comment d, as indicating that the immunity does not extend to police officers. But the editors of the California annotations (1957) acknowledge that in this state, “[t]he immunity is considerably broader than that set forth by the Restatement.” Also see Prosser, Torts (3d ed.) section 113, page 856, indicating that the prosecutor’s immunity “is, in general, extended to the police and other law enforcement officers acting within the scope of their duties.” (Cf., Bromund v. Holt (1964) 24 Wis.2d 336 [129 N.W.2d 149].)
Conceding that the complaint made no attempt to plead a cause of action for malicious prosecution against the officers (the requisite element that the officers acted maliciously is absent), plaintiff contends that section 821.6 has no application because his claim is based instead on a theory of negligence. This argument overlooks the closing clause of the section, which grants immunity “even if he acts maliciously and without probable cause.” (Italics added.) If the Legislature had inexplicably intended to [87]deny immunity to an officer who merely acts negligently while protecting one who, more culpably, is guilty of malicious prosecution, it would have been superfluous to use the word “even.” (See Singleton v. Perry (1955) 45 Cal.2d 489, 494 [289 P.2d 794]; 2 Witkin, Summary of Cal. Law (7th ed. 1960) Torts, § 90, p. 1261, for a definition of malicious prosecution.) Even before the enactment of section 821.4, it was not the rule that an officer must be guilty of malice in order to be immune but that he has “absolute immunity, notwithstanding malice or other sinister motive [when he institutes or takes part in criminal actions].” (Hardy v. Vial, supra, 48 Cal. 2d 577, 582, italics added.)
In another of the decisions from which, according to the legislative history, section 821.6 was derived (White v. Towers, supra, 37 Cal.2d 727) the Supreme Court upheld a determination, on demurrer, that an investigator of the Fish and Game Commission was immune from civil liability for malicious prosecution of criminal proceedings in the course of his employment. The policy underlying the immunity was stated by the Supreme Court as follows: “When the duty to investigate crime and to institute criminal proceedings is lodged with any public officer, it is for the best interests of the community as a whole that he be protected from harassment in the performance of that duty. The efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders by properly trained officers.' A breakdown of this system at the investigative or accusatory level would wreak untold harm. ‘Criminal law does not enforce itself. It demands the assistance of valid evidence and fearless officials to put it in execution. Because of their tendency to obstruct the administration of justice, it is the policy of the law to discourage actions for malicious prosecution.’ [Citation.] It is patent that defendant Towers is a law enforcement officer, charged with the duty of enforcing laws for the protection of fish and game. As such officer he is entitled to the immunity from civil liability with which the law surrounds officials directly connected with the judicial processes. To rule otherwise would place every honest law enforcement officer under an unbearable handicap and would redound to the detriment of the body politic. ‘The public welfare requires that this choice (whether or not to institute proceedings) shall be free of all fear of personal liability. To assure this freedom of action it is deemed best to make the assurance positive and definite by securing him against even actions based upon a malicious abuse of his official power.’ [Citation.]” (White v. Towers, supra, 37 Cal.2d at pp. 729-730.) These observations apply with greater force to the present plaintiff’s attempt to recover for the officers’ mere negligence in their participation in the prosecution. Negligence is far easier to prove than malice, [88]and the harassment of law enforcement officers which would result from an extention of liability would, in the same proportion, be greater.
The judgment is affirmed.
These allegations are too lengthy to permit a full summary here. Generally, they charge that the officers procured a false identification of plaintiff as the check passer because they omitted to make inquiries of the purported maker of the checks, of the drawee bank, or of other law enforcement agencies (which inquiries, if pursued, would have disclosed that someone other than plaintiff had been passing similar checks with a similar modus operandi and had probably passed the Pacifica checks), failed to compare the check endorsements with plaintiff’s wholly dissimilar handwriting, and had the cashing merchants’ employees identify him from an obscure copy of a photograph rather than having them view him in person. Each of the acts and omissions alleged is fairly stated to have been in violation of an “established police practice" which, as described in the complaint, required contrary action by the officers in their investigation of the checks.
Section 821.6. “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”
Section 815.2. “(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”