Opinion
No. ED 84450
May 24, 2005
Appeal from the Circuit Court of Osage County, Honorable Jeffrey W. Schaeperkoetter.
David G. Bandre, Jefferson City, Missouri, for respondent.
Raymond P. Bozarth, Jefferson City, Missouri, for appellant.
Before Glenn A. Norton, P.J., William H. Crandall, Jr., S.J.
OPINION
James Highfill and Dan Highfill sued Mary Hale for false imprisonment, alleging that she instigated their false arrest. The trial court granted Hale's motion for summary judgment, and the Highfills appeal. We reverse and remand.
I. BACKGROUND
Hale and the Highfills are neighbors who live in a rural area near the border of Osage County and Gasconade County and have a history of disputes, complaints and litigation. In the seven months prior to the arrest at issue in this case, Hale called 911 or the Gasconade County Sheriff's Department over 25 times to complain about the Highfills' conduct. Her complaints included allegations that the Highfills had been shooting near her property, as well as stalking and harassing her. In response to these calls, several Gasconade County deputies visited the Highfills' property and observed the metal fence that the Highfills had erected between their adjoining properties a number of months prior to the arrest. The fence, which did not span the length of their property line and instead only ran directly across from Hale's residence, was covered in spray-painted symbols and drawings. Within the fence was a one-way glass window that allowed the Highfills to see Hale's residence. On top of the fence, the Highfills mounted what appeared to be surveillance cameras pointed toward Hale's home. Although none of the deputies told the Highfills that the fence was unlawful or directed them to remove it, the Highfills claim that at some point the sheriff told them "if the calls don't stop, someone's gonna get arrested."
Hale filed four adult abuse petitions against the Highfills for harassing and stalking her during the first few months of 2001. After a full evidentiary hearing regarding these allegations before Judge Schaeperkoetter on May 30, 2001, the trial court denied relief, finding that stalking had not been proven. Hale was also convicted of making a false report, a class B misdemeanor under section 575.080, for giving a law enforcement officer false information in October of 2002 in connection with her accusation that Daniel Highfill had assaulted her on a date subsequent to the arrest at issue in this case.
On September 21, 2001, Hale made several calls to a non-emergency phone number maintained by staff of the Gasconade County Sheriff's Department. According to the county's communication logs, she initially inquired about a previously-reported incident regarding some nails that she believed the Highfills had placed in her driveway. In a later call, she complained that "someone just shot very close to her fence," that she had been deafened in her left ear, that she had a "red, welp-like bump on her arm" and that she needed an ambulance. Deputies Oller and Hatton responded to investigate. They learned that Hale had been mowing her yard when she felt pain in her arm after hearing a loud noise that she believed to be a gunshot, which caused her to believe that she had been shot. Although Hale did not expressly tell the deputies that it was the Highfills who shot her, it was clear to Deputy Oller that Hale was implying that the Highfills did the shooting. The ambulance attendants and the deputies found that Hale's left elbow exhibited some redness and swelling, but in his report Deputy Hatton concluded that "the shooting incident cannot be substantiated."
That same day, after observing the fence and seeing one of the Highfills look through the one-way glass, the deputies arrested both of the Highfills for stalking and took them to jail. Although the deputies did not obtain an arrest warrant, they had contacted the prosecuting attorney before the arrest, and she confirmed that she would consider pressing charges for stalking if they arrested the Highfills. No such charges were ever filed. Deputy Oller claimed that the arrest for stalking was based on the deputies' observations about the fence, would not have been made without the prosecutor's instruction and had absolutely nothing to do with the neighbors' previous interactions and complaints. But he also admitted that part of his reason for contacting the prosecuting attorney prior to the arrest was that "this was quite a storied incident, that everything had been ongoing for quite a while." Further, Deputy Hatton's police report and his probable cause statement indicated that his knowledge of Hale's prior complaints was part of the reason that the Highfills were arrested.
The Highfills sued Hale for false imprisonment, alleging that she instigated their false arrest. Hale moved for summary judgment, arguing that the undisputed facts (1) negated that she had instigated the arrest and (2) supported her affirmative defense that the arrest was made on probable cause. The trial court granted her motion, finding that the deputies' observations on the day of the arrest were so unrelated to Hale's report about being shot that this disconnect precluded her liability for false imprisonment as a matter of law.
II. DISCUSSION
The propriety of summary judgment is a question of law, and therefore our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for testing the propriety of summary judgment on appeal are the same as those employed by the trial court. Id. We review the record in a light most favorable to the Highfills, against whom judgment was entered. See id. The facts set forth in support of Hale's motion for summary judgment are taken as true unless contradicted by the Highfills' response. See id.
The party seeking summary judgment must establish an undisputed right to judgment as a matter of law. Id. at 380. Incidental to this requirement is the notion that, "[i]nsofar as the movant's right to judgment as a matter of law depends upon the presence or absence of certain facts, the movant must also establish . . . that there is no genuine dispute about those material facts." Id. at 380. A "defending party," like Hale, may establish a right to judgment as a matter of law by showing (1) facts that negate one of the elements of the Highfills' claims, (2) that the Highfills cannot and will not be able to produce sufficient evidence of one of the elements, or (3) that there is no genuine dispute about each of the facts necessary to support a properly-pled affirmative defense. See id. at 381. If Hale made this prima facie showing under Rule 74.04(c), then the Highfills bore the burden of responding with specific facts showing the existence of a genuine issue for trial. See id. A genuine issue exists if there is competent evidence in the record of "two plausible, but contradictory, accounts of the essential facts." Id.
In general, false imprisonment, which is sometimes referred to as false arrest, occurs where one person causes the confinement of another without legal justification. Rustici v. Weidemeyer, 673 S.W.2d 762, 767 (Mo. banc 1984). One method of proving this intentional tort is to show that the defendant instigated the false imprisonment of the plaintiffs. Vaughn v. Sears Roebuck Co., 643 S.W.2d 30, 33-34 (Mo.App.E.D. 1982). Thus, liability for false imprisonment depends on whether the defendant intentionally caused the plaintiffs to be restrained against their will and whether such restraint was unlawful. See, e.g., id. at 33-34; Jacobs v. Bonser, 46 S.W.3d 41, 48 (Mo.App. E.D. 2001).
It is the plaintiffs' burden to prove that the defendant caused, or instigated, their arrest. Day v. Wells Fargo Guard Service Co., 711 S.W.2d 503, 505 (Mo. banc 1986); see also Missouri Approved Instruction — Civil 6th 23.04 (1983 Revision). Although there is no fixed test for what constitutes instigation and each case must be decided on its own set of facts, something more than merely providing information to law enforcement officials and leaving it up to them to act as they see fit is required. See Smith v. Allied Supermarkets, Inc., 524 S.W.2d 848, 852 (Mo. banc 1975); Rustici, 673 S.W.2d at 767. While the plaintiffs need not prove that the defendant explicitly "ordered or directed" the arrest, the defendant's conduct must rise to the level of countenancing, advising, encouraging, approving, or instigating the arrest. Day, 711 S.W.2d at 505; Wehrman v. Liberty Petroleum Co., 382 S.W.2d 56, 60-61 (Mo.App. 1964). Instigation can be shown by direct or circumstantial evidence. Day, 711 S.W.2d at 505. Further, the instigation can take place over an extended period of time. See id. at 505-506 (accusations occurring over a period of six weeks constituted sufficient evidence of instigation); Smith, 542 S.W.2d at 850-54 (defendant's course of conduct over a period of several months was sufficient evidence of instigation).
Justification is a complete defense to an action for false imprisonment. Rustici, 673 S.W.2d at 767. Where, as here, the arrest is made without a warrant, "the arrest of an innocent person may be justified by the officer's reasonable belief that the person is guilty of the offense for which he was arrested." Id. at 769.
A. Instigation of the Arrest
Hale argues that she has established, as a matter of law, that she did not instigate the Highfills' arrest because the undisputed facts negate this element of the Highfills' claim. Specifically, Hale contends that the arrest had nothing to do with her prior complaints and was instead based on the deputies' observations and actions on that day. Hale points out that she did not ask anyone to arrest the Highfills and that her complaint on the day of the arrest was about having been shot while the basis for the arrest was stalking. We find that she has failed to show facts negating the element of instigation.
The conduct relevant to the issue of instigation is not limited to Hale's actions on the day of the arrest. See Day, 711 S.W.2d at 505-506; Smith, 542 S.W.2d at 850-54. Instead, Hale's complaints preceding the arrest, which the Highfills point out were numerous, are also relevant. In the seven months prior to the arrest, Hale had complained to the authorities about the Highfills' conduct more than 25 times. Those complaints included allegations of harassment and stalking, which was the purported reason for the Highfills' arrest, as well as allegations similar to her complaint about being shot at on the day of the arrest. Additionally, the Highfills assert that the sheriff warned them that "if the calls don't stop, someone's gonna get arrested." Hale now contends that the evidence, even when construed favorably to the Highfills, shows there was absolutely no connection between the parties' prior complaints or disputes and the Highfills' arrest for stalking because the arrest was solely "based upon the fence with its accoutrements" and the Highfills' actions on the day of their arrest. The record, however, belies this argument. Although it is undisputed that the deputies viewed the Highfills' fence on the day of the arrest, made their own observations while investigating Hale's complaint and checked with the prosecutor about arresting the Highfills for stalking (and not for shooting), the deputies' statements and reports indicate that they had at least some knowledge about the prior complaints. Moreover, the crime of stalking involves conduct that amounts to purposeful and repeated harassment, which would require the deputies to consider the prior conduct of the parties when making their probable cause determination. See section 565.225.2 RSMo 2000.
All statutory references are to RSMo 2000.
In emphasizing the discrepancy between Hale's complaint on the day of the arrest and the purported basis for the arrest, Hale cites a recent case in which this Court rejected the claim that a store owner had instigated an unlawful arrest. See Rankin v. Venator Group Retail, Inc., 93 S.W.3d 814, 819-20 (Mo.App.E.D. 2002). In Rankin, a store manager called the police to report a possible theft. Id. at 819. Once the officers had investigated the plaintiff, searched her vehicle and concluded that she had not stolen the item in question, they advised her not to return to the store. Id. at 819. But the plaintiff returned to the store anyway and confronted the store manager, resulting in some degree of yelling and screaming. Id. at 818-20. It was only then that the officers went to the store (without being summoned by the store manager) and arrested her for disturbing the peace. Id. at 819-20.
This Court found no substantial evidence to support the plaintiff's claim that the store manager instigated her false arrest for disturbing the peace and held that the trial court did not abuse its discretion in refusing to instruct the jury accordingly. Id. at 820. There, as here, the basis for the initial complaint differed from the basis for the subsequent arrest. But Rankin is distinguishable from this case because there was no history of prior complaints, disputes, or allegations between the parties in that case, nor was there evidence that the store owner had ever complained about a peace disturbance, which formed the basis for the plaintiff's arrest. Hale, on the other hand, had complained to the authorities about the Highfills many times, alleging stalking as well as having shots fired in her direction. Further, disturbing the peace does not necessarily involve repeated conduct, while stalking does. See section 565.225.2.
Viewing the record in a light most favorable to the Highfills, one could reasonably infer that Hale's numerous and continuing complaints, which included allegations of stalking and harassment, amounted to an intentional instigation of the Highfills' arrest for stalking. The discrepancy between Hale's complaint about being shot on the day of the arrest and the Highfills' arrest for stalking does not preclude her liability for false imprisonment as matter of law. Hale has failed to negate the element of instigation. See ITT, 854 S.W.2d at 381.
B. Justification for the Arrest
Even if Hale instigated the arrest, she cannot be held liable for false imprisonment if the arrest was justified. See Rustici, 673 S.W.2d at 767; Routh v. Burlington Northern R. Co., 708 S.W.2d 211, 216 (Mo.App.W.D. 1986). Hale did not move for summary judgment on the basis that the arrest was justified because she simply reported the truth in her complaints. See Rustici, 673 S.W.2d at 767 ("There can be no better, nor more complete justification for someone alleged to be the instigator of an arrest than that he simply told the truth."). She does, however, argue that the arrest was justified because the deputies had probable cause to believe that the Highfills were guilty of stalking. Since the arrest in this case was made without a warrant, Hale bears the burden of pleading and proving, as an affirmative defense, that the arrest was lawful. See Wehrman, 382 S.W.2d at 63; Parrott v. Reis, 441 S.W.2d 390, 392 (Mo.App. 1969). Since Hale has not demonstrated the facts necessary to support this affirmative defense, summary judgment is not appropriate. See ITT, 854 S.W.2d at 381.
Where "an officer is empowered to make an arrest without a warrant, the arrest of an innocent person may be justified by the officer's reasonable belief that the person is guilty of the offense for which he was arrested." Rustici, 673 S.W.2d at 769; see also section 544.216 ("Any . . . deputy sheriff . . . may arrest on view, and without a warrant, any person . . . who he has reasonable grounds to believe has violated any law of this state . . ."); section 565.225.6 ("Any law enforcement officer may arrest, without a warrant, any person he or she has probable cause to believe has violated the provisions of this section [relating to stalking]."). In general, "the defense of probable cause is a question of fact for the jury." Signorino v. National Super Markets, Inc., 782 S.W.2d 100, 103 (Mo.App.E.D. 1989).
Hale argues that the arrest was justified based solely on the deputies' observations on the day of the arrest. But the stalking statute only criminalizes conduct that amounts to purposeful and repeated harassment. Section 565.225.2. Under its statutory definition, harassment means "engag[ing] in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress, and that actually causes substantial emotional distress to that person." Section 565.225.1(3). When viewed favorably to the Highfills, the evidence shows that on the day of the arrest the deputies observed the fence and what appeared to be surveillance cameras and saw one of the Highfills look through the one-way glass window, but performed no other investigation as to the purpose of the structures or as to any specific prior incidents between the parties. Without more, these observations would not lead a reasonable person to conclude that the Highfills were purposefully engaged in a repeated course of conduct that was directed at Hale and served no legitimate purpose. Rather, it seems that unless the deputies inquired about the purpose of the structures or knew about specific prior incidents of harassment by the Highfills against Hale, they cannot have formed a reasonable belief that the Highfills were guilty of stalking.
As mentioned above, the record indicates that the deputies had at least some knowledge about Hale's prior complaints against the Highfills, and it appears that Deputy Oller had investigated some of those complaints — although his statements conflict with regard to the relationship between the arrest and his knowledge about the complaints. Nevertheless, Hale fails to set forth any facts to establish that the deputies knew about specific prior conduct by the Highfills that rose to the level of harassment. See Rule 74.04(c)(1) (the "statement of uncontroverted material facts . . . shall state with particularity . . . each material fact as to which movant claims there is no genuine issue"). Therefore, Hale has failed to establish facts showing that the deputies had reasonable grounds or probable cause to arrest the Highfills for stalking.
In sum, it is undisputed that the Highfills were restrained against their will when they were arrested, without a warrant, for stalking. The record reveals that there is sufficient evidence from which a jury could determine that Hale instigated that arrest. In her motion for summary judgment, Hale has not met the burden of demonstrating facts negating the element of instigation. See ITT, 854 S.W.2d at 381. She has similarly failed to demonstrate the facts necessary to support the affirmative defense of probable cause. See id. Therefore, summary judgment was inappropriate.
Contrary to the dissent's suggestion, the prosecutor's statement that she would consider pressing charges if the deputies arrested the Highfills for stalking does not help establish that the deputies had probable cause to believe that the Highfills were guilty of stalking. Further, any suggestion that prosecutors can give law enforcement officers "permission" to make arrests is also incorrect.
III. CONCLUSION
The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
William H. Crandall, Jr., Senior Judge, concurring Mary K. Hoff, Judge, dissenting.
DISSENT
I respectfully disagree with the analysis of the majority and therefore dissent. I will not repeat the facts that are already recited in the majority opinion. I find that Mary Hale (Hale) demonstrated facts necessary to support her affirmative defense asserting the arrests of James Highfill and Dan Highfill (Highfills) were made on probable cause and that the trial court's grant of summary judgment was appropriate.
I find that the facts support a finding that Deputies Oller and Hatton (deputies) made an independent decision to arrest the Highfills for stalking on the day in question. Not only did the deputies observe what appeared to be surveillance cameras directed at the Hale residence, they also saw one of the Highfills look through the one-way glass on the fence. Most importantly, the deputies testified that the Highfills' arrests were made after contacting the prosecuting attorney to confirm she would consider pressing charges for stalking if the Highfills were arrested. In effect, the prosecutor gave the deputies permission to arrest the Highfills for stalking without an arrest warrant. The prosecutor's instruction was critical to the deputies' determination to make the arrests and lends credence to Hale's claim that the arrests were made because the prosecuting attorney, charged with enforcing the law, implied there was a legal basis for the arrests by giving her approval. I also agree with the trial court's findings, made after a full evidentiary hearing, that the deputies' observations on the day of the stalking arrests were so unrelated to Hale's report about being shot that this precluded Hale's liability for false imprisonment as a matter of law. The deputies independently decided on the stalking offenses and arrested the Highfills after referring to their own copy of statutes, conferring with the prosecutor, and after Hale had left the scene with the paramedics.
The recent case of Rankin v. Venator Group Retail, Inc., 93 S.W.3d 814 (Mo.App.E.D. 2002), is similar in nature to this case and instructive in its analysis. In Rankin, this Court found there was not substantial evidence of instigation by the shop owner where the basis for the initial complaint differed from the charge for the subsequent arrest. Id. at 819. The store manager called the police regarding an alleged shoplifting, but the police later arrested the plaintiff for disturbing the peace because they heard the plaintiff yelling and screaming when she returned to the store. Id. at 819. Similarly, in this case, Hale called the deputies regarding an alleged shooting, but deputies arrested the Highfills based on their own observations of what they concluded was stalking. Here, Hale did not claim the Highfills shot at her nor did she instigate the arrests for stalking.
Liability for false imprisonment depends on whether the defendant intentionally caused the plaintiffs to be restrained against their will and whether such restraint was unlawful.Vaughn v. Sears Roebuck Co., 643 S.W.2d 30, 33-34 (Mo.App. E.D. 1982).
In this instance, Hale did not cause the restraint of the Highfills. The deputies caused the arrests after observing the Highfills commit an alleged misdemeanor in their presence and after obtaining approval of the prosecutor. As noted by the majority, justification is a complete defense to false imprisonment, and an arrest may be justified by an officer's reasonable belief that the person is guilty of the offense for which he was arrested. Rustici v. Weidemeyer, 673 S.W.2d 762, 767, 769 (Mo. banc 1984). In this case, the deputies' justification provided the probable cause for the arrests. The rule is clear that "no action for false imprisonment may be maintained for an arrest which is lawful, no matter at whose instigation nor for what motive the arrest was made." Routh v. Burlington Northern R.R. Co., 708 S.W.2d 211, 215 (Mo.App.W.D. 1986) quoting Wehmeyer v. Mulvihill, 150 Mo. App. 197, 130 S.W. 681, 684 (1910).
In conclusion, I find Hale has met her burden of demonstrating the facts necessary to support the affirmative defense of probable cause for the arrests.
I would affirm the trial court's grant of summary judgment.