(dissenting).
I respectfully dissent as to the result.
When trial day approached for the second time, after the case had been pending for fourteen months, the plaintiffs frankly conceded that with the proof available they could not make out a case. They, therefore, moved for a non-suit without prejudice.
They had a choice of three roads to follow.
They could have gone to trial and suffered an unfavorable judgment, which would have been res ad judicata. Of course, they did not wish to take that course.
They could have moved, as they in fact did, for a dismissal without prejudice, in the hope that before the expiration of the six year statute of limitations they could come up with the necessary proof, from an inspection of the police files or otherwise. This would have left the defendants under the cloud of prospective litigation. Some of them were about to go out of office.
In the third place, plaintiffs could have moved for a review by the Court, in camera, of the police files to determine whether those files reasonably could be expected to reveal that which the plaintiffs could not otherwise prove, i.e., probable cause for an action in damages. So far as I can tell, no such motion was made.
The determinative factor as to the abuse of discretion is that the police officers gave the names of those who made statements in the police file purportedly identifying the officers who fired weapons on the occasion in question. These men, so identified, were Kenneth Dean, Barney Ray Cooper, and Luther Miles. These individuals were, of course, amenable to subpoena and examination by the plaintiffs. They were not police officers.
Plaintiffs are unquestionably entitled to every lawful opportunity to obtain all relevant evidence in a controversy to which they are parties. The procedures by which this may be done are plainly prescribed and available to all. Examination of confidential police files in a homicide case not yet closed, and for fishing purposes in the hope of learning something that might support an otherwise insupportable suit for damages, is not one of them. If it were, then all defendants in criminal prosecutions, already begun or anticipated, could file insupportable damage suits against police officers and take over the files.
As one of some experience in such matters, I am well aware that a favorite ploy of the law violator is to discourage *1218law enforcement officials by suing them on some pretext or another, false arrest or malicious prosecution or something else, if an officer dares arrest one of them or has to hurt him in the line of duty. This ought not to be encouraged beyond the requirements of due process, especially in a case admittedly without merit unless something can be turned up by fishing files presently confidential.
Plaintiffs have some responsibility for filing insupportable litigation, as they admittedly have done in this case. This is not only unfair to the defendants but it is a disservice to the judicial process.
On the basis of the available alternatives, one of which the plaintiffs did not seek to exercise, I would not hold that the trial judge committed an abuse of discretion by dismissing this case with prejudice.
Had he refused an in camera inspection to determine if the plaintiffs might later make a case when the files became available without injury to the public interest I would have held otherwise.