Delong v. State Ex Rel. Oklahoma Department of Public Safety

JOPLIN, Judge.

¶ 1. Appellant Debra Delong (Delong) seeks review of the trial court’s order granting summary judgment to Appellee State of Oklahoma, ex rel. Oklahoma Department of Public Safety (State) in Delong’s action to recover damages for alleged false arrest/imprisonment. In this appeal, Delong asserts, in essence, that insofar as she bases her claims on the lack of probable cause for her arrest, her nolo contendere pleas to charges arising from her alleged unlawful arrest do not preclude her from pressing her claim as determined by the trial court. We disagree, and hold the trial court properly granted summary judgment to State.

¶2. The record submitted on summary judgment shows that an Oklahoma Highway Patrol Trooper stopped Delong after observing Delong allegedly operating her vehicle in an erratic manner. The trooper arrested Delong, and transported her to the Cotton County Jail, and Delong was charged with driving while under the influence of drugs, possession of marijuana, resisting an officer, obstructing a police officer in performance of his duties, attempted escape from detention, and failure to carry a bill of lading. On agreement for dismissal of the remaining charges, Delong later entered nolo contende-re pleas to the charges of resisting an officer and attempted escape.

*938¶ 3. Delong then commenced the instant case against State, alleging “she was falsely arrested and imprisoned by ... Oklahoma Highway Patrol Troopers,” and that “she was falsely accused of criminal acts by said officers, when in fact, the officers knew or should have known that the same was not true.” State moved for summary judgment, and argued that while Oklahoma statutes indeed proscribe admission of evidence of a nolo contendere plea, the statutes should be interpreted to proscribe only the offensive use of such plea to establish a criminal defendant’s civil liability for the underlying acts, not the defensive use of evidence of a nolo contendere plea to defeat a criminal defendant’s civil’ claim asserted against a third person, and that Delong’s nolo contendere plea to attempted escape admits the underlying probable cause for her detention, thus defeating her false arrest claim. In opposition to State’s motion for summary judgment, Delong argued the officers had no probable cause for her initial stop and arrest on suspicion of driving under the influence, that her nolo contendere pleas to the charges of resisting arrest and attempted escape are not admissible, but that if her nolo contende-re pleas are in fact deemed admissible, such pleas admit nothing about the officers’ probable cause to initially stop and arrest her. The trial court agreed with State and granted summary judgment accordingly. Delong appeals, and the matter stands submitted for accelerated appellate review on the trial court record.1

¶ 4. To the extent Delong seeks to assert claims for both false arrest and false imprisonment, we first note:

[Tjhere is a distinction in the manner in which causes of action for false arrest and false imprisonment arise....:

In a false arrest, false imprisonment exists, but the detention is by reason of an asserted legal authority to enforce the processes of the law; in a false imprisonment, the detention is purely a matter be tween private persons for a private end, and there is no intention of bringing the person detained before a court, or of otherwise securing the administration of the law.

McGlone v. Landreth, 200 Okla. 425, 195 P.2d 268, 271 (1948). Inasmuch as Delong seeks recovery against a political subdivision of the state for the acts of its employees acting within the scope of their employment as law enforcement officers exercising their “asserted legal authority to enforce the processes of the law,” we thus analyze Delong’s claim as one for false arrest.

¶ 5. In that regard, “[fjalse arrest is the unlawful restraint of an individual against his will. (Citations omitted.)” Irwin v. SWO Acquisition Corp., 1992 OK CIV APP 48, ¶ 13, 830 P.2d 587, 590. “Plaintiff, in an action for false arrest has the burden of proving lack of probable cause for bringing a criminal action against him and is required to prove lack of probable cause. (Citations omitted.)” Irwin, 1992 OK CIV APP 48, ¶ 12, 830 P.2d at 590.

¶ 6. In Irwin, the Court of Appeals first recognized that the Oklahoma Evidence Code indeed proscribed admission of such a plea against a former criminal defendant. See, 12 0:S.1991 § 2410. See also, 22 O.S.1991 § 513. However, the Court of Appeals in Irwin, persuaded by a similar holding of the Sixth Circuit Court of Appeals, interpreted the purpose of these exclusionary rules to proscribe “offensive” use of a nolo contende-re plea admission of the underlying facts to establish the criminal defendant’s subsequent potential civil liability, not to proscribe “defensive” use of the admission against the criminal defendant in a case where the criminal defendant sought to recover damages for an alleged unlawful arrest, having admitted facts indicating no civil liability of the arresting officers. See, Walker v. Schaeffer, 854 F.2d 138, 142, 143 (6th Cir.1988) The Court of Appeals in Irwin thus held a nolo conten-dere plea admissible. 830 P.2d at 590.

¶ 7. We are likewise persuaded by the Walker analysis as the proper analysis to be employed in our case. Under that rationale, Delong’s nolo contendere pleas to the charges of resisting arrest and attempted *939escape from detention are admissible defensively, and admit the validity of those charges, thus likewise establishing probable cause for the arrest on those charges, and waiving any irregularities in the criminal proceedings including lack of probable cause. See, e.g., Mack v. State, 492 P.2d 670, 672 (Okla.Cr.1971). Moreover, the record contains the affidavit of the arresting officer on the charge of DUI establishing that the officer originally .stopped Delong after having observed her “weaving on and off [the] road [and] lane straddling,” and Delong offered no evidence concerning the operation of her vehicle contradicting the arresting officer’s affidavit. This evidentiary material, uncontro-verted as it is, coupled with the admission of facts and waiver of irregularities affected by entry of Delong’s nolo contendere plea, establishes the arresting officer’s probable cause to initially stop and arrest Delong, and absent evidentiary material to the contrary, is fatal to her claim of false arrest.

¶8. We therefore hold the trial court properly granted summary judgment to State. The order of the trial court granting summary judgment to State is therefore AFFIRMED.

BUETTNER, J., concurs.
HANSEN, P.J., dissents with separate opinion.

. Rule 13(h), Rules for District Courts, 12 O.S. Supp.1993, Ch. 2, App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App.