Clarence Bernard ROBINSON
v.
CITY OF WINSTON-SALEM, J. C. Hassell, and D. G. Burton.
No. 7621SC962.
Court of Appeals of North Carolina.
November 16, 1977.*630 Wilson & Morrow by Harold R. Wilson and John F. Morrow, Winston-Salem, for plaintiff-appellant.
Ronald G. Seeber, City Atty., and Womble, Carlyle, Sandridge & Rice by Roddey M. Ligon, Jr., Winston-Salem, for defendants-appellees, City of Winston-Salem and D. G. Burton.
Hall, Booker, Scales & Cleland by George M. Cleland, Winston-Salem, for defendant-appellee, J. C. Hassell.
PARKER, Judge.
This appeal presents the following question: What is the proper test for determining the civil liability of a Police Officer for false imprisonment when the officer, acting under a valid arrest warrant, arrests the wrong person because of a mistake in the identity of the person arrested? So far as research of counsel and our own research reveals, this is a question of first impression in this State.
In Melton v. Rickman, 225 N.C. 700, 703, 36 S.E.2d 276, 277-78 (1945), Barnhill, J. (later C. J.), speaking for our Supreme Court, said:
A cause of action for false arrest or false imprisonment is based upon the deprivation of one's liberty without legal process. It may arise when the arrest or detention is without warrant, Allen v. Greenlee, 13 N.C., 370; [Houston] v. DeHerrodora, 192 N.C., 749, 136 S.E., 6; *631 Cook v. Hospital, 168 N.C., 250, 84 S.E., 352; Hoffman v. Hospital, 213 N.C., 669, 197 S.E., 161, or the warrant charges no criminal offense, Rhodes v. Collins, 198 N.C., 23, 150 S.E., 492, or the warrant is void, or the person arrested is not the person named in the warrant. 4 Am. Jur., 81, sec. 132. All that must be shown is the deprivation of one's liberty without legal process. (Emphasis added.)
Taken literally, this language would appear to impose strict liability upon the officer for false arrest in any case where the person arrested is not the person named in the warrant, no matter what care the officer may have exercised to avoid the mistake. The case in which this language appears, however, involved an action for abuse of criminal process, and the question whether in an action for false arrest or false imprisonment the officer who arrests the wrong person is strictly liable or is liable only in the absence of reasonable diligence was not presented for decision.
Those jurisdictions which have considered the question now presented have adopted two approaches to its solution. Some have adopted the rule of strict liability, that an officer in executing a warrant assumes the risk that the person arrested may be the wrong one. Under this rule, if the officer arrests the wrong person he will be liable for false imprisonment no matter the degree of care he may have exercised, at least absent misleading conduct on the part of the person arrested. Other jurisdictions have adopted the view that the good faith of the arresting officer and his reasonable care in ascertaining the identity of the person arrested with the one named in the warrant should be the proper test of his liability. Under this view, the officer will not be liable for false imprisonment for mistaking the identity of the person named in a warrant if he exercises reasonable diligence to ascertain the identity correctly before he serves the warrant. See 32 Am. Jur.2d, False Imprisonment, § 71, p. 132; Annot., 127 A.L.R. 1057 (1940), supplemented in Annot., 10 A.L.R. 2d 750 (1950).
The strict rule which requires the officer to assume the risk of mistake puts him in an unenviable dilemma: failure to serve the warrant may amount to dereliction of duty, but no amount of caution protects him from liability if he arrests the wrong person. In our opinion this imposes an unreasonable burden upon the officer who is both careful and diligent. Accordingly, we adopt the rule, which appears to be the one followed by the majority of jurisdictions that have considered the matter, and hold that liability for false imprisonment will be imposed only when the arresting officer has failed to use reasonable diligence to determine that the party arrested was actually the person described in the warrant. For examples of cases following this rule, see Miller v. Fano, 134 Cal. 103, 66 P. 183 (1901); Wallner v. Fidelity & Deposit Co., 253 Wis. 66, 33 N.W.2d 215 (1948); State ex rel. Anderson v. Evatt, 63 Tenn.App. 322, 471 S.W.2d 949 (1971).
Under the rule which we adopt, the good faith of the arresting officer, in the sense of absence of malice, does not by itself relieve the officer from liability for compensatory damages. This is so because in this context good faith implies due diligence, and the "failure to exercise ordinary care . . . is inconsistent with good faith." Blocker v. Clark, 126 Ga. 484, 490, 54 S.E. 1022, 1024 (1906). Although lack of actual malice is no defense to a claim for compensatory damages, a showing of malice or of conduct demonstrating reckless disregard of the rights of others is required to support an award of punitive damages. See Alexander v. Lindsey, 230 N.C. 663, 55 S.E.2d 470 (1949); Rhodes v. Collins, 198 N.C. 23, 150 S.E. 492 (1929).
Applying the rule which we have adopted to the facts shown on the present record, we first note that the trial court's ruling granting summary judgment in favor of the defendants can be sustained only if the record, viewed in the light most favorable to the plaintiff as the party opposing the motion, discloses no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law. *632 G.S. 1A-1, Rule 56; Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). We find that genuine issues as to material facts bearing on the question whether the defendant police officers exercised due care are raised on the present record. The officers acted under authority of an order for arrest which directed them to arrest Bernard Jackson. Plaintiff's name is Clarence Bernard Robinson, and nothing in the record suggests that he has ever been known by any other name. Even if Officer Burton can show that the confidential informant who told him that Bernard Jackson lived at plaintiff's address was reliable, a fact which was not asserted in any of defendants' affidavits, Burton's affidavit shows that when the officers went to the address they were informed that Clarence Bernard Robinson was the only black male who lived there. Although defendants' affidavits assert that the SBI agent who had made the drug purchase identified a photograph of the plaintiff and later identified the plaintiff himself as the person from whom the purchase was made, Agent Riggsbee's affidavit sharply contradicts these assertions and is to the effect that Riggsbee never positively identified either the photograph or the plaintiff as the person from whom he purchased heroin. Finally, it is uncontradicted that even after the officers knew that they had arrested the wrong person, defendant was still held in jail overnight before he was allowed to go free. On this record, genuine issues of material facts were clearly raised bearing on the question whether each of the individual defendants exercised due care to avoid the mistake which was made. Accordingly, it was error to grant summary judgment dismissing plaintiff's claim for false imprisonment against the two individual defendants.
The result is:
The summary judgment dismissing all of plaintiff's claims against the defendant City of Winston-Salem is affirmed;
The summary judgment dismissing plaintiff's claims for malicious prosecution and abuse of process against the two individual defendants is affirmed;
The summary judgment dismissing plaintiff's claim for false imprisonment against the two individual defendants is reversed and this cause is remanded to the Superior Court in Forsyth County for further proceedings in connection with that claim.
Affirmed in part; reversed in part; and remanded.
MARTIN and ARNOLD, JJ., concur.