Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1964 No. 118 - Sep 3 1964
Attorney General John J. O'Connell


A city or town may, in a proper case (see in this connection AGO 61-62 No. 71) expend city funds to defend the acts of one or more of its officers in a civil action brought against them for a cause arising out of the performance of their official duties.

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                                                               September 3, 1964

Honorable Don L. Talley
State Senator, 18th District
404 North 7th
Kelso, Washington

                                                                                                              Cite as:  AGO 63-64 No. 118

Dear Sir:

            By letter previously acknowledged you have asked the opinion of this office upon a question which we paraphrase as follows:

            Does a city of the third class have authority to defend a civil action brought against police officers of the city in their individual capacities for false arrest, where the officers at the time of the alleged false arrest were engaged in the performance of their official duties and where the city is not made a party to the action?

            We answer your question in the affirmative, as qualified in the analysis.


            If the city were a party to the action, of course, the answer would be obvious without the necessity of an extensive analysis.  It is now the law of this state that a city may be held civilly liable for the tortious conduct of its police officers.  See,Kelso v. City of Tacoma, 63 Wash. Dec. (2d 912 [[63 Wn. 2d 913]]), 390 P. (2d) 2 (1964).  The defense of the police officer would, for all practical purposes, be identifiable with the defense of the city itself, inasmuch as a judgment against the officer would likely be rendered in terms against the city as well.

             [[Orig. Op. Page 2]]

            In this case, however, the question to be decided is whether the city has a similarly direct and substantial interest of its own to warrant the expenditure of its funds to defend one or more of its officers in cases where the city itself is not a party and is not, therefore, faced with the same immediate threat of liability.  In other words, is the need to avoid pecuniary liability the only ground for such a defense, or is there some other basis such as the police power of the city on which the city's action may be lawfully predicated?

            In a previous opinion of this office, AGO 61-62 No. 71 [[to Mark Litchman, State Representative on October 11, 1961]], we concluded that:

            ". . . [A] city of the first class has the power under existing state law to enact an ordinance providing for the use of corporation counsel to defend civil suits brought against its officers or employees in their individual capacity for wrongful arrest or assault and battery, under certain specified conditions."

            However, the exact reasoning of that opinion is not necessarily applicable to the discussion of the present question.  Cities of the first class are unique in that their powers are as broad as those of the state legislature, in the absence of restrictions placed upon them by a constitutional provision, by statute, or by the cities' own charters.  See,Winkenwerder v. Yakima, 52 Wn. (2d) 617, 328 P. (2d) 873 (1958).  Conversely, cities of other classes must as a general rule find their powers expressed in or necessarily implied from a legislative grant of authority.  See,Town of Othello v. Harder, 46 Wn. (2d) 747, 284 P. (2d) 1099 (1955);Pacific First Federal Savings and Loan Ass'n v. Pierce County, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947).

            There is an exception to this restrictive general rule when the ordinance, regulation or undertaking of the city is found to be within the scope of its police power.1/   In such  [[Orig. Op. Page 3]] matters, the power of the city is plenary, except as it may be limited by general law.  Article XI, § 11, of the Washington State Constitution provides as follows:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

            Concerning this constitutional grant of authority, our supreme court said inDetamore v. Hindley, 83 Wash. 322, 326, 145 Pac. 462 (1915):

            "This is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself.  It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws.  [Citations omitted.]"

            See, also,Lenci v. Seattle, 63 Wash. Dec. (2d) 667, 388 P. (2d) 926 (1964), at page 670.

            Under these authorities, it is apparent that the police power of all cities is equally as broad as the general powers of first class cities described in AGO 61-62 No. 71, supra.

            The precise question to be answered, therefore, is whether or not the defense of its police officers at city expense under the circumstances described above may be said to fall within the proper scope of a city's "police power."  To our knowledge, the question has never been presented to our supreme court.

            Courts from other jurisdictions, presented with the issue, have generally sustained the power of a city to indemnify or provide counsel for its police officers in similar cases.  Some of those courts have based their decisions upon the city's police power, specifically on the ground that the defense of a police officer in an appropriate case promotes the ends of peace and good order by demonstrating evidence of the city's support for its own law enforcement agency.  See,Cullen v. Town of Carthage, 103 Ind. 196, 2 N.E. 571 (1885);  [[Orig. Op. Page 4]] City of Moorhead v. Murphy, 94 Minn. 123, 102 N.W. 219 (1905); State ex rel. Feist v. Foot, 151 Minn. 130, 186 N.W. 230 (1922);City of Corsicana v. Babb, 290 S.W. 736 (Tex., 1927);Roper v. Town of Laurinburg, 90 N.C. 427 (1884); and Sherman et al v. Carr, 8 R.I. 431 (1867).

            Of course, there is not unanimous agreement on the proposition, and some cases deny the proposition that a municipality may provide a defense to its officers.  See,City of Nampa v. Kibler, 62 Idaho 511, 113 P. (2d) 411 (1941);Chicago v. Williams, 182 Ill. 135, 55 N.E. 123 (1899); Donahue v. Keeshan, 91 App. Div. 602, 87 N.Y.S. 144 (1904); andMiller v. Hastings Borough, 25 Pa. Sup. Ct. 569 (1904).

            It appears, however, that the majority of cases support the power of a city to provide a defense, on one ground or another, and to the extent that there is a division of authority, it seems to be based upon divergent views of which course of action is best supported in public policy.  See the extensive annotation in 130 A.L.R. 736.  Some cases, as noted therein, evidence fear that law enforcement may become careless if police officers are provided with indemnification.  In this state, prior to 1963, the public policy was not clearly defined and most municipal attorneys as well as attorneys in this office entertained doubts on the matter.

            The public policy of a state may be found in its statutes.  See,York v. Gaasland Co., Inc., 41 Wn. (2d) 540, 250 P. (2d) 967 (1952).  On the question of whether or not it is a wise policy to allow some measure of indemnification to law enforcement officers in the performance of their duties, our state legislature, at its 1963 session, resolved the question in favor of protection.  Chapter 127, Laws of 1963, was enacted to provide as follows:

            "Any city of the second or third class or town may contract with an insurance company authorized to do business in this state to provide group insurance for its employees including group false arrest insurance for its law enforcement personnel, and pursuant thereto may use a portion of its revenues to pay an employer's portion of the premium for such insurance, and may make deductions from the payrolls of employees for the amount of the employees' contribution and may  [[Orig. Op. Page 5]] apply the amount deducted in payment of the employees' portion of the premium.

            "Any county may contract with an insurance company authorized to do business in this state to provide group false arrest insurance for its law enforcement personnel and pursuant thereto may use such portion of its revenues to pay the premiums therefor as the county may determine."

            Section 1, relative to cities and towns, is now codified as RCW 35.23.460 (amended).

            This recent legislation demonstrates a belief on the part of our state legislature that the public benefit to be gained from protection of our law enforcement agencies outweighs any possible detriment and that it will not necessarily encourage reckless conduct on their part.

            In our opinion, therefore, previous doubts as to the public policy of this state on the question have been resolved.  We conclude that a city of any class may, in a proper case, expend city funds to defend the acts of one or more of its officers in a civil action brought against them for a cause arising out of their performance of official duty.  This does not necessarily imply that a city may, instead of providing insurance, undertake to provide full indemnity by paying or agreeing to pay all or any part of a judgment rendered against the officer alone.  That type of indemnity is generally covered by insurance, and the legislature has specifically authorized group false arrest insurance for that purpose.  Therefore, any other method of providing such indemnity is arguably excluded.  See,State ex rel. Eastvold v. Maybury, 49 Wn. (2d) 533, 304 P. (2d) 663 (1956).

            We merely conclude that the public policy of this state, as now clarified by the legislature, permits a city to either provide indemnity (by way of false arrest insurance) or to exercise its police power in a narrower scope by undertaking the legal defense of its police officers, pursuant to a determination of merit in each case.  In this latter case, it is more accurate to say that a city may act, not necessarily for the benefit of the officer but merely in support of his actions on behalf of the  [[Orig. Op. Page 6]] city.  The city's undertaking in such cases is directly and primarily for the public benefit, to uphold the powers of its law enforcement agency.  For this reason, it is sustainable as an exercise of the "police power," as that term is defined by our courts.

            Of course, the adoption of a policy of providing such a defense, as a police measure, should be by ordinance.  AGO 61-62 No. 71,supra.  The decision in individual cases should be made pursuant to the legislative standards laid down in the enabling ordinance.  In every instance, the decision should be supported by findings, in the record, qualifying the action as in conformity with those standards and accordingly as a proper exercise of the police power.

            As to what is a "proper case," the qualifications expressed in our earlier opinion, AGO 61-62 No. 71, supra, would be equally applicable.  As we pointed out at pages 7-8 of that opinion:

            "However, the rule itself is subject to certain qualifications, stated in 3 McQuillin,supra, § 12.137, as follows:

            "'". . . did the act done by the officer relate directly to a matter in which the city had an interest, or affect municipal rights or property, or the right or property of the citizens which the officer was charged with a duty to protect or defend?"  It has been said that in order to justify the expenditure of money by a municipal corporation in the indemnity of one or any of its officers for a loss incurred in the discharge of their official duty, three things must appear.  First, the officer must have been acting in a matter in which the corporation had an interest.  Second, he must have been acting in discharge of a duty imposed or authorized by law.  And third, he must have acted in good faith. . . .'

            "Thus, for instance, if the municipal authorities find in advance reasonable  [[Orig. Op. Page 7]] grounds to believe that the alleged assault and battery was in fact a reasonable exercise of force in the making of a valid arrest, by a police officer in good faith, the defense would be clearly proper under an enabling ordinance.  On the other hand, the cases and authorities cited in this opinion would not support expenditures of municipal funds to defend officers or employees of a city in civil suits for private torts or in prosecutions for crime or official misconduct.

            "A further consideration is recommended in the language of the court inMoorhead v. Murphy, 94 Minn. 123, 126, supra, as follows:

            "'"It would seem, therefore, to be the wisest to leave the indemnification of the officer to the discretion of those who represent the interests of the city, that, . . . they should not be obliged to protect every officer, though acting in good faith, under circumstances which seem to them to indicate a blamable want of care and caution."'"

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The term "police power" of the state, or of its municipal corporations in their jurisdictions, is generally used to describe enactments of the legislative body designed to protect and promote public peace, health, morals and safety, and also the general public welfare.  See,City of Tacoma v. Fox, 158 Wash. 325, 330-331, 290 Pac. 1010 (1930).