Orser v. State

Supreme Court of Montana · Torts

TortsMalicious ProsecutionGovernment ImmunityProbable Causemalicious prosecutionprobable causestate liabilitygame wardens

Facts

After a rancher reported hearing snow machines, gunshots, and seeing the machines return toward John Orser's house carrying two men and a boy with rifles, wardens went to Orser's property and saw Orser, his son, Charles Tecca, and the snow machines. The next day the rancher found three freshly killed elk, and the wardens found fresh snow machine tracks leading from the carcasses back to Orser's yard. The wardens then issued tickets to Tecca and Orser for killing and abandoning a game animal during a closed season. A jury later acquitted both men, and they sued for malicious prosecution.

Issue

Whether the State and its game wardens are absolutely immune from civil liability for malicious prosecution based on criminal charges filed within the wardens' official authority, and whether the filing of charges after plaintiffs were later acquitted could support malicious prosecution liability on these facts. The case also asked whether the wardens had probable cause as a matter of law.

Rule

The State is responsible for tortious acts, including intentional torts, committed by its game wardens within the course and scope of employment and official authority. State game wardens do not enjoy absolute personal immunity from suit for malicious prosecution; law enforcement officers have only the limited statutory immunity that excludes intentional torts and felonies. A malicious prosecution plaintiff must fully prove: (1) institution or continuation of a criminal proceeding by defendant, (2) favorable termination, (3) absence of probable cause, and (4) malice or a primary purpose other than bringing an offender to justice; probable cause exists when the defendant had reasonable grounds for suspicion, supported by circumstances sufficiently strong to warrant a reasonably prudent and cautious person in believing the accused guilty, and where the surrounding facts are undisputed, the court decides probable cause as a matter of law.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Bozeman, Montana, two state game wardens employed by the Montana wildlife department cited Eli Mercer for illegal taking of deer after an eyewitness reported shots, officers found a fresh carcass, and tracks led to Mercer's cabin. Mercer was acquitted and then sued the wardens and the State for malicious prosecution, alleging the wardens acted within their official duties when they filed the charges.

Which statement best reflects the State's potential liability?

Explanation. The majority held that the State must accept responsibility for the acts of its game wardens committed within the course and scope of employment and official authority, and that this responsibility includes actionable conduct beyond negligence, including intentional torts. The fact that malicious prosecution presupposes action under proper legal authority does not create immunity for the State. (Derived from Orser v. State (n.d.).)