Richard L. Anderson, Plaintiff-appellant, v. David W. Reynolds and W. L. (joe) Gee, Defendants-appellees, 476 F.2d 665 (10th Cir. 1973)

In this suit against state narcotics agents, Dr. Anderson seeks redress in damages for the deprivation of his civil rights by wrongful arrest. During a routine drugstore investigation the agents noticed that an unusually large number of narcotics were being prescribed by the physician. The agents then visited Dr. Anderson's office, gave him the Miranda warnings, and asked to see his patient-treatment records.¹  Dr. Anderson produced Treasury Department records showing orders from drug suppliers, but refused to produce other records requested by the agents. At a subsequent, similar meeting the agents informed Dr. Anderson that it was a crime to refuse access to the requested records, but the doctor again declined to comply with their requests.

Upon this disclosure to the Salt Lake County Attorney's Office, the Chief Criminal Deputy prepared a complaint charging Dr. Anderson with failure to permit inspection of records in violation of Section 58-13a-34, U.C.A., 1953,²  and authorized issuance of a warrant for Dr. Anderson's arrest. The complaint was sworn to in the presence of a Municipal Judge, and the warrant issued. Dr. Anderson was then arrested at his office. These charges were subsequently dismissed prior to preliminary hearing, and Dr. Anderson's wife was convicted of forgery of the questioned prescriptions. The physician then filed this suit, alleging that the narcotics agents deprived and conspired to deprive him of his civil rights by arresting him in retaliation for his refusal to permit inspection of his patient-treatment records, thereby injuring his professional reputation in violation of 42 U.S.C. §§ 1983 and 1985 (3).³ 

Pursuant to a jury-waived trial, the trial court, D.C., 342 F. Supp. 101, held upon to decide here. Dr. Anderson does that the investigation was conducted in good faith, that the agents made full and fair disclosure to the County Attorney's Office and the Municipal Judge, and that the arrest was neither the result of any conspiracy nor a violation of civil rights. We affirm the judgment for the defendants.

Dr. Anderson contends that the patient-treatment records requested by the agents are privileged records under Section 78-24-8(4), U.C.A., 1953, which provides that a physician cannot be "examined, in a civil action," as to information required in attending to his patients. But the physician-patient privilege, recognized and protected by that section, is specifically confined to civil actions, and manifestly has no applicability to investigations under Section 58-13a-34, U.C.A., 1953. Dr. Anderson further contends that he is not required to keep or permit inspection of the records demanded by the agents, inasmuch as the record-keeping statute pertains only to drugs administered, dispensed, or professionally used by him "otherwise than by prescription," and, additionally, that his privileges against unreasonable searches and seizures and self-incrimination under the Fourth and Fifth Amendments protect him against a warrantless search of his records. These contentions present interesting questions,⁴  but not the ones we are called upon to decide here. Dr. Anderson does not contend that his records were illegally searched; rather, his claim is that his arrest was a "penalty" imposed upon him because he refused to permit such an inspection-a claim of malicious prosecution. Cf., e. g., Madison v. Mantor, 441 F.2d 537 (1st Cir. 1971). "Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved." See Pierson v. Ray, 386 U.S. 547, 555, 87 S. Ct. 1213, 1218, 18 L. Ed. 2d 288 (1967). And see also Valdez v. Black, 446 F.2d 1071 (10th Cir. 1971). Nor is he liable if the law under which he acts is subsequently invalidated. See Pierson, supra. Our only question, then, is whether Dr. Anderson's arrest was justified by a showing of probable cause.

Based upon painstaking findings of fact, the trial court concluded that the prosecution was reasonably warranted and was, therefore, instituted in good faith; that the warrant of arrest, having been issued by a judicial officer upon the sworn complaint prepared by the County Attorney's Office, cannot be the basis for civil rights or false arrest liability against the enforcement officers who executed it.

The judgment is affirmed.