I am in receipt of your letter of May 4, 1956 in which you request an opinion as to the liability of a police justice for false arrest if the wrong person is arrested under a “John Doe” warrant issued for a parking violation.

Section 152 of the Code of Criminal Procedure authorizes the designation of a defendant in a warrant of arrest by any name where the defendant's name is unknown to the magistrate.

Section 2, subdivision 29 of the Vehicle and Traffic Law defines traffic infractions and in substance in part provides that as to courts and judicial officers exercising jurisdiction over traffic infractions all of the provisions of law relating to the prosecution of misdemeanors, with certain specific exceptions not pertinent hereto, shall apply to such traffic infractions.

It is a general rule that a judicial officer is not liable for false arrest or detention arising out of acts done in his judicial capacity where there is not a clear absence of all jurisdiction over the subject matter and person even though such acts constitute an excessive or erroneous exercise of jurisdiction (35 Corpus Juris Secundum, § 44). This is in accord with the ancient doctrine of judicial immunity which excepts judges from liability for acts performed in the exercise of the judicial function.

This immunity is based upon considerations of public policy on the theory that the public interest is best served when the judicial officer is free to act upon his independent convictions, unswayed by any consideration or apprehension of possible attendant personal consequences (Bienenstock v. McCoy, 194 Misc. 927).

Where the prerequisite information and depositions have been taken and where the police justice has jurisdiction of the subject matter he may properly issue a “John Doe” warrant and he is sufficiently protected in such action by the provisions of Section 152 of the Code of Criminal Procedure. This statutory protection is further strengthened by the decision of the Court of Appeals in People v. Rubin, 284 N. Y. 392 wherein it was held that the trier of the facts had the right to infer that the registered owner of an automobile was the person who stationed the automobile in violation of parking regulations.

In my opinion, therefore, where the jurisdictional requirements have been met a police justice may not be subjected to suit for false arrest for the issuance of a “John Doe” warrant where the wrong defendant is arrested.

Since the Attorney General is authorized to render official opinions to State Departments and State officers only the foregoing opinion must be considered informal in nature and furnished with the desire to be of assistance to you.