*1 the district court will be judgment grant instructions to reversed with
judgment n. o. v. in favor of Ford. NORTON, Appellee,
Elizabeth Ann Butzner, Judge, dissented and opinion. filed America, UNITED STATES Appellant, O’Brien, Turner,
John Robert
Defendants.
No. 77-1919. Appeals,
United States Court
Fourth Circuit.
Argued April July
Decided Brodhurst, (3d disposition case, our Gomes we do not reach 1967), at 5 codified V.I.C. Given these issues.
Md., Salzer, Md., D. Spring, Robert Silver brief), appellee. on for WINTER, BUTZNER and WID- Before ENER, Judges. Circuit WINTER, Judge: Ann Norton was Elizabeth awarded sum- mary judgment against the United States $12,500 in the sum her suit under the fourth amendment for viola- tion officers of rights secured that amendment. her result, reaching this the district court ruled that the United States could not assert as a defense to its faith and reasonable belief of officers in the le- their gality provided conduct which Turner, basis of the suit. Norton v. (E.D.Va.1977). F.Supp. 138 The correctness ruling of that is the sole on appeal. issue We reverse and remand for further ceedings.
I. approximately eight At o’clock on the evening Alexandria, March Virginia, Department Police received an anonymous telephone call advising that the nationally-sought fugitive Patricia Hearst occupying apartment was in the area. Alexandria Federal arrest warrants for were outstanding. her arrest The FBI immediately and, approxi- was notified mately p. evening, 9:30 m. on the same four agents, together FBI with two local detec- tives, reported arrived at the address. Af- surveying approximately ter the site for minutes, thirty sought entry the officers suspect apartment. into the The officers Blankenstein, Atty., Appellate had been warned that Paul Sec Ms. Hearst should be Div., Justice, tion, Dept. dangerous. Wash considered armed and Civ. No Babcock, (Barbara Allen Asst. search was either ington, sought D. C. or obtain- .warrant Gen., Cummings, William B. U. S. ed. Atty. Kanter, Alexandria, Va., and William
Atty., apartment plaintiff was that of who Section, Div., Dept. of Jus Appellate Civ. apartment. alone Since it was C., tice, brief), appel Washington, D. for night ten o’clock at and her door had no lant. visitors, peephole viewing she refused to Grad, Alexandria, (Philip agents. Va. J. Conversation D. admit ensued. John Grad, C., prevail upon plaintiff open P. Alex- Hirschkop, Hirschkop & Unable Blitz, door, andria, Va., Spring, agents began entry. Arthur H. forcible Silver Plaintiff, ment fearing that door would be had violated fourth plaintiff’s amend- destroyed, lock and the law rights unlatched the since the officers had insuffi- weapons entered with cient enforcement officers cause to believe that in- Hearst was apartment A search of the revealed plaintiff’s apartment. drawn. side 427 F.Supp. at Patricia Hearst or her no traces of either respect good-faith 143-44. With *3 After suspected companions. concluding reasonable-belief defenses the individual anonymous tip the was either a hoax defendants, that the court concluded that unre- attempt by disgruntled neighbor a to or solved issues summary judg- of facts made departed. plaintiff, the harass officers inappropriate. ment Id. at 145-46. toAs States, however, the United summary judg- brought this suit subsequently Plaintiff ment plaintiff. was the entered for After the law damages against enforce- for both carefully considering both the and the ment officers involved United history the surrounding enactment of the police local against the offi States. Suit the amendment to Federal Tort Claims brought cers was under U.S.C. § implications Act and the policy of expanded against agents suit federal while was governmental liability thereunder, the dis- brought the fourth directly under amend- proof trict court concluded of a consti- of the ment Constitution United by tutional violation federal law enforce- See Bivens v. Unknown States. Six Named ment per officers is sufficient se to render Narcotics, Agents of Federal Bureau of the government any for liable sus- tained as a result the unconstitutional (1971). Both the local federal otherwise, conduct. Id. at alia, 146-52. Stated suit, ground defended the inter on the the United States could not defend its lia- they good acted in faith and with a bility on the agents’ basis of its good faith reasonable belief in the lawfulness of their and reasonable belief even if it Damages against prove actions. were claimed could Thereafter, upon both. motion of plaintiff, United States under Federal Tort the district (FTCA), recently Act court dismissed the suit against Claims then amended against allow suit individual defendants and judg- to United States entered federal or law investigative where enforce- the United States in the types $12,500. ment officers commit certain in- amount of This appeal followed. conducting tentional torts the course of making
searches or arrests. Pub.L. No. 93- II. (1974) (amending § Stat. 50 appeal this does 2680(h)).1 United U.S.C. States also § not contest the district court’s finding that alia, ground, defended on the inter plaintiff’s violation of fourth amendment good faith and belief in the reasonable law- rights occurred. Nor does it dispute the part on the fulness their actions of its applicability of 28 U.S.C. 2680(h), as § agents. amended the instant to action. The summary judgment, 2680(h) On cross-motions for amendment to clearly § intended district court first determined that the waive the sover entry apart- officers’ into and search of the eign-immunity defense in brought suits chapter 1. Pub.L. amended 28 U.S.C. sions of this Claim [Tort Procedures] 2680(h) by adding proviso 1346(b) apply to it. Section and section of this title shall portion any arising, 2680 is the of the Federal Tort Claims claim on or after the date of the excepts gen- proviso, assault, claims from Act certain enactment of this out of immunity, pre- sovereign battery, imprisonment, arrest, eral waiver of thus false false serving immunity sovereign as to process them. Sub- prosecution. abuse of or malicious (h) preserves respect section with purpose subsection, For the “investi- arising imprisonment, claims out gative of false false or law enforcement officer” means arrest, etc., proviso reads: and the any officer of the United States who is em- powered by searches, That, law execute seize to acts or omissions of evidence, investigative or to make arrests for violations law enforcement officers of Government, (Emphasis added.) provi- Federal Law. United States redress committed cers. See Admin.News, p. 2789. Sess., reprinted violations S.Rep. No. of the fourth 93rd Cong., Cong. & offi- 2d tensive with the fourth amendment. for ditional doctrine of that an individual officer should common-law his constitutional torts, police-officer liability the court Looking duty escape per- to the tra- concluded under sonal if he establishes that he acted raised only issue isWhat “in faith and reasonable belief a] [with extent of is the appeal in this validity in the of the arrest and search and The United FTCA. liability under its necessity carrying out the arrest greater liability is no its urges that States way and search in the the arrest made that, It submits employees. than that of and the search was conducted.” 456 F.2d respon principles traditional under both 1972). This definition 1348 Cir. prece FTCA and established superior tden duty an individual officer’s tort under Bi- *4 defenses to assert all dent, entitled it is widely accepted.2 vens has been individually, includ agents to its available While Bivens created a federal tort for good faith and reasona ing the defenses amendment, certain violations of the fourth hand, Plaintiff, the other on ble belief. (and not) it did not could indeed court’s uphold we the district urges that employer, on the officer’s the fed- governmental lia view of expansive more government. eral The federal fisc was view of the more limited adopt We bility. by the tected traditional doctrine of sover- by us liability urged upon eign immunity.3 inability to secure a liability of the' United and hold remedy against the United severely States with 2680(h) is coterminous under § States restricted the effectiveness of the Bivens the, under Bivens. agents liability of remedy. Percy As Senator remarked after conducting hearings much-publi- into the III. drug cized raids in which inno- Collinsville a 1971, Supreme persons announced cent suffered insubstantial Court In viola- abuse at the hands of federal narcotics remedy to redress by agents: of the fourth tions officers. Bivens Six enforcement
law While victims of abusive gives [Bivens ] Agents of Federal Bu- relief, Named their opportunity Unknown tactics some Narcotics, Bivens cre- supra. While remedy severely by reau of limited the ease in sounding of action usually a federal cause can ated establish 28 in federal courts under cognizable having the defense of acted in tort 1331, scope Moreover, probable it did not delineate and with cause. U.S.C. § remand, the duty. against tort On causes of action officials as indi- of the officer’s will, occasion, an officer’s virtually concluded that viduals on be Second employees Bivens should not be coex- worthless since duty under tort Bivens, States, See, analysis clearly implies g., Leasing 560 cuit’s in Hill M. v. United 2. e. G. denied, 1011, (10 1977), (and agree) scope cert. 435 1015 Cir. we that the F.2d should 1485, (1978); 923, federal, 55 L.Ed.2d be the same for state and local law Ciccone, (8 557 F.2d Cir. officers, Ervin v. regardless of whether the enforcement Ritchey, 1977); Rodriguez F.2d predicated claim is 1983 or on § Bivens. Groff, (5 1976); Mark v. 521 F.2d 400-01 Cir. Wilson, (9 1975); Apton v. 1379-80 Cir. by tort Bi- It was reasoned that created U.S.App.D.C. Trit vens was an intentional tort and that suit Backer, (7 1022-23 sis v. 501 F.2d was therefore the United States barred directly 1974). held has never While this court which, 2680(h) by prior 28 U.S.C. § law enforcement officer enti that a federal flatly excepted “[a]ny arising claim from FTCA good-faith and reasonable-be tled to assert assault, battery, imprisonment, false out of with a Bivens defenses when confronted lief arrest, prosecution, false malicious abuse of claim, law enforce we have so held as to local libel, slander, process, misrepresentation, de- who are sued under U.S.C. ment officers ceit, rights.” or interference with contract Rowland, F.2d 1374 Cir. Hill v. heavily 1973). relying on the Second Cir property, personal in funds as to or may lacking injury be or death be so judgment proof. caused by negligent wrongful or act (1973) (individual for the intentional min.News at 2789. Enacted provide and law enforcement Percy proposed a rider S.Rep. No. Consistent with these remedy against 93-469, views torts 93rd officers.” S.Rep. of its investigative Cong., 1st Sess. 36 to H.R. 82454 remarks, Senator Senator United States Cong. March, Percy). & Ad- No. “to As evidenced or Government scope curred. claimant circumstances where private omission of place of his (Emphasis in accordance with the law of person, would be liable to the where the office while by any employee the clear added.) acting act employment, United or. omission oc- language within the under if provisions as well as subsequent legislation as Pub.L. No. law, Congress case did not intend to create exception create an amended FTCA so as to FTCA; substantive federal exception enacting to the intentional-tort of 28 it limited the 2860(h). the United States U.S.C. § for the acts or omis- which, sions of its employees turn, were IV. tortious under the law of the place where In waiving sovereign with re- the acts or omissions occurred. Both the gard to intentional torts committed fed- precipitating scope tort and the *5 of the investigative eral or law offi- government’s ..enforcement vicarious were to be cers, Congress enact a did not discrete stat- governed by “the law of the where [state] rather, utory it provision; used as its vehi- the act or omission occurred.” See Laird v. Act, cle the Tort 28 Claims U.S.C. Federal Nelms, 797, 801, U.S. S.Ct. 1346(b), seq. 2671 et Section §§ L.Ed.2d 499 Richards v. United sovereign waives the of the Unit- States, 6-7, ed and thus it liable States renders for the Act, torts described in the states that United liable States “shall be ... It incongruous therefore that the same manner to the same extent as Congress utilized FTCA as the means of private individual under like circumstanc- waiving sovereign immunity in the Bivens ” added). . . . (emphasis es Section context. tort, Bivens created a federal 1346(b), jurisdictional grant the basic of scope of governmental liability under FTCA, jurisdiction in vests exclusive Unit- presents the 1974 amendment essentially a ed over suits involving States district courts question of federal law.5 Instead of look States, ing particular to a
claims
the United
for
state’s doctrine of re
money
accruing
spondeat
damages,
superior,
and after
we
as
would in
typi
January
injury
case,6
for
cal
loss of
FTCA
we must seek to determine
pending
scope
government’s
4. Then
the Senate
before
Government
federal rule as to the
of the
Committee,
Operations
Therefore,
H.R. 8245 concerned
under FTCA.
we
reorganization
drug
various
inappropriate,
enforce-
find it
as the
would
agencies.
do,
rely upon
have us
to
traditional
state-law
respondeat
superior.
doctrines of
See n.8 in-
Agents
5. Cf. Bivens v. Six Unknown Named
fra.
Narcotics, supra,
Federal Bureau of
403 U.S. at
J.,
(Harlan,
concurring).
waived The decision we reach sup is also Second, thought court district ported by the principle well-established legislative history— other documents in the statutory interpretation specifically Percy’s quoted remarks Senator “statutes which waive prepared earlier and memorandum of the United States staff Operations of the Senate Government from suit are to be construed strictly in provide support direct for the sovereign.” favor of the McMahon Unit- Committee — Indeed, description 10. For a vivid ment. the Collinsville we call attention to footnote 15 raids, Boger, J. al. see et The Federal Tort opinion, F.Supp. of the district court’s Amendment, Torts Claims Act Intentional su- acknowledges where court that it was pra, at 500-02 N.C.L.Rev. copy unable to secure a of this memorandum documents available. Instead article, Boger, 11. Gitenstein Verkuil *7 rely upon the Boger, court was forced to the n.9, supra suggested it is that the memo- staff proof Gitenstein and Verkuil article both for congressional in- randum is conclusive as to the existence of the memorandum and for its tent: If, say, contents. as the article’s authors the however, point, On one the Senate commit- “clearly point committee was insistent” on the clearly distinguishing on tees were insistent clearly and if this is what the committee prior from their recommendation law. The “meant,” the committee’s failure to note this government not was to be allowed to departure clearly report from Bivens in its liability escape under the new re- statute totally inexplainable. treating behind various “defenses” that had placed weight been under Bivens or 12. The district created section court on also oth- Thus, despite language report suggesting . constant reference er in the an intent legislative impose liability to and sec- documents Bivens to when federal act in 1983, proposed tion was probable “bad faith or without cause” when very aspect meant differ in this crucial searches are conducted “without warrants or analogues. from its historical probable with warrants issued without cause.” 54 at N.C.L.Rev. F.Supp. 427 at 149. To the extent that either of The fact is that the memorandum phrases support expansive an view of record; part legislative made it was not governmental liability, we discount them as to, any point during referred nor mentioned at imprecise draftsmanship. attributable legislative consideration of the amend- 1974
397 legality in the 27, 17, 19, 96 sonable belief of their con- 25, States, 72 S.Ct. 342 U.S. ed mindful of duct.14 While we are 26 L.Ed. not to admonition Frankfurter’s
Mr. Justice AND REMANDED. REVERSED guardi- as a “self-constituted ourselves view [importing] Treasury BUTZNER, Judge, dissenting: it,” to limit designed a statute into back States, primarily I dissent for the reasons stated 350 Towing Co. v. United Indian court, opinion of the district Norton 69, 61, 76 S.Ct. U.S. Turner, (E.D.Va.1977), v. 427 138 F.Supp. question little but can be (1955), there which, view, my correctly analyzes the to the without imposition history and the legislative scope of the 1974 good faith officer’s defenses individual Act, Federal Tort Claims would be substantial belief and reasonable 2680(h). I Consequently, 28 U.S.C. write § principles general from departure enough briefly only emphasize the incongruity of impose and would superior13 respondeat allowing government to escape liability impact on enough potentially burdensome personal on the basis of the immunity of its sup- be treasury that it should the federal officers. expression of by a clear ported or in the the statute itself intent in either Supreme Court has treated Laird legislative history. Cf. accompanying officials, faith defense of executive includ- 802, Nelms, 92 S.Ct. supra, 406 U.S. v. ing officers, qualified as a 135, 1899; v. 340 U.S. Feres United immunity. Strickland, Wood See v. 420 (1950). Be- L.Ed. 152 95 S.Ct. 308, 313-22, 43 L.Ed.2d legis- statement of a we find no clear cause (1975); Rhodes, Scheuer 416 U.S. expand policy to lative (1974); S.Ct. L.Ed.2d 90 beyond scope of its vicarious Ray, Pierson v. liability, this rule of construc-
agents’ direct
1213, 18
(1967).1
Immuni
we reverse the decision of
requires
tion
ty is conferred because of the status of the
official,
and remand this case in
court
the district
but it does not diminish the tort.
Prosser,
produce
Torts,
to allow
W.
The Law
order
ch. 26 at 970
and rea-
agents’ good
1971).
of its
(4th
evidence
The Chief Justice succinct-
ed.
noted,
See,
privilege.
employers
g.,
as a
court itself
e.
13. As the district
Bivens v. Six Un-
princi-
generally
etc.,
Agents,
under traditional
(2d
are
entitled
known Named
respondeat superior
ples
all
1972)
to assert
defens-
(defense);
(Second)
Restatement
employees. Restatement
to their
es available
121(b) (privilege).
generally,
Torts §§
See
(2d), Agency,
Norton
219 Comment c
Turner,
F.Supp.
Norton v.
147 n.9
Turner,
F.Supp.
supra, 427
at 147.
(E.D.Va.1977). Under these theories officers
wrong.
are considered to have done no
Press-
interesting proposal
that would
14. For an
ing
acceptance
for the
of this nomenclature the
legislatively
the result reached
achieve
vicariously
contends that it is not
Newman,
below,
Suing the Law-
see J.
court
liable.
Proposals
Strengthen the Section
breakers:
course,
prefer
Supreme
Of
I
Remedy
to follow the
Damage
for Law Enforcers’ Mis-
analysis
recognizes
conduct,
(1978). Judge
Court’s
New-
that the
87 Yale L.J.
de-
immunity.
say,
proposes
be amend-
fense
a true
that 42 U.S.C. 1983
That is to
man
even
every
though
erred,
public
em-
officer has
ed
interest
*8
government
federal,
department
assuring
ploying
discharge
grants
of his duties
—
torts of its
qualified
the constitutional
immunity
state or local—for
him a
or absolute
as the
liability upon
imposition
employees.
may
“[T]he
simple
be.
case
Of the three theories —
employer
wrongdoer’s
it
would make
en-
defense, privilege,
immunity
most re-
—the
”
tirely appropriate
.
.
.
those
to eliminate
concept
immunity.
Stump
alistic
is
See
wrongdoer himself.
available
defenses
Sparkman, 435 U.S.
98 S.Ct.
at 459.
Id.
(absolute
(1978)
immunity);
Rhodes,
Scheuer v.
U.S.
94 S.Ct.
police
refer
officers’
authorities
1. Other
(1974) (qualified immunity).
Public whether tween qualified immunity granted a police, legislators judges, ors or who public official and sovereign immunity. A they public make decisions when are fail official is protection afforded from personal implement needed or who do not act to public because the interest requires that they fully decisions when are made do not he be free discharge his in good duties faithfully perform the duties of their without of being fear impoverished if he errs. that officials See Implicit offices. idea Scheuer Rhodes, supra, 416 U.S. at immunity or quali- have some —absolute hand, 1683. On the other sovereign immu- recognition acts is a fied —for their is nity based recognition on the “that there they may concept immunity The err. legal can be right no as the authori- on to assume that goes assumes this and ty that makes the law on right which the possible it is better risk some error and depends.” Polyblank, Kawananakoa v. than not to decide injury from such error 349, 353, at [emphasis or act all. added] (1907); Cohens v. Virginia, previously The never belied Wheat.) 264, 411-12, 5 L.Ed. 257 immunity of its officers as defense. The basic flaw in the position sovereign immunity. It asserted its own premise that these distinctive immu- But the 1974 to the Act un- nities are interchangeable. They are not. equivocally immunity for sovereign waived By amending the Act Congress specified torts committed law enforce- preserved the qualified immunity of federal ment officers. The Act does not condition officers; the same sovereign immunity waiver on the time, it public allocated at large the personal immunity. absence of the officers’ mistake, risk of a instead of visiting the law, principle No statute or of common no solely cost on the innocent victim precedent, state, decisional either federal or error. authorizes the to substitute its judgment Because the of the district immunity officers’ for the sover- personal court conformed unexceptionably to the eign immunity Congress which an Act of 1974 amendment and the congressional in- waives. tent prompted reform, I respect- Indeed, ordinarily does the common fully dissent. permit escape liability employer personally because immune. employee his in Restatement
The rule is stated as follows
(Second) 217(b)(ii) (1958): Agency
(b) has no defense be- principal The
cause of the fact that:
(ii) agent had an from as
civil to the act. acceptance principle of this Virginia, occurred,
where the illegal search is illus- Worrell, approval negligence court cited with the members’ employees as even permitting recovery though cases other intra-family from states protected immunities *9 against employers family employees members based on from to their families.