*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). 91 S.Ct. 1999 See, States, g., e. Williams v. United finding remedy directly a federal un- (1955), vacat- appropriate der the fourth amendment be an ing, (9 1954); 215 F.2d 800 Cir. James v. United judicial power, Mr. exercise of Justice Harlan States, (4 1972); 467 F.2d 832 Cir. Yates v. cites need as one reason the for fourth amend- States, (4 1966); United 365 F.2d Cir. Jen- compensable according ment violations to “be nings v. United Clearly law.” uniform rules of federal 1961). necessary component uniformity to such is a disclosed an intent by Congress liability intended on the scope 2680(h).7 proviso to enacting the 1974 for fourth amendment viola- irrespective any tions individual defenses amendment plain language of the might that be asserted. We think not. intent congressional as to offers no clue ment’s its by Bivens. The as cability that state-created by federal case. confines Congress applicability the 1974 amendment regard to the . placement liability. is limited to suits as “a . history, FTCA,8 itself, intentional statutory language, counterpart Cong. & Admin.News at S.Rep. Indeed, one the federal suggests that however, makes clear the waiver within scope might No. reading only the torts alleging certain of the was viewed to the Bivens officers. The even tort committed its question govern- created as well appli- panied that genty [sic], in that counterpart Government ages sovereign immunity so as to make the added). We think alleged to purpose strongly suggests an intent individual Government officials Cong. & S.Rep. which that case Senate the amendment “should be viewed as a for the same the amendment No. .Admin.News Report No. have to the Bivens case and its independently occurred in Bivens imposes liability it waives the defense of that type supra, 93-588, this at 2791 of conduct ^[1974] liable in dam- explanation 2680(h), which accom- involved).” (emphasis U.S.Code upon the (and that states to al- liability only low vicarious in those cases legislative history makes clear While where individual would lie under government may be sued concluded, Bivens. The district court how- agents, committed for Bivens torts ever, expression purpose history is not as clear with outweighed by other legisla- evidence vicari- scope intended history tive indicating expansive a more It was the district court’s liability.9 ous legislative history governmental liability. view that on balance the view of *6 ment,” Nelms, solely statutory supra, Laird v. this case as one of U.S. at 7. We view 1902; interpretation. recognize force While we the 92 S.Ct. at see also Dalehite v. United policy arguments in favor of the district court’s 150-52, liability, F.Supp. expanded at (3) of (1953); that the defenses of they largely our decision. If are irrelevant privilege and reasonable belief constitute a slate, policy writing we were on a clean the immunity gener- rather than an and that under arguments parties would receive our of both respondeat superior principal al doctrine a has however, attention; Congress careful where agent privilege a defense if his had a which he by spoken, has as it has here means of the 1974 properly principal’s exercised in his behalf. 2680(h), guided we must be (2d), Agency, 217(a)(iii) (1958). Restatement by policy judgments by our but those own arguments supports While each of these the Congress. of reach, ground result we we do not our decision Despite on these rationale. the amendment’s government argued has both in the court 8. The FTCA, placement in we are convinced that the preexisting us that the struc- below and before sovereign immunity -type waiver of to Bivens arising the thereun- ture of FTCA and case generis is sui and therefore the struc- government support view that the der FTCA, prior construing ture of cases other the defenses of its entitled to assert general principles visions of FTCA or of re- Specifically, plaintiff’s the defeat government claim. spondeat superior interpreting 1346(b) the 1974 argued (1) that § has amendment, combination, singly only or in does not liable for tortious makes the question answer the before us. tor- and that in the Bivens context no conduct conduct occurs unless the constitutional tious is committed either in bad faith or legislative violation 9. For a detailed account of the histo belief; (2) impo- that the ry amendment, with an unreasonable surrounding enactment of the regard without to the individu- Gitenstein, Verkuil, sition Boger see J. M. P. The impo- is tantamount to the al motives or beliefs Federal Tort Claims Act Intentional Torts liability, which would contra- sition of absolute Interpretive Analysis, An Amendment: 54 N.C. holding Supreme that vene two Court decisions L.Rev. 505-17 see also Norton v. support imposition “the the FTCA will not Turner, supra, F.Supp. at 148 n.11. any upon sort the Govern- strict First, concluded that conclusion that Congress district court the intended Report re- the overall tenor of the Senate without to individ- an effective providing flects a concern with ual recognize defenses. While we that both whose fourth amend- remedy to individuals of these support conclusion, documents this As have been violated. we rights we they do not think that are entitled to however, that report, we think it read that weight accorded them by the district providing a an effective shows concern court.11 What guide must us is not Senator victims of Federal remedy “for innocent Percy’s intent nor the intent of the commit- outrageous remembered conduct on the law enforcement abuses.” islation in the raids where News both in Bivens and Collinsville raids —intentional cerned. officers —about stresses, gaged at 2792 in what It it was, is the that behavior.10 government officials had en- (emphasis wake may fairly be described as we part Congress type think, of law the Collinsville Congress added). the victims of the Cong. & Admin. As conduct passed S.Rep. remedy enforcement and abusive It was con- must alleged report drug leg- be explanatory remarks remedy against supports FTCA the clear language found in tee Report We vens.12 staff, contrary, therefore Senate No. the individual officer under Bi- inor but rather the intent of inextricably Report government’s position remarks give the staff memorandum. To fair reading of most itself contains none of which tied weight the committee. Senator represents to Senate Congress. that the remedy Percy’s Report under wrongs Congress egregious more that V. sovereign immunity.

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). 40 L.Ed.2d 90 pleas belief in the faith and reasonable simple legality defense or conduct as a of their Worrell, trated Worrell v. concepts in Scheuer v. ly explained 174 Va. Rhodes, (1939).2 416 U.S. at S.Ct. S.E.2d at 1689: There is a fundamental difference be- officials, governors, may-

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.