*1 papers dis- consideration After foregoing para- pursuant tributed appropriate graph enter an court will
order. filing pursuant to briefs time for Appellate Rules of the Federal
Rule 31 extended or not be tolled shall Procedure filing dismiss motion
affirm.
RULE UNMERITORIOUS AND
FRIVOLOUS
APPEALS hearing any interlocu- upon the If tory of a review a result motion appear court it shall Rule entirely appeal frivolous and merit, appeal be dis- will without contemplated missed the notice 18 and 19. Rules BIVENS, Plaintiff-Appellant,
Webster
SIX UNKNOWN NAMED AGENTS OF
the FEDERAL BUREAU OF NAR COTICS, Defendants-Appellees.
No. Docket 32537. Appeals
United States Court of
Second Circuit.
Argued Jan. 16, 1969. April 10,
Decided *2 Judge:
LUMBARD, Chief Plaintiff hold asks us to Amendment, guarantees people to remain secure against unreasonable and searches sei- zures, creates federal cause damages against agents who right. have violated District Court for the Eastern District of New complaint York for lack dismissed subject jurisdiction matter under 28 alternatively for U.S.C. and fail- ure to state a claim which relief granted. can be We hold that the a basis for a federal does arising damages cause of out of an unreasonable search and seizure. dismissing The order of district court complaint is affirmed. Plaintiff in his com- Webster Bivens alleges plaint, pro se, fed- filed that six agents apartment on entered his eral November 1965 without a search conducting a warrant. After arrest agents apartment ar- plaintiff rested for a violation of the placed him in narcotics laws and mana- presence cles of his wife are The search and arrest children. alleged “in an conducted to have been Plaintiff unreasonable manner.” was Building in the Federal taken to Court Brooklyn, then to the Federal Nar- interrogated, Bureau, cotic he was where subjected photographed, fingerprinted, person, and booked. to search of his complaint appears filed ultimately dismissed events United States Commissioner. The Stephen Grant, City, A. New York surrounding and arrest the search appellant. by plaintiff him caused to have said Stephen Felson, Dept, Justice, R. embarrassment, humiliation, “great Washington, Jr., (Edwin Weisl, D. L. C. suffering,” and will continue mental Atty. Gen., Zener, Dept, Asst. Robert V. judgment prays Plaintiff so. Justice, Atty. Joseph Hoey, P. U. S. agents $15,000 each York, for Eastern Dist. of New on the damages actions. for their unlawful brief), appellees. court dismissed The district LUMBARD, Judge, Before Chief ground complaint partly upon that it WATERMAN, MEDINA Circuit Judges. jurisdiction U.S.C. § lacked negative 1331,1 grants district we have occasion to immunity arise address the actions which issue. over Constitution, laws, trea- under “the The view that author But under ties United States.” ity prerequisite ais for a cause Bell v. damages, though of action for even *3 the clear that it is 939 wrong complained of is the violation jurisdiction under district court had adopted a constitutional has been this com- 1331 to whether determine § by all of the examined upon unambiguously the plaint, founded question recently. this See States Amendment, good fed- states Faneca, 872, (5th v. 332 F.2d Cir. 875 v. eral See cause of action. Wheeldin 1964), 971, cert. denied 380 U.S. Wheeler, 647, 649, 83 S.Ct. 373 1327, (1965); 14 L.Ed.2d 268 Johnston 1441, (1963). The dis- 10 L.Ed.2d 605 Earle, (9th 793, v. F.2d 245 796-797 validly court, alternative, did trict 1957); Zuieback, Cir. Supp. 651, F. Koch 194 v. disposition on rest its the merits (S.D.Cal.1961), 656 316 aff’d relief failure to claim for which (9th 1963); F.2d 1 v. Pal Cir. Garfield granted. ground is on this can be mieri, F.Supp. (E.D.N.Y. 193 586 that we affirm. 1960), per curiam, F.2d 821 290 aff'd July 12, the dis- 1968 we reversed On (2d Cir.), denied cert. petitioner’s motion denial of trict court’s (1961); 82 Hood, L.Ed.2d 30 Bell v. appeal pauperis, in for leave to forma F.Supp. (S.D.Cal.1947). granted petitioner’s motion and we opin It must be said that few of these assignment Stephen A. the counsel. given ions have extensive consideration Grant, represented petitioner Esq., has problem, only and that the district appeal. He has thanks of on this the opinion supra, court in Bell v. does effec- this court conscientious and for the inso the context of claim founded discharged he has tive manner which However, we assigned duties counsel. his as agree reasoning not of this with decision, latter questions which the district court There are two distinct First, appeal. impliedly must adopted by quoting involved in this we below an Amend determine whether passage extensive in its memorandum. dam ment authorizes a suit In Bell v. Hood the district court drew ages, by caused an unreasonable “governmental” a distinction between brought seizure, under prohibited the Fourth Amend- general jurisdiction question “private” ment and nature of does, conferred question If § unreasonable com- agents search and seizure whether federal arises acting capacity, but mitted the defendant their official rea- officers. The court of their lawful and constitu violation suit. soned that authority, once the officers exceeded immune from tional are Biddle, (2d imposed government Gregoire limits on F.2d v. longer they were cert. denied 339 U.S. Cir. acting governmental authority (1950); cf. but 555-557, only individuals, Ray, rather and that as v. Pierson they under be sued therefore could L.Ed.2d 288 question the Amendment. we first answer Since any seeking complaint must relief “under bases tiff advances several 1. The they Congress.” apart In this Act of case but from § Only inapposite. not extended seeks relief which is action taken federal, Congress, Act of for action U.S.O. reached law is color state, 1343(3). To officials. 28 U.S.O. plain- 1343(4) U.S.O. § within 28 come age accept trespass. this ration Entick v. cannot Car We rington, 19 act ale. ing fact that the officers were Howell’s Trials 1029 State (1765); Eng. Money, see of the Fourth Amend Huckle violation Rep. (1763); upon governmental Wood, ment’s restraints Wilkes v. plain Eng.Rep. cases, that fact These action does belie officials, evolved, they acting government they the common were law doctrine private capacity. and not in It was were well known the time the Fourth adopted. Boyd from the federal v. Unit authority, apparent ed drew have been reasonable citizens could not expected From plaintiff argues to resist their unconstitutional fact draft law, ers of the Action intrusion. under color Amendment must have intend power posi which tion, of official ed that utilizes *4 scope the of unreasonable
must be deemed within
search and seizure could be
through
the
enforced
Fourth Amendment.
the courts
the medi
private damage
um of
actions.
If, then,
precedents
find
do not
the
we
conclusive,
plaintiff
note
we also
acceptance
But
proposition
of this
precedents
direct-
that there
at all
are
hardly leads to the conclusion that
the
ly in his
case
Plaintiff can cite no
favor.
private damage action the drafters had
sustaining
of action
a federal cause
wholly
in mind was a
new federal cause
claiming
the
a violation of
directly
of action founded
on the Fourth
upon
which was
based
likely
more
seems
upon
in-
statute or
some other basis
contemplated
the medium
the
was
same
dependent of
the Amendment
itself.
employed
Carrington,
as that
in Entick v.
Cabell,
closest
is
The
he can come West v.
e.,
supra, i.
the
common law
153 U.S.
643 trespass,
administered in our
upon
but there
suit
the
the
was
system by the state
The
courts.
Amend
statutory
defendant,
bond of the
a Unit- ment
efficacy
serves to
the
increase
marshal;
ed
the
the
States
violation of
trespass remedy
preventing
fed
requirement
con-
Amendment’s
jus
eral law enforcement
from
officers
cerning
sufficiency of
arrest war-
tifying
as authorized
rant
held to
a breach of
constitute
government.
national
Cf. Wheeldin v.
there
the bond. Absent the bond
would Wheeler,
647, 652,
83 S.Ct.
have been
on
no cause
action based
(1963);
Entick v. Car
the naked Amendment alone.
rington, 19 Howell’s State Trials 1029
facing
question
quoted
Boyd
we
in
Thus
are
v. United
impression
first
the issue left'
6 S.Ct.
(1886).
initial
resolution
lower federal
Supreme Court in Bell v.
resulting situation,
The
in which
Hood: whether a federal cause
provision
in
is enforced
damages arising
out of an unconsti-
courts,
the state
under remedies created
tutional search and
rest
seizure can
law,
all
is
uncommon
the Fourth
Amendment in
absence
system.
under our
“In the scheme of the
*
*
statutory
*
suit
authorization for the
Constitution
[the
courts]
specific
general grant
more
than the
guarantors
primary
are the
of constitu-
question jurisdiction by
federal
28 U.S.C.
rights,
many
tional
may
and in
cases
1331.
&
ultimate ones.” Hart
Wechsler,
history
of the Fourth Amendment
The Federal
Courts
provides
System
Indeed,
inquiry,
our
no sure answer to
Federal
Congress
suggestive.
grant
but
find it
The Amend-
did not
we
to the federal
prohibition against
general
extending
jurisdiction
ment’s
unreasonable
courts a
origin
“arising
had
search and seizure
its
cases
under the Constitution”
English
§1,
several
cases which were dam-
1875. Act of March
until
Preemption,
eral
Constitutional
natural
Courts:
have been
It would
Stat.
rely on state reme-
Colum.L.Rev.
for the Framers
dies for
examples of federal common
These
provisions relevant
point,
not in
asks
for what
recognition
case in view of
preempt
to do
state law but
us
not to
the antecedent
common law of
alleged
supplement
in
it because of its
trespass.
for a
obtain redress
redressing
violations of
effectiveness
More relevant
Fourth Amendment.
original
But,
distribu-
whatever
this context are cases
responsibility
the state
between
tion
implied
courts have
order
courts,
do have
and federal
we now
duty
effectuate a
declared
general
con-
question
Congress.
Borak,
J. I.
Case Co.
ju-
grants ferred
1331. General
1555, 12 L.Ed.2d
occa-
on
used
rare
risdiction
been
(1964);
Nash
Louisville &
Steele v.
re-
or remedies
rules
sions to formulate
192, 207,
Co.,
ville R.
volving
around an established
While the
explicit
au-
absent
even
Supreme Court founded
these
of federal
thorization for the evolution
regarded
necessary
upon what it
as the
ques-
law in these areas.
common
implication
statutory scheme, there
similarly ap-
whether
before us
explicit
was no
authorization
them.
*5
implication of
propriate
occasion for
a
In
we have outlined
similar context
remedy
presented
this
a federal
approach
this
to these situations:
complaint.
right
“Implication
private
ac
of
of
precedent
plaintiff
One
cited
may
explicit
suggested by
stat
tion
be
implication
Trust
such an
is Clearfield
utory
of
conduct
condemnation
certain
363,
63
318 U.S.
Co. v.
general grant
of
to
and a
573,
(1943), where
L.Ed.
S.Ct.
87
838
enforce
created
the stat
liabilities
of the need
acted because
Court
**
*
ute
or from
considera
governing
trans
uniform national rule
protection intended
tions as the
paper
commercial
of
legislature
of
ineffectiveness
Similar considerations
United States.
*
**
fully
existing
to
justified
preempting the
have
decisions
Realty
achieve that end.” Colonial
application
laws,
adopting
of state
178,
Co.,
Corp.
F.2d
v. Bache &
358
rule
common law
uniform
of federal
denied,
(2d Cir.),
U.S.
cert.
385
admiralty,
181
stead,
the fields of
40,
(1966).
817,
56
L.Ed.2d
Hawn,
87 S.Ct.
17
g.,
Talbot,
Pope
see
Inc. v.
e.
&
202,
406,
143
L.Ed.
346
74 S.Ct.
98
U.S.
Ivy Broadcasting
American
Cf.
Co. v.
regulation
interstate com
of
486,
Co.,
Tel.
490-491
& Tel.
391 F.2d
generally
Lime &
merce.
Florida
See
(2d
1968);
Express Inc.
Cir.
McFaddin
Paul,
Growers,
U.S.
373
Inc. v.
Avocado
Adley
424,
Corp.,
F.2d
425-426
v.
346
1210,
132, 141-152,
10 L.Ed.2d
S.Ct.
83
(2d
1965),
U.S.
Cir.
cert. denied 382
Supreme
has also
248
Court
643,
1026, 86
723
government
mere “form
construction
a dam
it a
edies as to render
655,
643,
repeated
plain
Ohio,
words,”
caused
onto the
Mapp
overflows
v.
1684,
found
con
tiff’s land which the court
L.Ed.2d
taking
property
appropriate
occasion for
stitute a
that an
public
meaning
&Hart
use within
reached. See
has been
initiative
may
Wechsler, supra, 313-316.
Fifth
It
doubted
whether
just
could have sued
is an
clear that there
is now
Act,
compensation absent the Tucker
implied injunctive remedy for threatened
1491,
1346(a) (2),
U.S.C. §§
continuing
constitutional violations.
grants to the district courts and the
4,
n.
Bell
684 &
See
v.
jurisdiction over
of Claims
claims
Court
(1946); Lar
S.Ct.
government
on the
“founded
Foreign
son v.
Commerce
Domestic
Constitution,”
implied
on an
contract.
Corp.,
U.S.
jurisdictional
given
general
But
(1949);
Parte
uation absence total law than States Constitution. to the rule of the Court injunctive power. Thus to con seemed cases both Court exclusionary necessar- rule as viewed the only in Bell question addressed sider right free from ily implied be in the to U.S. v. seizure, since search and unreasonable fell (1946) the suits — whether remedy remained this ju question grant within only “form of words.” virtue the federal risdiction to 655, 81 S.Ct. applica involving the construction Swafford Constitution. the rem believe We Templeton, 185 U.S. v. damage edy of a civil (1902). The 783, 46 to said also can be officials called Court’s attention was on implicit damage implying novelty of ground is essential in the ab from a vindication of effective specific foundation sence of a and sei from unreasonable free suit, thus cases are for persuasive damage general, zure. In legitimacy authority for the past constitution officials individual noteworthy that It is of such course. appear be much al would violations damage author claims were fact to the maintenance less essential Act, Rights by a ized section Civil prevent law than are remedies rule of the court and that now U.S.C. § continuing constitutional threatened precedent a criminal case de cited as a itself, government transgressions Parte Yar under that Ex cided Act. prevent from bene brough, L. fiting constitutional violation. from a involving Ed. Later cases governmental between The distinction actions for civil denial by the dis drawn and individual action explicitly on vote also rested that stat validity Hood has trict court in Bell v. See, g., Harris, Giles ute. e. v. primary that the thrust sense 475, 484-485, Rights citizens is to shield the Bill of (citing Wiley Swafford). government. from certain actions Thus decisions have rested two implication although similar, implicit, on a basis. naturally from shield follows Herndon, But see Nixon right; *7 nat of less the declaration a far S.Ct. shield into is the conversion of this ural (suggesting basis). the common as a law offi a sword directed individual Wiley In contrast with and Swafford cials. specific statutory possible there is no implica- say not that the While we do basis suit. And of the failure damage action can never Congress such a provide to such a has not basis of a con- essential vindication been the result inattention to the significant it stitutional is problem of Fourth Amendment violations implication of clear instance of the such agents, by federal or the issue of remedy a can found with reference to liability govern- of the and right. possible any Two ment officials tortious conduct. Con- gress Wiley Sinkler, exceptions has it U.S. made a federal crime to exe- unnecessary cute and a search warrant with S.Ct. Templeton, severity willfully U.S. Swafford v. or exceed au- one’s thority 2234; executing it, In 18 U.S.C. § procure both cases the Court sustained causes the issuance of a search war- damages against maliciously probable rant state officials and without plaintiffs cause, having deprived 2235; and, based on in certain U.S.C. § circumstances, occupied pri- of the to search an vote in federal elections warrant, building will constitute of the Fourth violations vate accomplished by govern of the liabil- Amendment if the area In 2236. U.S.C. agents yet may the torts ment not come ity within United States Act, scope Claims agents the Tort of state actions. have its we pre- specifically 347, 353, Katz v. which 28 U.S.C. § arrest,” liability “false 19 L.Ed.2d based cludes performance open Congress process,” or is of course also to “abuse categories function, discretionary determine that of a there is a similar need encompass may damage a search for a federal well action to which and with- violations of made without a warrant the Fourth Amendment arrest spe- probable wiretapping Because do not cause. involve out or surrounding eavesdropping. far, despite problems Thus cial Congress legislation Fourteenth we cited above against per- covering damage closely matters, related authorized Con gress acting has not of state law made under color such a sons determina tion. not apropriate “secured Consti- We do believe violate for this court to fill the tution.” 42 U.S.C. hiatus left in this by Congress, area see Wheeldin v. Wheel Only year, Crime Omnibus last er, 10 L. Act of Control and Safe Streets Ed.2d 605 since we find that the 197, Congress rec- P.L. 82 Stat. damage absence of a federal action has ognized the creation the need for illusory rendered to remain damage remedy for an unauthor- free from unreasonable search and sei interception private communica- ized zure in view of the other remedies avail wiretapping means as tions such able for its enforcement. eavesdropping de- use of electronic Act, 802 of vices. Section existing for an (Supp. provides that C.A. § may or seizure unconstitutional person unauthor- victimized totally enforce effective interception ized is entitled to recover for Fourth ment scheme damages rate than actual at a less substantially rights, vindicate but day day interception, per each $100 Amend protected the interests greater, if or a total of this is $1000 exclusionary rule of Weeks ment. punitive damages, also recover and state Mwpp prevents the federal together attorney’s fee reasonable any prose obtaining governments from litigation By providing costs. other advantage by of uncon virtue cutorial Congress mandatory recovery minimum alleged in conduct such as stitutional danger damage rem- avoids complaint, thus acts as plaintiff’s edy illusory will become because of the Injunctive conduct. to this deterrent possible juries to return reluctance if he can relief is available to judgments more than trivial repeated prove he is threatened Congress enforcement officers. Yet also continuing constitu his invasions *8 provides protection to some these officers Finally, privacy. the state tional of good declaring proof of that a faith trespass damage and false for order, reliance on a court or on an order admittedly lim imprisonment, of while emergency of authorization issued a scope, their limited of ited value because prosecuting attorney under 18 U.S.C.A. Colorado, see Wolf v. 2518(7) (Supp. complete is a § (1949) damage1 defense to action. a dissenting), may (Murphy, J. Congress spe- found that there was a damage recovery if he plaintiff with a legislation, and civil cial need for a deliberate, not a a can establish damage remedy, to secure the of merely technical, violation against surrepti- privacy of individuals invasions, often tious invasions which alleges proven, may problem the facts he state The most basic all, remedies, defeated the defendants unless is the understandable after they successfully personal jury to substantiate judge of both reluctance liability. my for It is immunities from civil officers penalize law thought increasingly technical of 28 that virtue U.S.C. our violations of jurispru- 1331 the courts can enter- body federal also § judges irrespective unlikely tain this cause of federal action is that It dence. specifically any statute juries reluctant whether a au- less exists would be against thorizing counter- a federal suit respect federal than their in this damages allegedly dis- occasioned officers reluctance should
parts. But unnecessarily in- severe acts. appear or arrest Here a when they apartment any genuinely invaded an volving malicious placed warrant in manacles police is involved. constitutionally while conducted a damage recognition Judicial impermissible apartment. search of the action under See U.S.C. 2234 and 18 U.S.C. carry responsibility with it would 2236. But see 26 since U.S.C. § body developing federal common agents. the defendants here are narcotics questions governing as the law damage recoverable, types majority point types out that the exclu- Ohio, sionary Mapp injuries compensable, the extent rule of immunity as is available which official degree federally promulgated defense, intent and that fed- and the evil enjoin necessary may officers eral courts federal is state meritorious enjoined, which, if 2520 from future acts action. 18 U.S.C.A. § cause of provisions 1969) (statutory (Supp. violate the civil action would fed- alia). A wiretapping, inter eral constitution. seems evident unauthorized begin me, therefore, logically, that, to travel should federal court if we should long road un- to ensure down this and uncertain wish individual full- not, persuaded, protection rights, that est less is we are his constitutional as journey to insure an action is. essential federal officers damages right. trespassory vitality These should maintain- closely policy decisions concern- able federal courts. balanced ing enforce the manner point important Nevertheless, right normally left should be some- lie recognition a suit will that Congress; the civil created preferable ; and, if it seems where Act, supra, demon- Streets the Safe has been say citizen that now to when Congress respond when will strates damaged by viola- or malicious a wilful damage the need a federal by federal constitution of the federal man- enforcement officials rely upon his “state- must officers he us ifest. Plaintiff has not convinced for his redress and created” depart the federal courts should only in the pursue vindication principle from this sound courts, prepared concur I am restraint. holding. the district court dis- The order of here an- the doctrine Even missing complaint is affirmed. nounced, sued federal officer course, op- may, his state court appropriate tion, remove the case to (concur- Judge WATERMAN, Circuit 1442, and court under 28 U.S.C. § *9 ring) : thereby adjudication plaintiff’s ac- holding that I concur upon his “state-created” tion based action, holding, would, today’s “state- despite albeit a has a cause of our adjudicated which, action, federal court. if created” cause