William J. Bauers, Jr. v. Herbert T. Heisel, Jr

BIGGS, Circuit Judge

(dissenting).

There are two issues presented by this appeal: first, is the défendant, County Prosecutor Heisel, immune from suit brought under the Third Civil Rights Act, 42 U.S.C. § 1983 , R.S. § 1979, and, second does the complaint state a cause of action against him?

To deal with the second question first, I had thought that this was answered adequately and in the plaintiff-appellant’s favor by our decisions in Basista v. Weir, 340 F.2d 74 (1965), and Anderson v. Haas, 341 F.2d 497 (1965). In the Anderson case Chief Judge Staley concluded, id. at 502, that the contention of the police officers that they acted in good faith and without malice could be no defense in a civil action brought under Section 1983. But surely and very finally the scope of the Civil Rights Acts has been defined in United States v. Price, 86 S.Ct. 1152 (1966), and the opinion of the Supreme Court in Price certainly is not in accord with the opinion of this court and requires reversal of this tribunal’s decision unless Prosecutor Heisel be found to be immune from a suit such as that at bar. By its Price decision the Supreme Court has revitalized the “Reconstruction” Civil Rights Acts.

In respect to the immunity issue it was pointed out in Picking v. Pennsylvania R. Co., 151 F.2d 240, 250 (3 Cir. 1945), now expressly overruled by this court, that the phrase “every person” of Section 1983 and the phrase “any person” of Section 1 of the Third Civil Rights Act, Act of April 20, 1871, 1 were purposely made as broad in definition as was possible.

On reading the legislative history of the Civil Rights Acts I find it is impossible to concludé that Congress created any barrier of state office, other than legislative, behind which federal power, con *593 ferred by the Acts, was not intended to reach. 2 The legislative history of the Third Civil Rights Act alone makes this plain. 3 The statements of Senator Pool, Appendix to the Price opinion, 86 S.Ct. at 1163 , et seg., directed to the Enforcement Act of 1870, 16 Stat. 140 , and the Enforcement Act itself, are illuminating. Mr. Justice Fortas points out in his opinion, id. 86 S.Ct. at 1161 , that the Enforcement Act “included a reenactment of a provision of the Civil Rights Act of 1866 which is now [18 U.S.C.] § 242”. I think that all of the Civil Rights Acts must be deemed to have been based on the same congressional considerations and that the rights secured and protected by the Acts are the same in scope whether they are to be enforced by criminal or civil sanctions. I conclude, therefore, that Senator Pool’s statement in respect to the Enforcement Act are pertinent in construing the statute sub judice.

Senator Pool, after referring briefly but emphatically to the conditions which had brought Congress to the enactment of the First Civil Rights Act, 14 Stat. 27 , stated: “There is no legislation that could reach a State to prevent its passing a law [in denigration of the First Civil Rights Act]. It [federal legislation] can only reach the individual citizens of the State in. the enforcement of law. You have, therefore, in any appropriate legislation, to act on the citizen, not on the State. If you pass an act by which you make it an indictable offense for an officer to execute any law of the State by which he trespasses upon any of these rights of the citizen it operates upon him as a citizen, and not as an officer.”

The last sentence quote, in my view, indicates that Congress intended the Civil Rights Acts to be applicable to every person as citizen and not as state officer. An official action offending the Acts must be deemed to have been committed by a citizen qua citizen. 4 Under such a view there can be no immunity by virtue of state office, legislative office excepted. The view expressed in. the preceding paragraph seems to be imaccord with the pronouncement of Mr. Justice Fortas in the Price opinion, id. 86 S.Ct. at 1163 , as follows: “He [Senator Pool] acknowledged that the States as such were beyond the- reach of the punitive process, and that legislation must therefore operate upon individuals. He made it clear that ‘It matters not whether these individuals be officers or whether they are acting upon their own responsibility.’ We find no evidence whatever that Senator Pool intended that § 241 should not cover violations of Fourteenth Amendment rights, or that it should not include State action or actions by state officials.” At an earlier point in respect to the reach of 18 U.S.C.A. § 241 , Mr. Justice Fortas stated: “We find no basis whatsoever for a judgment of Solomon which would give to the statute less than its words command.” I can entertain no doubt that prosecutors are “commanded” by “words”.

The majority opinion contains the interesting suggestion based upon Article IV, Section 4, of the Constitution, that the Acts would be unconstitutional if the *594 construction put upon them in this dissenting opinion is correct. The theory espoused by the majority is that immunity is a basic right of the judiciary under the doctrine of separation of powers, and that any attempt by Congress to limit or abolish that immunity would unconstitutionally encroach on the judicial branches of our state governments so that a republican form of government would no longer exist. I agree that the principle of judicial immunity is part of the Anglo-American law. It was created by judicial decisions for policy reasons. See, for example, Yaselli v. Goff, 12 F.2d 396 (2 Cir. 1926). But the principle of judicial immunity, judge made, cannot raise a constitutional issue as the majority asserts. A principle established by decisional law can be overturned by an act of Congress or of a legislature. But aside from the foregoing, we are concerned here with immunity of a prosecutor, not with that of a judge, though the majority opinion by way of dicta seems to extend immunity not only to judges but also to police officers, albeit with a jurisdictional qualification as to the latter which I believe is inoperable or nonexistent. That police officers do not have immunity in civil rights suits was decided by Monroe v. Pape, 365 U.S. 167, 184-185 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961).

Assuming .that an issue of constitutionality is reached here it should be decided only upon a full record and only if necessary. See Villa v. Van Schaick, 299 U.S. 152, 155-156 , 57 S.Ct. 128 , 81 L.Ed. 91 (1936), and Honeyman v. Hanan, 300 U.S. 14, 25-26 , 57 S.Ct. 350 , 81 L.Ed. 476 (1937). The fact is that the present decision emasculates the Civil Rights Acts in the Third Circuit. This is unfortunate for there is need for them in this Circuit as elsewhere.

For these reasons, I must respectfully dissent.

. Act of April 20, 1871, 17 Stat. 13 .

. I think that this court’s reliance on Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 (1951), is misplaced. In the cited case, the Supreme Court was dealing with the liability of members of the California Legislature under the Civil Rights Acts embraced by 8 U.S.C. §§ 43 and 47(3), and not with the - liability of state law enforcement officers. Compare Eastern R. R. Presidents Conf. v. Noerr Motors, 365 U.S. 127 , 81 S.Ct. 523 , 5 L.Ed.2d 464 (1961), in which the Supreme Court adjudicated rights of parties under §§ 1 and 2 of the Sherman Act and § 4 of the Clayton Act.

. For the legislative history of the Third Civil Rights Act, see The Congressional Globe, 42nd Congress, 1871, First Session, Part 1, report on H.R. No. 320, p. 317 and debate, pp. 385, 395, 461 and 495, and Part 2, Appendix, pp. 86, 113, 209 and 216-217.

. With the exception of a citizen who is a legislative officer in accordance with the principles enunciated in Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 (1951), as stated previously in the body of this opinion.