arguing, in a post Butz decision, that IRS agents should be entitled to only a qualified immunity defense against a common law tort action
How later courts described this case
- arguing, in a post Butz decision, that IRS agents should be entitled to only a qualified immunity defense against a common law tort action
- tortious interference with business, intentional infliction of mental and physical distress
- tortious interference with business and intentional infliction of mental distress.
- tortious interference with business
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
dissenting.
Rather than insulate the defendant IRS agents from all civil liability at common law under the doctrine of absolute immunity, I would reverse and remand to the District Court with instructions to apply to the conduct of the agents the standard of qualified immunity enunciated by the Supreme Court last term in Butz v. Economou, -U.S.-, 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978). Qualified immunity is a standard based on reasonableness and good faith. Absolute immunity, as applied in this case, vests in the officer a discretion to commit common law and statutory wrongs free from judicial review.
Though the Court’s holding in Economou is clearly limited to constitutional claims as distinguished from state tort claims ( 98 S.Ct. 2905 n.22, the reasoning of the opinion leads me to the conclusion that the choice between absolute immunity and qualified immunity for public officers should turn on the role and function of the official and not on whether the alleged wrong sounds in tort or under the Constitution. Id. at 2912-15 . When framing a complaint against a public officer, an assault, a trespass, a false imprisonment or false arrest, a libel, as well as various invasions of privacy and interferences with contractual relationships, can be characterized just as easily as a constitutional wrong as a tort. Making immunity turn on a distinction between common law torts and constitutional wrongs simply, encourages pleaders to wrap familiar common law concepts in a new vernacular of constitutional deprivation.
An IRS agent should not be entitled to absolute immunity when he break's into a *787 home without a warrant and carries away private papers — whether the pleader calls the wrong a Fourth Amendment violation or a trespass vi et armis or de bonis asportatis. Compare Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), with Entick v. Carrington and Three Others, Messengers in Ordinary to the King, 95 Eng.Rep. 807, 19 Howell State Trials 1030 (1765).
From the time of Bracton in the thirteenth century, the alleged wrongs of “ordinary” public officers have been reviewable in tort by courts of law under various common law writs. II Thorne, Bracton On The Laws and Customs of England 348 (1968). Such officers are not entitled to an unre-viewable discretion to commit wrongs, either at common law or under the Constitution. Their conduct should be judged by a standard of reasonableness and good faith. In most instances where the officer is acting in the line of duty in accordance with statutory or administrative authority, the qualified immunity will protect him. The qualified immunity will protect the victim, however, in those instances when the officer, acting dishonestly or out of malice, abuses his authority.