stating that a clearly established right is generally defined as a right so thoroughly developed, and consistently recognized under the law of the jurisdiction, as to be “indisputable” and “unquestioned”
How later courts described this case
- stating that a clearly established right is generally defined as a right so thoroughly developed, and consistently recognized under the law of the jurisdiction, as to be “indisputable” and “unquestioned”
- district court denied protective order and dismissed the complaint for plaintiffs failure to submit to depositions; the court of appeals affirmed, holding that defendant was entitled under Harlow to summary judgment as a matter of law on the issue of qualified immunity and finding it unnecessary to consider discovery issues
- holding no clearly established warrant requirement for domestic national security wiretaps existed at relevant time
- declining to define what constitutes well-established law because the illegality of the conduct at issue "was not 'clearly established' by any reasonable definition of the phrase"
Written by the judges who cited it.
The opinion
*174 SWYGERT, Senior Circuit Judge,
dissenting:
I would reverse the district court’s dismissal and direct entry of judgment for the plaintiffs. The issue is whether John N. Mitchell, under whose direction the FBI installed warrantless electronic wiretaps in the Jewish Defense League headquarters between October 1970 and July 3, 1971, is entitled to immunity from liability for his violation of plaintiffs’ right to be free from unreasonable searches and seizures. There is no question that Mitchell violated those rights. Zweibon v. Mitchell, 516 F.2d 594 (D.C.Cir.1975) (en banc) (Zweibon I), cert. denied, 425 U.S. 944 , 96 S.Ct. 1685 , 48 L.Ed.2d 187 (1976). The only question is whether the constitutional prohibition of warrantless eavesdropping in these circumstances was “clearly established” at the time the wiretaps were ordered, under the standard established by Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). The Court there held
that Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Id. at 818 , 102 S.Ct. at 2738 .
Mitchell has not met his burden of establishing an immunity defense under the Harlow standard. At the time Mitchell ordered the warrantless wiretaps at issue, United States v. Katz, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), had established
that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few exceptions.
Id. at 357 , 88 S.Ct. at 514 (footnotes omitted).
Because the Supreme Court had expressly reserved ruling on national security wiretaps in Katz , the majority concludes that no clearly established warrant or reasonableness requirements existed at the time Mitchell authorized the surveillance. Although Katz did not expressly decide whether the requirements of the fourth amendment could be satisfied in a situation involving the national security if “safeguards” short of a magistrate’s authorization were provided, id. at 358 n. 23, 88 S.Ct. at 515 n. 23; see also id. at 364 , 88 S.Ct. at 518 (White, J., concurring), the majority’s reliance on these reservations ignores the Court’s broad holding that long-established *175 fourth amendment protections apply to electronic surveillance, as to other forms of intrusions, subject only to well-defined exceptions such as searches incident to arrest, searches made in hot pursuit, and searches subject to consent. Katz established no exception to this general rule of fourth amendment applicability for situations involving national security; indeed, the Court emphasized that “[i]t is difficult to imagine how any of those [established] exceptions could apply to the sort of search and seizure involved in this case.” Id. at 357 , 88 S.Ct. at 514 . The Court’s footnote and Justice White’s comment did not create a national security exception, but rather declined to state whether such an exception might be created in the future. It was the exception, rather than the rule, that was not clearly established in 1970-1971. The majority’s analysis anomalously transforms the lack of an exception into the lack of a rule.
Subsequent cases demonstrate the presumptive breadth of the Katz rule. In United States v. United States District Court, 407 U.S. 297, 314-21 , 92 S.Ct. 2125, 2135-38 , 32 L.Ed.2d 752 (1972) (Keith), the Supreme court, relying on the general language of Katz , held that judicial approval was required prior to electronic surveillance in domestic national security cases. Similarly, in Zweibon I, supra, a plurality of this court noted that Katz stated a broad and general rule “that warrantless electronic surveillance conducted through non-trespas-sory methods is an unreasonable search and seizure within the meaning of the Fourth Amendment.” 516 F.2d at 611 . Finally, in Zweibon v. Mitchell, 606 F.2d 1172, 1179 (D.C.Cir.1979) (Zweibon III), this court held “that Keith and Zweibon I ... did not announce a new principle of law, but simply applied the constitutional warrant requirement to national security situations.”
The majority’s reasoning that the lack of a specific ruling that warrantless electronic surveillance was constitutionally proscribed in national security situations left Mitchell no clearly established guidelines is skewed. In my view, the unquestioned constitutional right that was violated in this case is the right, reaffirmed by Katz in 1967, to be free from unreasonable searches and seizures. Katz did not extend fourth amendment protections, but rather concluded that no exception exempted electronic eavesdropping from the coverage of those protections. In the same sense, Keith did not extend fourth amendment protection to domestic organizations. See Keith, 407 U.S. at 320 , 92 S.Ct. at 2138 (“We do not think a case has been made for the requested departure from Fourth Amendment standards.”). Because the fourth amendment warrant requirement is presumed to apply unless a clear exception excuses compliance, and because no exception for national security cases was established when Mitchell acted, the law to which he was subject was “clearly established.” Under the majority’s reverse reasoning, “clearly established statutory or constitutional rights” would be fact-bound, circumscribed by the particular circumstances of prior litigated cases, rather than by the principles by which those cases were decided.
Mitchell chose to ignore the principle on which Katz turned, apparently gambling that later Supreme Court decisions might limit the universality of Katz by establishing exceptions in national security situations. Under the Harlow standard, however, government officials who depart from “settled, indisputable law” in the hope that an exception will later be created justifying their conduct do so at their peril. *
The majority finds it “odd that appellants would charge Mitchell with a duty to apply, at his peril,” see ante at 171, n. 17 (emphasis added), two district court decisions finding warrantless wiretaps unconstitutional when directed at domestic groups. “Application” of United States v. Smith, 321 F.Supp. 424 (C.D. Cal.1971), or United States v. Sinclair, 321 F.Supp. 1074 (E.D.Mich.1971), would have resulted in either the cessation of the warrantless wiretaps or the procurement of a warrant. It is unclear to me what “peril” Mitchell would have faced had he chosen either of these options.
Further, it is difficult to reconcile the majority’s emphasis on the “reasonableness” of Mitchell’s reliance on certain district coúrt opinions with the “irrelevance” of Mitchell’s disregard of internal Justice Department mem-oranda advising him that warrants were re *176 quired. If the latter are irrelevant under Harlow , I would assume the former would be also.