Petition — James v. United States

Supreme Court, U. &

Ya FILED -%}

ees |

: i JUN 11 1976

MICHAEL RODAK, J@., CLERY

Zn the ;

Supreme Court of the United States

Ootoser TzRm, 1975

No. 75-1796

MARY JANE R. JAMES, Administratrix

of the Estate of Howard James,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIROUIT

Max Wistow

Attorney for Petitioner

Of Cownsel:

Tosry, LeRoy & Sr.verstTern

1122 Industrial Bank Building

Providence, Rhode Island 02903

| ee__§___—___________}

Blanchard Press, Inc., Boston, Mass. — Law Printers

INDEX

Page

Cee ON. TO 98. et Ae a 1

PS BFE 868. DET PREUNOR. 88 REEAWAS EA 2

ae Per ey or ere er 2

Constitutional Provisions and Statutes Involved ..... 2

Sins ar ee eee os a. ROI is Me. 3

Reasons for Granting the Writ

I. This Case Presents an Important Question of

Construction of the Federal Tort Claims Act... 4

II. This Case Presents an Important Question as

to the Continuing Validity of the Doctrine of

Sovereign Immunity of the United States..... 8

am is tk ec Se 650 ik TERA I OES A TR! 14

Appendix A — Opinions of Court of Appeals ... A-1, A-9

Opinions of District Court ..... A3-, A-11

Appendix B — Constitutional and Statutory

Provisions Involved ............. A-24

TaBLe or CITATIONS

Cases

Archer v. United States, 217 F.2d 548 (9th Cir. 1954),

cert, denied, 348 U.S. 953 (1955) ................; 7

Ayala v. Philadelphia Board of Public Education, 453

Pa. 564, 306 A.3d 877 (1973) ................... 10, 11

Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir.), cert.

CI ee a WP PE Sic d veces cecdesccsnm 7

Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480

Are, ts 3: eS 0 ae a Ait 5 Le 11

Barnes v. United States, 103 F. Supp. 51 (W.D.Ky.

DE cack vee is Gack bide veReAN SSE T es Daten Nd ten eK 7

ii Table of Contents

Page

Bivens v. Six Unknown Named Agents, 403 U.S. 388

MEE 60. 45s 6s ee es ee oe ae 8, 9, 13

Board of Comm’rs of the Port of New Orleans v.

Splendor Shipping & Enterprise Co., 273 So.2d 19

re errant rt a Pe 10, 11

Brooks v. United States, 337 U.S. 49 (1949) ......... 6

Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d 805

(OUD oso nsvupavspees Jb ED sade cuteedsl <VA. 10, 11

Brown v, United States, 99 F. Supp. 685 (S.D.W.Va.

OD ».t.. eile Bae facies... 7

Buckingham v. United States, 394 F.2d 483 (4th Cir.

OD casiuet bud tev ley, agin deol} ett 3 7

Callaway v. Garber, 289 F.2d 171 (9th Cir.), cert,

demed, 368 U.S. 874 (1961) ...................... 7

Campbell v. Indiana, 259 Ind. 55, 284 N.E.2d 733 (1972) 11

Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) 7

Evans v. Board of County Comm’rs, 174 Colo. 97, 482

wae Ge Gees « acoso rel. co ees 10

Fass v. United States, 191 F. Supp. 367 (E.D.N.Y. 1961) 7

Feres v. United States, 340 U.S. 135 (1950) .. 3, 4,5, 6,8

Gursley v. United States, 232 F. Supp. 614 (D. Colo.

ree ely (SP, Tal Be 7

Hale v. United States, 416 F.2d 355 (6th Cir. 1969) .. 7, 8

Hand v. United States, 260 F. Supp. 38 (M.D.Ga. 1966) 7

1

Haney v. Lexington, 386 S.W.2d 738 (Ky. 1965) ...... 1

Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d

PE EE ss v'ns.c'v-e'o spe cia eee oe ee 10, 11

Homlitas v. United States, 202 F. Supp. 520 (D.Ore.

Gere ee) ae Rowe 7

Indian Towing Co. v. United States, 350 U.S. 61 (1955). 5

J. I. Case v. Borak, 377 U.S. 426 (1964) .. 13

Knoch v. United States, 316 F.2d 532 (9th Cir. 1963) _ 7

Table of Contents iii

Page

Molitor v. Kaneland Community Unit District No. 302,

18 Ill. 2d 11, 163 N.E.2d 89 (1959), cert. denied, 362

Bs I IIE 6 wincvieie. i 40.ct dans veda obi <*> ke 10, 11

Muskopf v. Corning Hospital District, 55 Cal.2d 211,

~ 11 Cal, Rptr. 89, 359 P.2d 457 (1961) ..... Le cals 10, 11

National Bank v. nae of China, 348 U.S. 356

PESO oy er eet ee ee rere eee 9

Preferred Jncuvencs Co. v. United States, 222 F.2d

942 (9th Cir.), cert. denied, 350 U.S. 837 (1955) . 7

Proffit v. Colorado, 174 Colo, 113, 482 P.2d 965 (1971) 10, 11

Rayonier, Inc, v. United States, 352 U.S. 315 (1957) . 5, 6

Richardson v. United States, 226 F. Supp. 49 (E.D.Va.

BIE 5 cnccee ds + ccowened «eases dQwOnhUEa. GauRia. 7

Sapp v. United States, 153 F. Supp. 496 (W.D.La. 1957). 7

Scheele v. Anchorage, 385 P.2d 582 (Alas. 1963) . 11

Smith v. Idaho, 93 Idaho 795, 473 P.2d 937 (1970) - a3.

Snyder v. United States, 118 F. Supp. 585 (D.Md.

1953), modified sub. nom., United States v. Guyer,

218 F.2d 266 (4th Cir. 1954), rev’d per curiam and

District Court opinion reinstated, 350 U.S. 906

CE RS cate ioe eA OS wwe Denes: 7

Spencer v. General Hospital of District of Columbia,

425 F.2d 479 (D.C. Cir. 1969) ......... car ae

Stone v. Arizona Highway Commission, 93 Ars 384,

5. 6k vale Sea phere oe Vel 11

United States v. Brown, 348 U.S. 110 (1954) ........ 6

United States v. Carroll, 369 F.2d 618 (8th Cir. 1966) . 7

United States vy. Lee, 400 F.2d 558 (9th Cir. 1968),

cert. denied, 393 U.S. 1053 (1969) ................ 7

United States v. Lee, 106 U.S. 196 (1882) ........... 9

United States v. Muniz, 374 U.S. 150 (1963) ........ 6

Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1

BE A ee ee eS et ee ee ee eee 10, 11

Zoula v. United States, 217 F.2d 81 (5th Cir. 1955) .. 7

iv Table of Contents

Statutes

Page

UG. 4 S00)... ... eee eee 2

ees CU 4

2 Serer 3

Ro eee re 2, 3

rere 6

Constitutional Provisions

United States Constitution

Fourth Amendment ........................ 2, 3, 4

Fifth Amendment ...................... 2, 3, 4, 13

Kighth Amendment ........................ 2, 3, 4

Inde

Supreme Court of the United States

Ocroser Term, 1975

No.

MARY JANE R. JAMES, Administratrix

of the Estate of Howard James,

PETITIONER,

U.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioner, Mary Jane R. James, prays that a Writ of

Certiorari issue to review the Opinion of the United States

Court of Appeals for the First Circuit entered on March

16, 1976.

Opinions Below

The Opinions of the Court of Appeals entered on March

16, 1976 (noted at 530 F.2d 926) and of the District Court,

entered on August 14, 1975, respectively, are not officially

2

reported, but are reproduced in Appendix A to this Peti-

tien, beginning at page A-1, infra. The earlier Opinion of

the Court of Appeals (noted at 502 F.2d 1159) is not

officially reported, and that Opinion as well as the earlier

Opinion of the District Court reported at 358 F. Supp.

1381 (D.R.I. 1973) are reproduced in Appendix A hereto.

Jurisdiction

The Opinion of the Court of Appeals was entered on

March 16, 1976. This Court has jurisdiction to review

the same b¥ Writ of Certiorari under 28 U.S.C. § 1254(1).

Questions Presented

1. May recovery be had under the Federal Tort Claims

Act by the estate of a deceased serviceman, where the

serviceman, while on leave and in civilian clothing at his

base, was wrongfully beaten to death by a military security

guard? ~ ;

2. Is the doctrine of sovereign immunity to be applied

to bar a claim against the United States for damages re-

sulting from violation of rights secured by the Fourth,

Fifth and Eighth Amendments to the United States Con-

stitution?

Constitutional Provisions and Statutes Involved

The Constitutional provisions involved are the Fourth,

Fifth and Eighth Amendments to the United States Con-

stitution. The statute involved is 28 U.S.C. § 2674. The

Constitutional Amendments and the statute are reprinted

in Appendix B hereto.

3

Statement of the Case

Howard James (‘‘James ’’) was a serviceman in the

United States Navy, stationed at the naval base in Quonset

Point, Rhode Island. On August 14, 1969, James, while

on leave and in civilian dress, was arrested on the base

for disorderly conduct. He was taken to the guard house

and was to be transported to the base dispensary for a

sobriety test.

While James was in the guard house, a naval security

guard struck him repeatedly on the head with a night

stick. The evidence showed that after James had failen

to the floor, the security guard, using his foot, stomped

repeatedly on James’ head. Two other naval security

guards were present throughout this episode. The trial

judge found (at 358 F. Supp. 1383-84) that the guard

striking James ‘‘used unreasonable and excessive force

in subduing James’’, and that one of the other guards

present ‘‘could have stopped or mitigated [the] blows

after the second blow,’’ but did not do so out of deference

to a ranking officer. The Navy gave no specialized training

to these guards, nor did the Navy make any effort to

sereen personnel best suited for such duty. James died

two days later as a result of the injuries inflicted.

Petitioner, as administratrix of the Estate of Howard

James, brought an action against respondent for the

wrongful death of James, seeking recovery under the

Federal Tort Claims Act, 28 U.S.C. § 2674; 28 U.S.C.

§ 1346 provides for jurisdiction of such claim. The District

Court entered a judgment for the respondent, holding

recovery was precluded by the case of Feres v. United

States, 340 U.S. 135 (1950) and refusing to consider any

claims based on the alleged deprivation of James’ rights

under the Fourth, Fifth and Eighth Amendments to the

United States Constitution. The Court also denied peti-

4

tioner’s post-judgment motion to amend her complaint so

as to expressly allege such claims and jurisdiction of the

same under 28 U.S.C. 41331. Petitioner appealed to the

United States Court of Appeals for the First Circuit. The

Court of Appeals (on the first appeal of the case) con-

sidered only the District Court’s refusal to grant peti-

tioner’s motion to amend the complaint so as to expressly

include allegations as to violation of James’ Fourth, Fifth

and Eighth Amendment rights; the Court of Appeals

reversed the District Court’s ruling on petitioner’s motion

to amend, and remanded the case for ‘‘the limited purpose

of completing the record by allowing the amendment to

the complaint, taking any additional evidence germane to

the issues raised thereby, and making such factual findings

and legal conclusions as the Court ¢eems appropriate.’’

On remand, the record was not reopened, both parties

choosing to rest on the earlier proceedings. The District

Court thereupon held that the doctrine of sovereign im-

munity was a complete bar to petitioner’s action based

upon James’ deprivation of his Constitutional rights, as

set forth in the amended complaint. Petitioner again ap-

pealed to the Court of Appeals for the First Circuit.

The Court of Appeals sustained the judgment of the Dis-

trict Court, thereby affirming the District Court’s deter-

mination that petitioner could not recover under the

Federal Tort Claims Act and that the doctrine of sovereign

immunity barred recovery for violation of James’ Fourth,

Fifth and Eighth Amendment rights.

Reasons for Granting the Writ

1. Tris Cast Presents aN IMporTANT QUESTION AS TO THE

CONSTRUCTION OF THE FepERAL Tort Ciams Acr.

Based on this Court’s holding in Feres v. United States,

340 U.S. 135 (1950), the Cirenit Court concluded that

5

petitioner could not recover under the Federal Tort Claims

Act (““FTCA’’). In Feres, at 340 U.S. 146, this Court

held:

We conclude that the Government is not liable under

the Federal Tort Claims Act for injuries to service-

men where the injuries arise out of or are in the course

of activity incident to service. Without exception, the

relationship of military personnel to the Government

has been governed exclusively by federal law. We do

not think that Congress, in drafting this Act, created

a new cause of action dependent on local law for

service-connected injuries or death due to negligence.

We cannot impute to Congress such a radical de-

parture from established law in the absence of express

congressional command.

Since the enunciation of the Feres doctrine, subsequent

opinions of this Court have rejected the theoretical under-

pinnings of the doctrine, thereby warranting re-examination

of the Feres holding.

The Feres holding was premised on four major factors:

1) the absence of analogous private liability in similar

circumstances; 2) the relationship of the serviceman to

his superiors and to the Government, and the effect on

military discipline of civil actions by a serviceman for

the negligence of another serviceman; 3) the diversity

of results as determined by local law; and 4) the existence

of a uniform compensation system as a remedy for in-

juries.

The premise that in the absence of analogous private

—jiability recovery is barred against the Government was

rejected in Rayonier, Inc. v. United States, 352 U.S. 315

(1957) and Indian Towing Co. v. United States, 350 US.

61 (1955). The ‘‘unique’”’ relationship and discipline

6

postulates were faced by this Court and implicitly re-

jected as dispositive of Governmental liability in United

States v. Muniz, 374 U.S. 150 (1963). In Muniz the

vagaries of local law were also rejected as a basis for

denial of recovery. Finally, the existence of an alternate

compensation system did not bar claims under the FTCA

in cases decided both before and after Feres; See Brooks

v. Umited States, 337 U.S. 49 (1949) and United States v.

Brown, 348 U.S. 110 (1954).

Two years after this Court, in Feres, read an exception

into the FTCA by implication, it commented in Rayonier,

Inc. v. United States, supra, at 342 U.S. 320:

There is no justification for this Court to read ex-

ceptions into the Act beyond those provided by Con-

gress. If the Act is to be altered, that is the function

for the same body that adopted it.

See also, Muniz v. United States, supra, at 374 U.S. 166.

(It should be noted that the FTCA has one express ex-

ception specifically relating to the military and two express

exceptions which may relate to the military, none of which

is applicable to this case. See 28 U.S.C. § 2680(j), 28 U.S.C.

§ 2680(a) and 28 U.S.C. 4 2680(k).)

Petitioner submits that in the light of these decisions,

re-examination of Feres is warranted.

Even if this Court chooses not to re-examine the Feres

doctrine fully, the very ambiguity of the language used

therein calls for interpretation and clarification by this

Court.

While the Feres case employed the phrase ‘‘incident to

[military] service’’, other decisions of this Court have

employed the phrase ‘‘in the course of military duty”’ as

the standard for determining whether the Federal Tort

Claims Act exclusion applies. E.g., United States v.

Brown, supra, Courts have pointed out that these

7

phrases are not identical. E.g., Hale v. United States,

416 F.2d 355 (6th Cir. 1969); United States v. Carroll,

369 F.2d 618, 622 (8th Cir. 19°53). And the court, in

Hale v. United States, supra at 416 F.2d 359 pointed to a

lengthy list of cases illustrating the confusion as to the

proper standard to be applied. For example, the fol-

lowing cases applied the ‘‘line of duty’’ standard:

Buckingham v. United States, 394 F.2d 483 (4th Cir. 1968) ;

Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir.), cert. denied,

389 U.S. 923 (1967) ; Archer v. United States, 217 F.2d 548

(9th Cir. 1954), cert. denied, 348 U.S. 953 (1955); Brown

v. United States, 99 F. Supp. 685 (S.D.W.Va. 1951).

The following cases applied the ‘‘incident to service’’

standard: United States v. Carroll, 369 F.2d 618 (8th Cir.

1966); Chambers v. United States, 357 F.2d 224 (8th Cir.

1966) ; Preferred Insurance Co. v. United States, 222 F.2d

942 (9th Cir.), cert. denied, 350 U.S. 837 (1955); Zowa v.

United States, 217 F.2d 81 (5th Cir, 1955); Gursley v.

United States, 232 F. Supp. 614 (D.Colo. 1964) ; Richardson

v. United States, 226 F. Supp. 49 (E.D.Va. 1964) ; Homlitas

v. United States, 202 F. Supp. 520 (D.Ore. 1962); Sapp v.

United States, 153 F. Supp. 496 (W.D.La. 1957); Barnes

v. United States, 103 F. Supp. 51 (W.D.Ky. 1952).

And the following cases employed both standards in

reaching a determination: United States v, Lee, 400 F.2d

558 (9th Cir. 1968), cert. denied, 393 U.S. 1053 (1969) ;

Knoch v. United States, 316 F.2d 532 (9th Cir. 1963) ;

Callaway v. Garber, 289 F.2d 171 (9th Cir.), cert. denied,

368 U.S. 874 (1961); Hand v. United States, 260 F. Supp.

38 (M.D.Ga. 1966) ; Fass v. United States, 191 F. Supp. 367

(E.D.N.Y. 1961); Snyder v. United States, 118 F. Supp.

585 (D.Md. 1953), modified sub. nom., United States v.

Guyer, 218 F.2d 266 (4th Cir. 1954), rev’d per curtam and

District Court opinion reinstated, 350 U.S. 906 (1955).

8

Moreover, the difficulties inherent in the Feres standard

(‘‘ineident to service’’) were succinctly stated in Hale

v. United States, supra, at 416 F.2d 358:

The standard ‘‘incident to military service’’ has

many deficiencies as a basis for exclusion under the

Federal Tort Claims Act as other courts have pointed

out. It is so lacking in precision that the mere fact

that the plaintiff was in military service at the time

of the accident can provide a logical basis for the gov-

ernment’s arguing for exclusion of the person con-

cerned on a post hoc, ergo propter hoc basis. See, e.g.,

Knecht v. United States, 144 F. Supp. 786, 789 (E.D.

Pa. 1956), aff’d, 242 F.2d 929 (3d Cir. 1957). Clearly,

for example, the plaintiffs in Brooks v. United States,

337 U.S. 49, 69 S. Ct. 918, 93 L. Ed. 1200 (1949), and

United States v. Brown, 348 U.S. 110, 75 S. Ct. 141,

99 L. Ed. 139 (1954), would not have been where they

were at the time the injuries to eacn of them took place

except for the fact that they were in or had been in

military service.

It is submitted that at a minimum this Court should

review the Feres doctrine and explore the limits thereof,

and clarify the standard to be applied in determining the

circumstances under which a serviceman can maintain an

action under the FTCA.

II. Tus Cast Presents an ImporTANT QUESTION AS TO THE

ConTINUING VALIDITY OF THE DocTRINE oF SovEREIGN

IMMUNITY OF THE Unrrep Srarss.

In Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971), this Court held that violation of a person’s Con-

stitutional rights gives rise to a cause of action in tort for

ome

9

money damages, maintainable against the federal officer(s)

who violated those rights. Left unsettled by Bivens is

whether an action for tortious violation of Constitutional

rights by a federal officer can be successfully maintained

against the United States itself on the theory of respondeat

superior. Bivens makes clear the existence of a tort;

however, unless the doctrine of sovereign immunity is

abrogated, a claim against the United States cannot be

maintained for violation of the rights recognized in

Bivens.

The doctrine of sovereign immunity with respect to the

federal government finds its hoary origins as early as

the case of United States v. Lee, 106 U.S. 196 (1882),

where the doctrine was accepted without analysis. This

Court, in recent years, has not scrutinized the doctrine of

sovereign immunity in the context presented by the instant

petition. However, in National Bank v. Republic of China,

348 U.S, 356 (1955), this Court commented (at 348 U.S.

359-60) :

But even the immunity enjoyed by the United States

as territorial sovereign is a legal doctrine which has

not been favored by the test of time. It has increas-

ingly been found to be in conflict with the growing

subjection of governmental action to the moral judg-

ment. A reflection of this steady shift in attitude

toward the American sovereign’s immunity is found

in such observations in unanimous opinions of this

Court as ‘‘Public opinion as to the peculiar rights

and preferences due to the sovereign has changed”’.

Davis v. Pringle, 268 U.S. 315, 318; ‘‘There is no

doubt an intermittent tendency on the part of govern-

ments, to be a little less grasping than they have been

in the past ..., ’’ White v. Mechanics Securities

Corp., 269 U.S. 283, 301; ‘‘... the present climate

10

of opinion ... has brought governmental immunity

from suit into disfavor... ,’’ Keifer d Keifer v.

Reconstruction Finance Corp., 306 U.S. 381, 391... .

The outlook and feeling thus reflected are not merely

relevant to our problem. They are important. The

claims of dominant opinion rooted in sentiments of

justice and public morality are among the most power-

ful shaping-forces in lawmaking by courts. Legisla-

tion and adjudication are inter-acting influences in

the development of law. A steady legislative trend,

presumably manifesting a strong secial policy, prop-

erly makes demands on the judicial process. See

James M. Landis, Statutes and the Sources of Law,

in Harvard Legal Essays (1934), p. 213 et seq.; Harlan

F’, Stone, The Common Law in the United States, 50

Harv. L. Rev. 4, 13-16.

The sentiments expressed by this Court are in keeping

with the modern view that sovereign immunity is a dis-

favored anachronism. The doctrine of sovereign immunity,

and its derivative companion of governmental immunity

(the latter being applicable to municipalities or govern-

mental entities as well as the state itself), have been

sharply criticized in recent years. E.g., Board of Comm’rs

of the Port of New Orleans v. Splendor Shipping & En-

terprise Co., 273 So.2d 19 (La. 1973) ; Ayala v. Philadelphia

Board of Public Education, 453 Pa. 584, 305 A.2d 877

(1973); Proffit v. Colorado, 174 Colo. 113, 482 P.2d 965

(1971); Evans v. Board of County Comm’rs, 174 Colo. 97,

482 P.2d 968 (1971); Brown v. City of Omaha, 183 Neb.

430, 160 N.W.2d 805 (1968); Holytz v. City of Milwaukee,

17 Wis.2d 26, 115 N.W.2d 618 (1962); Muskopf v. Corning

Hospital District, 55 Cal.2d 211, 11 Cal. Rptr. 89, 359 P.2d

457 (1961) (Opinion of Traynor, C.J.); Williams v. City

of Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961); Molitor

11

v. Kaneland Community Unit Dist. No. 302, 18 Ill. 2d 11,

163 N.E.2d 89 (1959), cert. denied, 362 U.S. 968 (1960) ;

Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480

(1943).

Thus, in a number of states, courts, to varying degrees,

have undertaken to judicially abolish the sovereign im-

munity historically afforded to the state or the govern-

mental immunity historically afforded to municipalities

and other governmental entities. E.g., Board of Comm’rs

of the Port of New Orleans v. Splendor Shipping & En-

terprise Co., supra, (La.); Ayala v. Philadelphia Board

of Public Education, supra, (Pa.); Campbell v. Indiana,

259 Ind. 55, 284 N.E.2d 733 (1972); Proffit v. Colorado,

supra, (Colo.); Smith v. Idaho, 93 Idaho 795, 473 P.2d 937

(1970) ; Brown v. Omaha, supra, (Neb.); Haney v. Lexing-

ton, 386 S.W.2d 738 (Ky. 1965); Scheele v. Anchorage,

385 P.2d 582 (Alas. 1963); Stone v. Arizona Highway

Comm’n, 93 Ariz. 384, 381 P.2d 107 (1963); Holytz v.

Milwaukee, supra, (Wis.); Muskopf v. Corning Hospital

District, swpra, (Cal.); Williams v. City of Detroit, supra,

(Mich.) ; Molitor v. Kaneland Community Unit District No.

302, supra, (Ill.) ; Barker v. City of Santa Fe, supra, (N.M.).

Also worthy of note is Spencer v. General Hospital of

District of Columbia, 425 F.2d 479 (D.C. Cir. 1969).

Therein the court abolished the concept of sovereign im-

munity as it applied to the District of Columbia. In his

concurring opinion, Judge Wright wrote:

Dissatisfaction with the law of municipal immunity

does not rest solely on the illogic of the distinctions

made in the area. It stems further from discontent

with the whole concept of a broad sovereign immunity

in tort, whether of local, state or national government.

Few doctrines in the law have sustained such volu-

minous, searching and almost unanimous attack as

12

the principle that governments should not respond

in damages for their torts. The principle has been

examined and found without basis in history properly

interpreted, in political theory, or in sound public

policy.

The notion that government immunity in tort prop-

erly derives from the English common law prin-

ciple that ‘‘the King can do no wrong’’ has

been shown to rest on an erroneous reading of history.

The notion that public funds are not collected for

the purpose of redressing official wrongdoing, and

hence cannot be expended for that purpose, rests on

the same circular and specious logic which has been

rejected by the courts in the area of charitable im-

munity. And finally the bald policy conclusion that

‘it is better that an individual should sustain an

injury than that the public should suffer an incon-

venience’’ runs counter to both the traditional tort

principle that vis-a-vis the innocent victim the wrong-

doer should pay, and modern tort concepts of risk

distribution and cost allocation.

When in the course of performing their functions

governments lawfully acquire goods and services, they

are expected to pay the costs. No one has ever given

an adequate argument why the same goveraments

should not a fortiori pay the costs when in perform-

ing the same functions they wrongfully injure inno-

cent people.

The doctrines of sovereign and municipal immunity

were made by judges as part of the common law.

Legislatures have generally not imposed immunity;

rather they have more often limited it in piecemeal

fashion where it was felt to be particularly egregious

or impolitic. However, it is only since 1955 — the

date of Calomeris — that courts have stopped be-

13

moaning the bad doctrines which they created in the

first place, and have begun the serious task of reform-

ing them. In the last decade, the highest courts of at

least 12 states have broadly abrogated the immunity

in tort of the cities or the states or both. In fewer

states have the traditional immunities been explicitly

reaffirmed. [At 425 F.2d, 479, 486-88 (Wright, J., con-

curring); footnotes omitted.]

In rendering his decision in the case at bar, District

Court Judge Raymond J. Pettine quoted from the Magna

Carta, Clause 39:

No man shall be in any sort destroyed unless it be by

the verdict of his equals, or according to the law of

the land.

The Judge commented that it would be ironic if this Court

was able to imply remedies for violation of statutory

rights (citing J. J. Case v. Borak, 377 U.S. 426 (1964)),

but unable to provide an ordinary judicial remedy for

invasion of rights protected by the Supreme law of the

land, the Constitution. Indeed, the language used by courts

who have criticized the doctrine of sovereign immunity,

strongly suggests the doctrine itself is violative of the

Fifth Amendment to the United States Constitution.

In view of this Court’s recognition, in Bivens, of the

existence of a cause of action for a ‘‘constitutional tort’’,

in view of the repudiation of the doctrines of sovereign

and governmental immunity by the overwhelming majority

of recent court opinions and in view of the fact that this

Court has not passed on the issue of sovereign immunity of

the United States in recent years, petitioner submits that

issuance of a writ of certiorari is warranted in the case

at bar.

14

Conclusion

For the foregoing reasons, petitioners urge that the

petition for a writ of certiorari be granted.

Respectfully submitted,

Max Wistow

Attorney for Petitioner

Of Counsel:

Tosrn, LeRoy & Sr.verstern

1122 Industrial Bank Building

Providence, Rhode Island 02903

June 8, 1976

A-l

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 75-1430

MARY JANE JAMES, Apmryistraterx,

_ oF THE Estate or Howarp James,

PLAINTIFF, APPELLANT,

v.

UNITED STATES OF AMERICA,

DEFENDANT, APPELLEE.

Before Corrin, Chief Judge,

Avupricn and Campse.y, Circuit Judges

MEMORANDUM AND ORDER

Entered March 16, 1976

Per Curtuam. This is basically a Federal Tort Claims

action for wrongful death brought by the estate of Howard

James, a sailor on active duty in the United States Navy,

who died following blows received from a security guard

while in custody and apparently requiring to be subdued.

The district court, after a full trial, dismissed the complaint

for failure to establish a cause of action, primarily on the

basis of Feres v. United States, 1950, 340 U.S. 135. On a

prior appeal, plaintiff complained that the district court

had failed to pass on all her factual and legal contentions,

and asserted that she wished at least to seek review by

the Supreme Court in light of Bivens v. Sia Unknown

Agents, 1971, 403 U.S. 388. She stated that for this purpose

she would be in a better position with an amended com-

plaint and more factual findings. Not wishing there to be

A-2

formal obstacles in her attempt to obtain review, we re-

manded to the district court,

‘¢... for the limited purpose of completing the record,

by allowing the amendment to the complaint, taking

any additional evidence germane to the issues raised

thereby, and making such factual findings and legal

conclusions as the court deems apprepriate.’’

On remand, plaintiff was permitted to amend, declined

to offer further evidence, and sought further findings. This

last the court refused to do, holding it unnecessary, since

plaintiff’s factual contentions could not establish liability

of any sort.

No useful purpose would be served by a diseussion of the

record by us, or by a further remand. We agree with the

district court’s conclusions, except its comment that the

principle recognized by Feres is unjust. How best to handle

the complexities of conducting the Armed Services is purely

a legislative matter.

The judgment of the district court is affirmed.

By the Court:

(s) Dana H. Gatiup

Clerk

A-3

District Court or THE UntrTep States

For tue District or Ruope Istanp

C.A. No. 4670

Mary Jane R. James, Administratrix of the Estate of

Howarp Harrison JAMES, JR.

v.

Untrep States or AMERICA

MEMORANDUM OPINION

Petting, Chief Judge

This non-jury death action is now before the Court on

remand from the First Circuit, James v. United States,

502 F2d 1159 (1st Cir. 1973), vacating 359 F.Supp. 1381

(hereinafter ‘‘ James I’’, references by page number only)

so as to allow the plaintiff to amend her complaint by

adding a count alleging a violation of the deceased’s con-

stitutional rights and to permit the court to make further

findings of fact and conclusions of law as thereby required.

The record has not been reopened, both sides choosing to

rest on the earlier proceedings and legal argument to the

Court. The matter is thus ripe for determination on the

merits.

In ‘‘James I’’ the Court, after concluding that the

Supreme Court’s ruling in Feres v. United States, 340 U.S.

135 (1950), barred recovery by the plaintiff under the

Federal Tort Claims Act, 28 U.S.C. §2671 et seq., raised

the question as to whether the concept of a constitutional

Tort as analyzed in Bivens v. Sia Unknown Federal Nar-

cotics Agents, 403 U.S. 388 (1971), would provide a remedy

herein. 358 F.Supp. at 1386. The Court went on to state,

however, at 1387

‘*Tf Bivens were to provide a cause of action to this

plaintiff, the questivn of sovereign immunity in this

A-4

action against the United States would be one of con-

siderable difficulty. While many state courts have

abolished state law doctrines of sovereign immunity,

see e.g., Bd. of Cmsrs. of the Port of New Orleans

v. Spendour Shipping & Entertaining Co., Inc., La.,

273 So.2d 19, this Court is not free to abolish the

federal doctrine of sovereign immunity. Though the

federal doctrine has been much criticized as having

little foundation in the history of Anglo-Saxon juris-

prudence and little support in public policy consider-

ations, it has not been abolished by the Supreme Court.

See C. Jacobs, The Eleventh Amendment and Sover-

eign Immunity (1972).’’

The government contends it is shielded from liability by

its sovereign immunity because it has not consented to a

suit in damages based upon deprivation of a constitutional

right. The plaintiff argues that the doctrine, which is

nowhere affirmatively expressed in the Constitution cannot

be used to immunize the government from liability in

damage actions based upon violations of express prohibi-

tions of the document. See also Dellinger, Of Rights and

Remedies: The Constitution as a Sword, 85 Harv.L.Rev.

1532, 1554-1559. Obviously this must be resolved before

we can proceed further.

The judicial development of the doctrine of the sover-

eign immunity of the United States has been the subject

of extensive analysis and criticism that need not be re-

peated here. See generally Hart & Wechsler, The Federal

Courts and the Federal System 1339-1351 and N 1 (2d ed.

1973); Note, Developments in the Law—Remedies Against

the United States and Its Officials, 70 Harv.L.Rev. 829

(1957). Whatever its origin and however indefensible in

logie or equity its rationale, the principle that the federal

government is immune from suit without its consent is

A-5

one which the Supreme Court has too frequently and too

recently repeated to be questioned as controlling law.’

Plaintiff contends that she does not seek the abolishment

of the doctrine, although the bulk of her brief is devoted

to forceful and persuasive argument and quotation which

attack the basis for the doctrine as it is generally applied.

Rather plaintiff contends that her position is the more

limited one that the doctrine has no application where a

claim is based directly upon the Constitution. This argu-

ment has much initial appeal, yet in actuality its appeal

rests on its attack of the same flawed logic and unfair

results that undermine the concept of sovereign immunity

in toto. Plaintiff is unable to marshall any support for her

position that claims based directly upon the Constitution

should be treated differently from those claims which arise

under federal statutes or by virtue of the Federal Tort

Claims Act. Her distinction is unworkable. Indeed the

argument could be made that all claims based upon federal

statutes are also ‘‘constitutional’’ claims since they trace

their source through a congressional enactment which in

turn must find its basis in the Constitution.? To apply

plaintiff’s analysis might thereby result in the back-door

abrogation of the doctrine of sovereign immunity.

Similarly, the Court finds no support for plaintiff’s

position in Bivens itself. In Bivens the Supreme Court

did no more than recognize that the Constitution itself

gives rise to a federal cause of action in damages which

1 See, e.g., Affiliated Ute Citizens of Utah v. United States, 406

U.S. 128, 141-142 (1972); Honda v. Clark, 386 U.S. 484, 501

(1967) (dictum) ; Dugan v. Rank, 372 U.S. 609, 620-621 (1963);

Feres v. United States, supra, at 139 and n.7; United States v.

Sherwood, 312 U.S. 584, 586 (1941); United States v. Shaw, 309

U.S. 495.

2For example, compare the Bivens tort concept to 28 U.S.C.

§A83 [ sic] which statutorily creates the analogous cause of action as

against state officials. See, eg., Munroe v. Pape, 365 U.S. 167

(1961).

A-6

could be maintained in federal court against persons vio-

lating its terms under color of federal law. One pre-Bivens

commentator, in urging this result, claimed that such a

ruling would do no more than to accord those constitu-

tional interests not elsewhere codified by Congress the

status of ‘‘ordinary’’ law. Katz, The Jurisprudence of

Remedies: Constitutional Legality and the Law of Torts

in Bell v. Hood, 117 U.Pa.L.Rev. 1, 40 (1968). Recognition

of such constitutional torts does not, of itself, have any

effect on the government’s sovereign immunity. See Bivens,

supra at 410 (Harlan, J., concurring in judgment). Cf.

Monroe v. Pape, 365 U.S. 167 (1961); Katz, supra, 117

U.Pa.L.Rev. at 5.

This Court has been unable to find any support for

plaintiff’s position that constitutional claims must hold a

unique status requiring the conclusion that the government

has no sovereign immunity in this ‘‘area’’ alone. As dis-

cussed above, this ‘‘area’’, is an amorphous one whose

boundaries are not readily perceived. The Court is rather

convinced that plaintiff’s argument on its merits applies

with equal force and logic to the entire concept of sover-

eign immunity and thus does not call for special treatment

for claims against the federal government which find their

basis in the Constitution.

‘‘Dissatisfaction with the law of municipal immunity

does not rest solely on the illogice of the distinctions

made in the area. It stems further from discontent

with the whole concept of a broad sovereign immunity

in tort, whether for local, state or national govern-

ments. Few doctrines in the law have sustained such

voluminous, searching and nearly unanimous attack

as the principle that governments should not respond

in damages for their torts. The principle has been

examined and found without basis in history properly

A-7

interpreted, in political theory, or in sound public

policy.

The notion that governmental immunity in tort

properly derives from the English common law prin-

ciple that ‘‘the King can do no wrong’’ has been

shown to rest on an erroneous reading of history. The

notion that public funds are not collected for the pur-

pose of redressing official wrongdoing, and hence can-

not be expended for that purpose, rests on the same

circular and specious logic which has been rejected

by the courts in the area of charitable immunity. And

finally the bald policy conclusion that ‘it is better that

an individual should sustain an injury than that the

public should suffer an inconvenience’ runs counter to

both the traditional tort principle that vis-a-vis the

innocent victim the wrongdoer should pay, and modern

tort concepts of risk distribution and cost allocation.

When in the course of performing their functions

governments lawfully acquire goods and services, they

are expected to pay the costs. No one has ever given

an adequate argument why the same governments

should not a fortiori pay the same costs when in

performing the same functions they wrongfully injure

innocent people.’’

Spencer v. General Hospital of District of Col-

umbia, 425 F.2d 479, 486-487 (D.C.Cir. 1969)

(Wright J., concurring).

I can do no more than echo Judge Wright’s observations

quoted above. A grave injustice is worked here by the gov-

ernment’s escape from liability. No citizen can take com-

fort in the enforcement of a doctrine which deems the fiscal

integrity of our nation as more worthy of protection than

the liberties upon which the republic was founded. This

Court, however, cannot ignore the continued viability of

the doctrine nor can it abolish it. As a result, the Court

A-8

must find that the government’s defense of sovereign im-

munity is a complete bar to this action and award judg-

ment for the defendant.

It is so ordered.

(s) Frepertcx R. DeCesaris

Chief Deputy Clerk

Enter:

(s) Raymonp J. Perrine

Chief Judge 8/14/75

A-9

United States Court of Appeals

For the First Circuit

No. 73-1294.

MARY JANE R. JAMES, Apmrnistratrix

oF THE Estate or Howarp James,

PLAINTIFF, APPELLANT,

v.

UNITED STATES OF AMERICA,

DEFENDANT, APPELLEE,

Before Corrin, Chief J-dge,

AupricH and CamMpBELL, Circuit Judges.

MEMORANDUM and ORDER

Entered December 5, 1973

The present record allows us to consider only the appli-

eation and continued viability of Feres v. United States,

340 U.S. 135 (1950) but not the issue of the supposed

relevance of Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971). We are prevented, by the denial of a

post-judgment motion to amend the complaint, and by the

absence of such evidence and findings as to negligence and

causation as might have been relevant to the issue sought

to be tendered, from considering whether or not ‘‘a con-

stitutional tort’’ had been committed, and, if so, whether

an action based thereupon may be brought, either under

the Federal Tort Claims Act, notwithstanding Feres, or

independently of such Act, notwithstanding the traditional

defense of sovereign immunity.

Although the court may have been legally correct in

denying the amendment, appellant, with some equity, urges

that at least the record in this case be such as to permit her

to seek a petition for certiorari which could embrace these

A-10

wide-ranging issues. Appellant has suffered the loss of her

son and her substantive legal obstacles loom large enough

without our adding procedural barriers to her attempt to

preserve issues she deems important.

Without, therefore, suggesting that we disagree with the

district court’s ruling on the merits of the unamended com-

plaint, or that we support the theory of the proferred

amendment, we vacate the order of the district court and

remand the case for the limited purpose of completing the

record by allowing the amendment to the complaint, taking

any additional evidence germane to the issues raised there-

by, and making such factual findings and legal conclusions

as this court deems appropriate. No costs at this time.

By the Court:

(s) Dana H. Gatiup

Clerk.

A-11

Unrrep States District Court

D. Ruops Istanp

Civ. A. No. 4670.

Mary Jane James, Administratrix of the

Estate of Howard James

v.

Unrrep States oF AMERICA

Leonard Decof, and Max Wistow, Providence, R.I., Moses Kando,

Pawtucket, R.1., for plaintiff.

Lincoln C. Almond, U.S. Atty., Everett Sammartino, Asst. U.S.

Atty., Providence, R.I., Stephen P. Refsell, U.S. Navy, Quonset

Point, R.I., for defendant.

OPINION

May 25, 1973.

Pertine, Chief Judge.

This non-jury death action was brought under the Fed-

eral Tort Claims Act (F.T.C.A.), 28 U.S.C. §§ 1346, 2671,

et seq., by the administratrix of the estate of Howard Har-

rison James, Jr. At the time of his death Howard James

was a member of the United States Navy, stationed at

Quonset Point, Rhode Island, under arrest and in the cus-

tody of the security guard. The action is based on the

alleged negligence of the government in failing to train the

security personnel, in failing to use due care to provide

protection for the decedent while he was under arrest, and

in assigning one Curtis Taylor as a member of the security

force.

On August 14, 1969 the decedent James, while on the post

on leave and in civilian dress, was arrested by Lt. Com-

mander Charles R. Foster, the Command Duty Officer in

charge of base security. James was taken to the guard

house to be formally charged with disorderly conduct and

then to be transported to the dispensary for a sobriety test.

A-12

In the guard house, Curtis Taylor, a black security guard,

was instructed by Foster to execute these orders. Taylor

approached James, who was attempting to make a tele-

phone call, and grabbed the phone from James’ hand and

slammed it down on the cradle. Taylor then ordered James

to go to a passageway and ‘‘stand by.’’ Present in the

guard house at this time in addition to James, were Taylor

and two other guards, Robert Goodchild and Mervin

Dubree. Each has his own version of what happened.

Dubree stated that the decedent in complying with the

order to move to the passageway said ‘‘Remember I’m

white—I’m not black.’’ At that time Dubree was standing

in front of James, facing him. Dubree remembers seeing

a hand come over his shoulder striking James in the area

of the face and throat. A fight then started. Dubree grabbed

James in a ‘‘full nelson’’—that is, from the rear, he placed

his arms under the decedent’s arm pits and laced his fingers

in the nape of James’ neck, thrusting the decedent’s head .

forward, thus completely subduing him. Dubree stated

that ‘‘first thing [he] knew Taylor had a night stick and

hit [the decedent] across the face.’? James went limp.

Dubree, still holding James, then saw a second blow with

the night stick coming. In ducking out of the way, Dubree

lost his grip on James. James fell to the floor. Neverthe-

less, Taylor continued to strike hard blows on James’

head. He did this ‘‘2, 3, 4’’ times. Dubree further testified

that he said to Taylor ‘‘That’s enough”’ and tried to stop

Taylor. He was unable to do so. Taylor jabbed him with

his elbow knocking him backwards. He also remembered

seeing Taylor ‘‘do something’’ with his foot to James and

saying ‘‘Yes—I’m black.’’ Two days later James died as

a result of these injuries.

Taylor testified that while in custody James started

‘‘mouthing off’’ racial remarks and when told to stand by

said he wasn’t going any place with any ‘‘nigger.’’? Taylor

A-13

said that as he tried to grab James, he [Taylor] was

punched and knocked to the floor. This happened three

times. On the third time, as he was getting up, he grabbed

a night stick from Goodchild’s hand and swung it at James.

Taylor testified that he has no recall of what happened

after that. He further testified he had no intention of

hurting James nor of using any ‘‘techniques’’ on him with

the night stick.

Goodchild’s account is similar to Taylor’s excepting for

certain additional facts. He states that James was given

the order ‘‘All right, let’s go,’’ and that after James

made the comment of not going with a ‘‘nigger,’’ Taylor

grabbed him by the collar. It was at this point James first

punched Taylor. Dubree tried to get a full Nelson on

James as Goodchild was trying to grab him around the

head while at the same time pushing his night stick into

James’ back. It was this night stick that Taylor grabbed.

He saw Taylor strike James three times with the right

stick; once across the face and twice on the head while

he was on the floor. He further stated ‘‘Then Taylor

stomped [James] ...’’ three or four times on the head and

said ‘‘ ‘I’m black, you’re white. I’m tired of being black,’

and then threw the night stick down and walked out of

the office.’’ After all this James got up—‘‘ There was blood

all over the place and when he got up his hands were

covered with blood so he got blood all over the walls and

fell down back.’’

When Goodchild was asked if he could have stopped

Taylor from ‘‘further hitting James’’ he answered, ‘‘I

understand that Taylor went too far and I am pretty sure

I know when he should have stopped. I am not saying

that James didn’t need subduing, because he did need to

be subdued, but I feel I knew when, you know, when they

went too far.’’ He stated he felt that point was after the

second blow and that he could have stopped Taylor after

A-14

that but he did not because Taylor was superior in rank

and therefore could not be questioned.

Though not alleged in the complaint the plaintiff seeks

to show negligence premised on the failure of the govern-

ment to adequately train personnel assigned to security.

In the course of the trial counsel for the plaintiff empha-

sized the lack of special instructions to the security per-

sonnel in the use of a night stick. The facts in this regard

need not be labored. It is clear no specialized training was

given nor any effort made by the Navy to screen personnel

best suited for such duty. Men were assigned to security

duty at random and if any instructions were received that

they were given ‘‘on the job.’’ These were far from

adequate. Furthermore, as Lt. Commander Feeney, the

Security officer in charge, stated proper training requires

formal schooling.

Taylor testified that though assigned to the security

section for approximately 16 months he received no special

or formal instructions as to the conduct of his duties and

more especially as to the use of a night stick. However,

he did acknowledge that in conversation with other men

it was stated it should never be used to strike any bony

part of the body.

The night stick is a typical police club made of a round

solid piece of wood 22 inches long. It is of such obvious

rigidity and weight one needs no expertise to know that

using any reasonably hard force in swinging such an instru-

ment against a human skull will fracture it.

Applying these facts to the plaintiff’s formal allegations

as embodied in the complaint plaintiff asks this Court to

decide whether, ‘‘The defendant, through its servants and

agents, failed to use due care and negligently failed to

provide the proper protection for the decedent while he

was under arrest and in custody of the security police,’’

and whether, ‘‘The defendant, through its servants and

A-15

agents, failed to use due care and negligently and carelessly

permitted the said Curtis C. Taylor to carry ou* his attack

on the decedent while the said decedent was unarmed and

unable to protect himself. The senior petty officer and the

officer in charge were negligent in failing to take appro-

priate steps under the circumstances to prevent the attack

by the said Curtis C. Taylor when appropriate and timely

action by the senior petty officer and the officer in charge

would have prevented the said attack upon the decedent.’’

There is a further allegation that Taylor may have had

racist tendencies. This need not be considered for lack of

any supportive evidence.

I do find that Taylor used unreasonable and excessive

force in subduing James and this resulted in James’ death.

I find that Goodchild could have stopped or mitigated

Taylor’s blows after the second blow was given. I accept

as true Goodchild’s reason for not interfering: deference

to a ranking officer.

What is exceedingly difficult is in determining whether

government negligence caused the conditions which caused

the death. There is little evidence of direct causal connec-

tion between the asserted negligence of the United States

and the death. Indeed, I suppose such a causal connection

is quite difficult to firmly establish. Although it seems

that any person of reasonable intelligence would know

that serious injury would result from hitting a man over

the head with a night stick, I find it vexing that no training

was given the security personnel. Taylor lost control of

himself. Had he been trained he might have retained his

self-control or used some non-lethal method of expressing

his rage. In an age when police forces are often trained

in how to properly respond to confrontations with abusive

demonstrators, I must wonder what effect such training

would have had on Taylor’s behaviour.

A-16

Further, I find it difficult to know what responsibility

to assign to the government for one of its military per-

sonnel not stopping blows rendered by another of its

military personnel out of deference to rank, even though

he knew the blows were going too far. Neither Taylor nor

Goodchild acted with malice or in bad faith. Yet a man

is dead.

Because of my disposition of this case, I make no further

findings.

Conclusions of Law

[1] In Feres v. United States, 340 U.S. 135, 146, 71

S.Ct. 153, 159, 95 L.Ed 152 (1950), the Supreme Court held

that ‘‘the Government is not liable for injuries to service-

men where the injuries arise out of or are in the course

of activity incident to service.’? However harsh the results

of applying the Feres doctrine to particular cases may be,

Feres is still the law and must be applied here.

Plaintiff has argued that the Feres doctrine has been

seriously eroded by subsequent Supreme Court decisions,

namely United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850,

10 L.Ed.2d 805 (1963) ; Indian Towing Co. v. United States,

350 U.S. 61, 76 S.Ct. 122, 100 L. Ed. 48 (1955), and United

States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139

(1954).

[2] United States v. Muniz, supra, held that an inmate

may sue to recover damages from the Government for

personal injuries sustained during confinement in a federal

prison by reason of the negligence of a government em-

ployee. The Government had argued that the Court should

imply an exception to the F.T.C.A. for inmates’ suits as it

had done for military suits in Feres v. United States, supra.

The Court found that the reasons underlying the Feres

decision were not applicable to inmates’ suits; that is:

‘*(1) the absence of an analogous or parallel liability,

on the part of either an individual or a State;

A-17

no individual has power to mobilize a militia,

no State has been held liable to its militiamen;

(2) the presence of a comprehensive compensation

system for service personnel ;

(3) the dearth of private bills from the military;

(4) the distinctly federal relationship of the soldier

to his superiors and the Government, which

should not be disturbed by state laws; and

(5) the variations in state law to which soldiers

would be subjected, involuntarily, since they

have no choice in where they go.’’

347 U.S. at 159, 83 S.Ct. at 1856.

Short shrift only need be made of plaintiff’s argument that

the facts of the instant case fall within Muniz and not Feres.

The decedent James was a serviceman who had just been

placed under arrest by military security personnel on a

military installation. Cf. Shaw v. United States, 448 F.2d

1240 (4th Cir. 1971).

While the first reason for the Feres holding set .orth in

Muniz may well have been undermined by Indian Towing

Co., supra, I do not find this to be the most important of

the rationales for Feres. Of somewhat more weight is the

focus thrown on the presence of an alternative compensa-

tion system by United States v. Brown, supra. On the

facts of the case at thar, the alternate compensation system

has provided but a paltry remedy. Mrs. James received a

little more than $1,000 for the death of her son in a govern-

ment ‘‘gratuity’’ payment.’

What plaintiff has been unable to counter is the concern

in Feres over the unique relationship of a serviceman to

his superiors. Plaintiff has argued that there were no

significant military discipline interests involved in the facts

1This does not include the monies she received as beneficiary

under her son’s military life insurance policy.

A-18

of this case. In Hall v. United States, 451 F.2d 353 (1st

Cir. 1971), the First Cireuit Court of Appeals rejected the

argument that Feres is inapplicable in any case where

military discipline is not involved. The argument as to

discipline interests is irrelevant.

The contention that Feres has been seriously eroded has

often been made and often rejected. See Schwager v. United

States, 326 F.Supp. 1081 (E.D.Pa.1971). As to the appli-

cability of Feres to the facts of the instant case, the fact

that James was on leave does not distinguish Feres. James

was on the military installation and under the jurisdiction

of military security officers. ‘‘Even if a soldier is on leave

or off duty .. . if the soldier is injured while under military

jurisdiction, then he will be barred from suing the Govern-

ment.’’? Herreman v. United States, 332 F.Supp. 763, 766

(E.D.Wis.1971). See also Archer v. United States, 217

F.2d 548 (9th Cir. 1954); Hale v. United States, 334 F.

Supp. 566, 570 (M.D.Tenn.1970) ; Coffey v. United States,

324 F.Supp. 1087 (S.D.Cal.1972), affd., 455 F.2d 1380 (9th

Cir.1972).

[3] While on the Quonset Point Naval Air Station,

decedent James was apprehended by naval security person-

nel for causing a public disturbance. He was arrested and

taken to the base security office. He was under orders and

about to be taken to the base dispensary for a sobriety test

when the incident from which his injuries came occurred.

On these facts I find that James injuries arose out of or

were in the course of activity incident to service and that

recovery against the government under the Federal Tort

Claims Act is barred.

Because I find Feres to apply to the instant case, I do

not reach the issues of whether the assault and battery

exception to the F.T.C.A., 28 U.S.C. § 2680(h), or the

discretionary function exception to the F.T.C.A., 28 U.S.C.

§2680(a), would deny recovery under the F.T.C.A. here.

A-19

Cf. Gibson v. United States. 457 F.2d 1391 (3d Cir. 1972).

Nor do I reach the question of whether Rhode Island law

recognizes a cause of action against a government in negli-

gence for failure to adequately train and control a police

force,? assuming Rhode Island law to provide the relevant

standard under 28 U.S.C. § 2674, but cf. United States v.

Muniz, supra. 374 U.S. 164-166, 83 S.Ct. 1850.

I hold that the Feres doctrine bars recovery under the

Federal Tort Claims Act in this vase. This holding gives

me little pleasure. An injustice has been done in this case

and it ought to be remedied.

Following the trial in this matter, the Court discussed

with counsel for both parties the possibility that the doc-

trine of Bivens v. Six Unknown Fed. Narcotics Agents,

403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 473 (1971) would

provide a remedy based on the Constitution to this plaintiff.

The Court asked if the parties would object to it seeking

the assistance of an amicus skilled in federal jurisdiction

and constitutional law. The United States objected and no

amicus brief was sought. Strasser v. Doorley, 432 F.2d

567, 569 (1st Cir. 1970).

In Bivens v. Six Unknown Fed. Narcotics Agents, supra,

the Supreme Court held that a violation of the Fourth

2 Other jurisdictions have recognized such a cause of action:

Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1972),

rev’d on other grounds sub nom District of Columbia v. Carter,

409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613; Thomas v. Johnson,

295 F.Supp. 1025 (D.D.C. 1968) ; Peer v. City of Newark, 71 N.J.

Super, 12, 176 A.2d 249 (1961) ; McAndrew v. Mularchuk, 33 NJ.

172, 162 A.2d 820 (1960); Peters v. Bellinger, 22 Ill.App.2d 105,

159 N.E.2d 528 (1959); Meistinsky v. New York, 309 N.Y. 998,

132 N.E.2d 900 (1956); Fernelius v. Pierce, 22 Cal.2d 226, 138

P.2d 12 (1943). But ef. Davidson v. Kane, 337 F.Supp. 922 (E.D.

Va.1972) ; Collins v. United States, 259 F.Supp. 363 (E.D.Pa.1966).

Some support for such a cause of action may be found in the

Restatement of Torts, 2d, section 319 and section 307. Generally,

see II. Greenstone, Liability of Police Officers for Misuse of Their

Weapons, 16 Cleve.-Mar.L.Rev. 397.

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Amendment right to be free from unreasonable searches

and seizures by a federal agent acting under color of his

authority gave rise to a cause of action for damages based

upon the unconstitutional conduct. The absence of a statu-

tory cause of action for damages created by the Congress

for this misconduct, did not, the Court held, prevent a

federal court from providing a common judicial remedy,

that of damages, for an invasion of Fourth Amendment

rights. Mr. Justice Harlan, concurring in the judgment

of the Court, thought that federal courts do have the power

to award damages for violation of constitutionally pro-

tected interests but that this power is derived from the

general federal question jurisdictional grant to the federal

courts, 28 U.S.C. § 1331.

It had seemed to this Court that it could be argued that

the application of unreasonable force by an untrained

government police officer resulting in the death of one in

custody could constitute a violation of the Fourth Amend-

ment prohibition on unreasonable seizure, see Carter v.

Carlson, supra, 447 F.2d at 363; of the Eighth Amendment

procription against cruel and unusual punishment, see

Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972); and of

the Fifth Amendment mandate against the deprivation of

life without due process of law. Such claims might be within

the scope of the Bivens’ rationale. See United State ex

rel. Moore v. Koelzer, 457 F.2d 892 (3rd Cir. 1972).

The protection of liberty, life, and property offered by

the Fourth and Fifth Amendments is basic to our consti-

tutional jurisprudence. These protections are found in the

constitutional tradition of English law, which formed the

background for our own Constitution, and can be traced

back to the Magna Charta. Clause 39 of the Magna Charta

provided that

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‘*No man shall be in any sort destroyed unless it

be by the verdict of his equals, or according to the

law of the land.’’

Coke’s Second Institute. Commentary on the

Magna Charta, published in 1642 by order of the

House of Commons, in Pound, The Development of

Constitutional Guarantees of Liberty 148 (1957).

It would be peculiar indeed if Courts were able to imply

remedies for statutory rights in securities laws, see J. I.

Case v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423

(1964), but unable to provide an ordinary judicial remedy

for invasion of rights protected by the supreme law, the

Constitution, and basic in our scheme of liberties. See Katz,

The Jurisprudence of Remedies: Constitutional Legality

and the Law of Torts in Bell v. Hood, 117 U.Pa.L.Rev. 1

(1968).

[4,5] While money damages are indisputably among

th. traditionally available judicial remedies, it is true that

the common law did not recognize actions for wrongful

death. If, as Bivens holds, the source of the right sued

upon is the Constitution, I would find it of little conse-

quence whether in non-constitutional areas the cause of

action is created by the legislature or existed at common

law. The Constitution itself is silent about causes of action,

yet must have implicitly meant for there to be remedies

for violations of protected rights. See Hill, Constitutional

Remedies, 69 Col.L.Rev. 1109, 1154 n. 193 (1969). Thus,

I would find the fact that this is a wrongful death action

to be no impediment to a cause of action for damages based

on the Fourth and Fifth Amendments. What other sort of

action could there be for violation of the constitutional pro-

hibition against the taking of life without due process?

A remedy in damages would be appropriate.

The Bivens Court did not decide the question of the

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power of Congress to override a judicially created remedy,

403 U.S. at 407 n. 7, 91 S.Ct. 1999, or of the power of the

courts to apply a traditional remedy in the face of Con-

gressional restriction. The Supreme Court made no ruling

on the question of immunity defenses, but remanded the

case for further proceedings. Justice Harlan apparently

thought the scope of the defenses available to be primarily

a question of policy, 403 U.S. at 411, 91 S.Ct. 1999, but felt

that a sovereign itself, aside from its agents remained

immune from suit.

[6] If Bivens were to provide a cause of action to this

plaintiff, the question of sovereign immunity in this action

against the United States would be one of considerable

difficulty. While many state courts have abolished state

law doctrines of sovereign immunity, see eg., Bd. of

Cmsrs. of the Port of New Orleans v. Splendour Shipping

& Entertaining Co., Inc., La., 273 So.2d 19, this Court is

not free to abolish the federal doctrine of sovereign im-

munity. Though the federal doctrine has been much crit-

icized as having little foundation in the history of Anglo-

Saxon jurisprudence and little support in public policy

considerations, it has not been abolished by the Supreme

Court. See C. Jacobs, The Eleventh Amendment and Sov-

ereign Immunity (1972).

One commentator has argued that the doctrine of federal

sovereign immunity should not be allowed to bar a claim

based on the Constitution. See Dellinger, Of Rights and

Remedies: The Constitution as a Sword, 85 Harv. L. Rev.

1532, 1554-1559 (1972). Some support for this proposition

might be found by extrapolation from one of the recognized

exceptions to the sovereign immunity doctrine expressed

in Larson v. Domestic & Foreign Commerce Corp., 337 U.S.

682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), that is, that the

doctrine does not apply to cases where officers of the

United States exercised their powers in a constitutionally

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void manner. See Izaak Walton League v. St. Clair, 313

F, Supp. 1312, 1314 (D. Minn. 1970). At least two courts

have been of the opinion that sovereign immunity does

not bar relief against federal officers who violate plain-

tiff’s Fourth Amendment rights, Bivens v. Six Unnamed

Agents, 456 F.2d 1339 (2d Cir. 1972) ; De Masters v. Arend,

313 F.2d 79, 85 (9th Cir. 1963). It might also be argued

that, like the taking of property without just compensa-

tion, the wrongful taking of life requires that some relief

be given under the Constitution. See Malone v. Bowdoin,

369 U.S. 643, 648, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962) ;

United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed,

171 (1882). In this regard I also note that the Court of

Claims is given jurisdiction of claims arising from con-

stitutional torts. 28 U.S.C. 4 1491.

[7] There is no occasion to decide these troubling

issues. Though given ample time and opportunity to do so,

counsel for plaintiff has chosen not to amend the compiaint

to allege a constitutional tort of the Bivens variety. The

complaint pleads only an action based on the Federal Tort

Claims Act. Having chosen to proceed with this as ex-

clusively a F.T.C.A. action, plaintiff is bound by her plead-

ings. For the reason stated within, this action cannot be

heard under the F.T.C.A. Accordingly, it is ordered that

judgment be entered for defendant.

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APPENDIX B

Constitutional Provisions Involved

AMENDMENT IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

AMENDMENT V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual ser-

vice in time of War or public danger; nor shall any person

be subject for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

AMENDMENT VIII

Excessive bail shail not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

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28 U.S.C. § 2674

Liability of United States. — The United States shall

be liable, respecting the provisions of this title relating

to tort claims, in the same manner and to the same extent

as a private individual under like circumstances, but shall

not be liable for interest prior to judgment or for punitive

damages.

If, however, in any case wherein death was caused, the

law of the place where the act or omission complained of

occurred provides, or has been construed to provide, for

damages only punitive in nature, the United States shall

be liable for actual or compensatory damages, measured

by the pecuniary injuries resulting from such death to the

persons respectively, for whose benefit the action was

brought in lieu thereof.