Petition — Zurcher v. Stanford Daily
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Ocronen Term, 1976
N 761484
aum; Zuncnen, individually and as Chief of Police of the City
of Palo Alto, County of Santa Clara, State of Calif
Jimuix Bonanpen, Paut Demewoun, Dowatp Marre
Ricnary Prarpon, all individually and as Police Officers of
the City of Palo Alto, of Santa Clara, State of
California, Loum P. Brnowa, ividually and as District
Attorney for the County of Santa Clara, of California,
and Cra Brown, individually and as Deputy District At.
torney for the County of Santa Clara, State of California,
Petitioners,
Va.
Tun Stanvosp Dany, FPeucrry A. Banemworn, Faro Mann,
Eowaap H. Koun, Ricnaap Lee Garatuouse, Roserr Lirrer-
Max, Hats. Darcy and Sreven G. Unoan,
Respondents.
PETITION POR A WRIT OF CERTIORARI
to the United States Court of Appeals
for the Ninth Circwit
———SS=—_—_—_—=—[—=[=—==[{={["—[_=[=_[zZx[Za=na_—v__=_—_—_—_—_—seey—O—
Ronsert K. Boorn, In.,
City Attorney, City of Palo Alte.
Mamu Norex Taketa,
Senior Assistant City Attorney City of Palo Alto
250 Hamilton Avenve.
Palo Alto, California 9490!
Telephone: (4/5) 329-217)
Metvi.e A. Torr, IN.,
Mevvise A. Torr,
Srernen I. NewTron,
605 Street
— Box 397.
Mountain View. Calitormea 94040
Telephone: (415) 967.7864
Attorneys for Petitioners Zurcher, Bonander,
Deisinger, Martin and Peardon.
PERNAU WALEH PRINTING CO . 068 MISSION OTREET . GAN FRANCISCO CA 84108
Table of Authorities Cited
Cases Pages
Adickes v. 8. H. Kress & Co, 398 U.S. %%% 10
Alyeska Pipeline Service Company v. The Wilderness
ee Ge ee, OE eee bee 11
Bowens v. Knarre, 237 F. Supp. 826 (ND. In 197 10
Bradley v. The Sehool Board of the City of Richmond, 416
I „P00 12, 13. 14
Branzburg v. Hayes, 408 U.S. 660.v;r ccc cnne 7,9
, 7
Derr 000600000 10
Codes
Penal Code:
DMT eee 8
, ...... 3
IRE A ˙—¼m 4. 6, 7, 8
,, . ee J. 4. 6, 7. 8
—
D 2
Civil Rights Aet of 1871, 42 U.S.C, Seetion 1983 2. 5, 9, 10, 11
Civil Rights Attorney's Fees Awards Act of 1976 ....... 5, 6, 11
Other Authorities
Public Law No. 4-559, 90 Stat 2640 (October 19, 1976 4.11
122 Cong. Ree, 17052 (Daily Ed. Sept. 29, 1976) ........ 12
1
Supreme Court of the United States
Octroner Term, 1976
No.
James Zoncnen, individually and as Chief of Police of the City
of Palo Alto, om 5 of Santa Clara, State of Californ
Jimure Bonanpen, 2 Ls wy Donato Martin
and as Police Officers of
he Oly of Pale alte Ocon of Santa Clara, State of
California, Loum P. Brroena, vidually and as District
of California,
and Cra Brown, vidually and as Deputy Distriet At.
torney for the County of Santa Clara, State of California,
Petitioners,
Tue Stanroap Dany, Ferre A. Renan, Peep Mann,
Epwarp H. Kown, Niet an Lex Gararinousr, Roneer Lrrren-
MAN, Hat. Dany and Srevew G. Uncan,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
to the United States Court of Appeals
for the Ninth Circuit
Petitioners respectfully pray that a writ of certio-
rari issue to review the judgment and opinion of the
United States Court of Appeals for the Ninth Cireuit
entered in this matter on February 2, 1977.
OPINIONS BELOW
The February 2, 1977, opinion of the Court of
Appeals, as yet unreported, appears at Appendix A,
infra, pp. 1-6. The three prior opinions of the United
2
States District Court for the Northern District of
California, also reprinted in the Appendix, are re-
ported as follows:
1. 353 F. Supp. 124 (N. D. Cal, 1972); decided
October 5, 1972; propriety of search warrant
and search; appears at pp. 9-36 of Appendix;
2. 366 F. Supp. 18 (N. D. Cal. 1973); decided
August 10, 1973; right to attorneys’ fees; ap
pears at pp. 37-53 of Appendix; and
J. 64 F. R.. 680 (N. D. Cal, 1974); decided July
17, 1974; computation and amount of attorneys’
fees; appears at pp. 55-71 of Appendix.
The judgment of the Court of Appeals was entered
on February 2, 1977. A timely petition for rehearing
and suggestion that rehearing be in bane was denied
on March 28, L977 (App. II. % %, p. 7) The juris
diction of this Court is invoked pursuant to 28 USC
See, 1254061).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. The Civil Rights Act of 1871, 42 USC, See.
1983, provides in pertinent part as follows;
“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected,
any citizen... to the deprivation of any righta,
privileges, or immunities seeured by the Constitu-
tion and laws, shall be liable to the party injured
in an action at law, suit in equity, or other
proper proceeding for redress.”
2. The Fourth Amendment to the Constitution of
the United States provides as follows:
“The right of the people to be secure in their
3. Section 1524 of the Penal Code of the State of
‘California provides in pertinent part as follows:
“A search warrant may be issued upon any of
— —
4 a oe
consist of any item or constitute any evidence
The property or things described in this section
may be taken on the warrant from any place, or
from any person in whose possession it may be.”
4. Section 1528 of the Penal Code of the State of
4
search the person or place named, for the prop-
erty or things specified, and to retain such
property or things in his custody subject to order
of the court as provided by Section 1536.”
5. The First Amendment to the Constitution of
the United States provides in pertinent part as
follows:
“Congress shall make no law.. . abridging
the freedom of speech, or of the press
6. Public Law No, 94-559, 90 Stat. 2640 (October
19, 1976), provides in pertinent part as follows:
“In any action or proceeding to enforce a
provision of sections . . . 1979 [42 USC Sec. 1983]
. of the Revised Statutes, . . . the Court, in
its discretion, may allow the prevailing party
other than the United States, a reasonable attor-
neys’ fee as part of the costs.”
QUESTIONS PRESENTED
1. Does the Fourth Amendment allow only prem-
ises of a criminal suspect to be searched‘ Otherwise
must a subpoena duces tecum be impracticable before
a search warrant may issue? If the Fourth Amend-
ment alone does not impose such requirements, are
they required in conjunction with the First Amend-
ment where photographs of a riot, unobtainable else-
where, are sought by warrant from a student news-
paper !
2. Where a warrant is fair on its face and the
affidavit is sufficient under current statutory and case
law:
(a) Are the police officers who serve the war-
were not set forth in the affidavit?
(b) Is the Chief of Police, who neither knew
the warrant was being sought nor participated in its
execution, liable on a respondeat superior theory?
3. Was it the intent of Congress that the Civil
Rights Attorney’s Fees Awards Act of 1976 be applied
retroactively to services rendered prior to its effective
date? If so, would it be manifestly unjust to so ap-
ply the Act to these petitioners?
STATEMENT OF THE CASE
police officers of Palo Alto, California, were held
liable to a student newspaper and staff members for
service of a search warrant undocumented as to a new
element of probable cause. The premises to be searched
were not those of a known criminal suspect. Failing
this, the district court held, the supporting affidavit
must show why a subpoena duces tecum would be im-
practicable. (App. C, pp. 14, 26.)
The warrant arose from a 1971 riot at a hospital
and was directed to photographs of the demonstration
believed on the Stanford Daily premises and wnobtain-
able elsewhere. This evidence was critical both to
obtaining felony convictions for the injuries and dam-
age inflicted, and to identifying the suspects in the
first instance. (The Daily previously had announced
its intention to destroy such evidence rather than
allow it to be used in criminal prosecutions.)
The warrant and supporting affidavit were adequate
as to format, traditional probable cause, and Califor-
nia law. Summary judgment was granted on the sole
basis that additional facts concerning the impracti-
cality of a subpoena duces tecum were not included
in the affidavit, thereby rendering the warrant in-
valid under the Fourth Amendment. (App. C, pp.
14-26.) The First Amendment aspect of the case was
not essential to the ruling. (App. C, pp. 26-28.)
The five police officers were held in as defendants,
over their objection, because they served the warrant (a
respondeat superior basis in the case of the Chief of
Police). The warrant itself was fair on its face, and
the district court pointed to no misconduct on the part
of the police defendants. Injunctive relief was denied.
(App. C, pp. 35-36.)
The district court awarded $47,500.00 as attorney
fees on an expanded version of the “private attorney
general” theory, a theory disaffirmed by this Court
while the case was being appealed to the Ninth Cir-
cuit. The Ninth Circuit upheld the award by retro-
actively applying the Civil Rights Attorney’s Fees
Awards Act of 1976. (App. A, pp. 46.)
The Ninth Circuit affirmed the district court's
judgment (App. A, pp. 1-6) and denied a petition
for rehearing in bane. (App. B, p. 7.)
7
1. THE EXTRAORDINARY PROBABLE CAUSE REQUIRED BE-
LOW UNREASONABLY BURDENS EFFECTIVE LAW EN-
FORCEMENT AT ALL GOVERNMENTAL LEVELS.
The public importance and far-ranging effect of the
Fourth Amendment issue is clear. The district court
did not, and indeed could not, limit its opinion to the
facts of the case, tie together the Fourth and First
Amendment aspects, or ground its decision on some
peculiarity of California law. The holding is by its
nature unconditional and sweeping: Any warrant is
unconstitutional unless the premises are those of the
suspect or the affidavit shows that a subpoena duces
tecum will be impractical. The Ninth Circuit adopted
this opinion without limitation. (App. A, p. 2.) Thus,
this unprecedented extension of the Fourth Amend-
ment’s probable cause language is made applicable to
the federal government and the states in all warrant
contexts.
The issue was wrongfully decided. As this Court
recognized in Branzburg v. Hayes, 408 U.S. 665, 690,
law enforcement is a fundamental function of govern-
ment. A warrant is an important investigatory tool.
As Mr. Justice Stewart noted in Fuentes v. Shevin,
407 U.S. 67, 93, n.30, a search warrant serves “a
highly important governmental need—e.g., the appre-
hension and conviction of criminals” and “is generally
issued in situations demanding prompt action.” The
decision below, however, will cut back severely the
instances in which a warrant may be employed in
nonsuspect“ situations. (The District Attorney’s
Office for Santa Clara County, California, has esti-
mated that 20 percent of its warrants are of this
variety.)
It is black-letter law that probable cause means
the facts and circumstances warranting a person of
reasonable caution in the belief that seizable items
are in the stated place. No more is required by the
Fourth Amendment on its face or as construed by
this Court. The unprecedented extension of the prob-
able cause language below sets the stage for virtually
warrant-free sanctuaries, Thus, the premises of a
friend, sweetheart, or relative can safely conceal evi-
dence or the ill-gotten gains of the criminal, Even
the criminal’s own abode is a taboo area until formal
suspect status is attached, an unlikely event if a
warrant cannot issue for the evidence linking the
person to the crime.
The decision below clearly is unreasonable. To re-
quire suspect status before evidence establishing such
suspicion can be garnered (as in this case) puts the
proverbial cart before the horse, It bears no dis-
cernible relationship to traditional probable cause:
One’s status vis-a-vis the investigation has little, if
anything, to do with whether the items sought will be
found in the stated place. Furthermore, the necessary
assumption that a nonsuspect will comply with a sub-
poena (or that the government can reasonably be
expected to uncover positive proof to the contrary) is
unsupported guesswork.
It follows that the decision below cannot be upheld
on the basis of the Fourth Amendment. It cannot be
upheld on the more limited First Amendment grounds
either in light of the Branzburg decision, supra, 408
U.S. 665, and related decisions establishing that news-
persons have no special privilege to withhold informa-
tion from the judicial system. By the same token, a
newspaper has no exemption from a narrowly-drawn
warrant grounded upon traditional probable cause. If
the press is required to divulge evidence pursuant to
subpoena, surely evidence also can be obtained by a
warrant embodying the constitutional protections ex-
tended to others and found sufficient for nearly 200
years.
2. SECTION 1983 LIABILITY WAS ERRONEOUSLY EXPANDED
TO INCLUDE PERSONS WITHOUT FAULT OR EVEN IN-
VOLVEMENT IN THE EVENTS GIVING RISE TO THE CIVIL
RIGHTS DEPRIVATION.
In serving the warrant, the police officers neither
acted in bad faith nor knew, or should have known,
that the supporting affidavit was insufficient. (Chief
Zurcher himself had literally no involvement in the
events, not even foreknowledge that a warrant would
be issued.) Nevertheless, these petitioners along with
their co-defendants were held to have violated plain-
tiff’s civil rights. The legal theory for imposing liability
on these petitioners never was articulated.
In effect, Section 1983 liability has been expanded
by applying sub silentio a “no fault” theory allowing
unbridled discretion to hold anyone peripherally in-
volved. The liability in this case was not only declara-
tory relief, but also an attorney fee award of $47,500.00.
This was egregious error, Two elements must be
proven under Section 1983; (1) A deprivation of a
10
constitutional right by the defendant, and (2) that
the defendant acted under color of state law, Adickes
vu. S. H. Kress & Co, 398 U.S, 144. A Section 1983
action must be analyzed in accordance with tort prin-
ciples, See, Riezo v, Goode, 423 U.S, 362, 370-373;
Bowens M, Knazee, 237 F. Supp, 826 (N. D. III. 1975).
In this case, as in others which may follow its lead,
petitioners themselves did not breach any duty owed
to plaintiffs by serving a warrant fair on its face.
The ramifications of the decision below are far-
reaching, Obviously, injustice is done to any person
unnecessarily embroiled in litigation, The injustice is
magnified where, as here, police officers’ records are
irreparably blotted, the unsupported finding having
been made that they deprived others of civil rights.
The injustice is compounded by making such persons
liable for attorney fee awards payable from their own
pockets or passed on to their innocent employers.
The unsceming spectacle of government agents
secondguessing the validity of court orders and refus-
ing to execute the same when in doubt, lest they be
held liable for some inherent error, is more than a
mere possibility now, The result, indeed, is almost
commanded by the decision below,
We also must anticipate that government agents
will be leas inclined to utilize valuable warrants to
avoid the possibility of personal liability for a magis-
trate’s “errors,”
The expansion of Section 1983 liability below by
its nature affects the many diverse situations which
11
can arise under Seetion 1983. The types of situations
in which persons with minimal involvement can be
caught in a Section 1983 net are limited only by one’s
imagination, We submit that the erroneous decision
below must be rectified, It expands Section 1983
liability beyond legislative intent and the bounds of
justice.
5. THE CIVIL RIGHTS ATTORNEY'S FEES AWARDS ACT OF
1976 SHOULD NOT BE RETROACTIVELY APPLIED IN GEN.
ERAL OR IN THIS CASE.
The decision of the Ninth Cireuit recognized that
Alyeska Pipeline Service Company v. The Wilderness
Society, 421 U.S, 240 (1975) did away with the legal
basis for the fee award given to respondents by the
district court, which fees were initially awarded
August 10, 1973,
While the decision of the district court was pend-
ing on appeal, Congress enacted Publie Law No,
4-559, 90 Stat, 2640 (October 19, 1976) authorizing
attorneys fees to the prevailing party in Seetion 1983
cases, The Ninth Cireuit then held that such new law
applied retroactively to the instant case not only from
the standpoint that this case was pending at the time
of enactment, but also for services rendered in the
district court long before the effective date of the
new law,
The Act does not state on its face whether it is to
be applied retroactively, This issue, therefore, is one
of general importance for all Section 1983 cases
pending before enactment of the Act.
12
The decision of the Ninth Cireuit reviewed the
legislative history and found, without adequate basis
therein, that the new law revalidated the fees awarded
for services rendered some three years before the ef-
fective date, The Court pointed to 122 Cong. Ree, 17052
(daily ed, September 29, 1976) for the principle that
the new law would not only operate on cases filed
after its effective date, but would also apply to pending
cases, However, this history also states that the Act
is retroactive only to the extent of pending cases being
capable of fee awards and does not in any way clearly
state that fees should be awarded for services rendered
prior to its effective date, Taking the legislative history
as a whole, it is fairly debatable whether Congress
intended that fees should be awarded at all for such
services.
The decision of the Ninth Cireuit was further in
error in that it did not consider the rule of not
applying new legislation retrospectively where “mani-
fest injustice” would result as discussed in Bradley v.
The School Board of the City of Richmond, 416 US.
696 (1974).
According to Bradley, 416 U.S. at 718, supra, the
court must consider whether applying new law retro-
spectively to pending cases would result in “manifest
injustice” and if so such application should not be
had, In determining if such injustice oecurs, the Court
looks to the (a) nature and identity of the parties,
(h) the nature of their rights and (e) the nature of
the impact of the change in the law upon those rights.
13
Applying the new attorneys fees law to the instant
case clearly results in manifest injustice, The instant
parties are individuals and are not publicly funded
governmental entities or classes of persons as found
in Bradley, The search complained of was a one-time
brief occurrence and was not a day-to-day activity
whereby the parties had an ongoing and frequent re-
lationship, Furthermore, the parties arguably had
equal respective abilities to present and protect their
interests,
As to the nature of the rights of the parties, the pe-
tioners had a strict duty and right to perform the
search that was commanded by the warrant since the
warrant was regular on its face and fully comported
with applicable warrant law at the time the warrant
wae actually issued and the search conducted, In fact,
petitioners would be subject to contempt charges had
they not executed the warrant. At such time, peti-
tioners were not subject to impositions of attorneys
fees for conducting lawful searches and had the right
to perform their duties without such sanction, To
now impose fees upon them for performing duties
legal at the time would be to deprive them of the
right to rely upon law dictating their actions and for
which no sanction existed.
As to the nature of the impact of the change in the
law upon the existing rights of petitioners, it should
be pointed out that the new law presents new and
unanticipated obligations upon these petitioners. For,
how were these police officers to know that by execut-
14
ing a search warrant comporting with existing con-
stitutional standards that they would be violating
any rights of the respondents and that they would be
subject to paying attorneys fees for merely perform-
ing their duties? At the time of the search, no law
existed which proscribed the actions of petitioners in
the execution of the warrant or made them liable for
attorneys fees for obeying a court order, The instant
case is very much different than the Bradley situation
since the school board in Bradley was not conforming
to well known constitutional standards regarding non-
discriminatory publie education and knew or should
have known that it was subject to the imposition of
attorneys fees for its actions. However, these peti-
tioners were conforming to the constitutional stand-
ards known at the time and later became embroiled
in litigation characterized by the district court as be-
ing one of first impression, Clearly, these petitioners
had the right to defend themselves in this case and
to test the declaratory judgment by appeal without
having imputed to them knowledge that their defense
would result in the imposition of attorneys fees under
the private-attorney general theory which by case
history only applied when a defendant did not com-
port with well known constitutional guidelines,
Accordingly, it is clear that manifest injustice would
result to these petitioners if the new law applied
retrospectively to them.
15
Wherefore, petitioners respectfully pray that a writ
of certiorari be granted.
Dated, County of Santa Clara, California,
April 19, 1977.
Respectfully submitted,
Rowexnt K. Hoorn, Jn,
City Attorney, City of Palo Alto.
Maui Nom Takera,
Senior Assistant City Attorney City of Palo Alte,
Me.vitie A. Torr, Ide,
Mona A, Torr,
Sreruen L. Newron,
Attorneys for Petitioners Zurcher, Bonander,
Deisinger, Martin and Peardon,
(Appendices Follow)
. Appendix A
United States Court of Appeals
For the Ninth Circuit
No. 74-3212
—
The Stanford Daily, Felicity A. ny
Fred Mann, Edward H. Kohn, Richard
Greathouse, Robert Letterman, Hall Daily
and Steven G. Ungar,
Plaintiffs- Appellees,
vs.
James Zurcher, individually and as Chief of
APPENDICES : Police of the City of Palo Alto, County of
Santa Clara, State of California, Jimmie
Bonander, Paul Deisinger, Donald Martin, >
and Richard Peardon, all individually and
as Police Officers of the City of Palo Alto,
County of Santa Clara, State of California,
Louis P. Bergna, individually and as Dis-
triet Attorney for the County of Santa
State of California, and Craig
Brown, individual] — as ty District
ty of
ALI for the ta Clara,
State of California,
Defendants-A ppellants. ;
[February 2, 1977
Appeal from the United States District Court
for the Northern District of California
OPINION
Before: Hursrepier and Goovwix, Circuit Judges,
and East,* District Judge
Per CuRIAM:
I
We adopt the opinion of the district court, Stanford
Daily v. Zurcher, 353 F. Supp. 124 N. D. Cal. 1972).
II
We reject appellants’ contention that the issuing
magistrate is the sole proper party defendant. Having
lost in the lower court, the appellants raise this issue
for the first time upon appeal. In this respect, the
argument is at least, untimely. Moreover, we are not
persuaded that it has merit. The appellants are proper
defendants in a suit to declare that action theretofore
performed were illegal and to enjoin them from act-
ing illegally or permitting their subordinates from
engaging in such illegal conduct in the future.’ (Cf.
Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir.
1969); Hernandez v. Noel, 323 F. Supp. 779, 783
(1970) („In a number of recent cases seeking dam-
ages against police officers under the Civil Rights Act,
mnie the Poo, own 1 the defendants
it has been held that no liability exists unless it is
alleged and proved that the officer was either present
at or directed or personally cooperated in the acts re-
lied on for liability . . . . Where injunctive relief is
sought, however, no such rigid requirements ob-
tain.”).)
III
We also reject appellants’ argument that their good
faith in securing what turned out to be an invalid
warrant insulates them from liability. The appellants
rely on the rule that gives public officials a qualified
immunity in damage actions under Section 1983 if
the officials acted in good faith. Extension of this rule
to suits like the present one, seeking injunctive and
declaratory relief, has been rejected by the courts.
We accept the Fourth Cireuit's rationale in Rowley
v. McMillan, 502 F.2d 1326, 1332 (1974) :
.. [T]he immunity rule, whatever its scope,
is grounded upon the inhibitory effect of suits for
money damages. Manifestly, actions for injune-
tive relief do not have that effect. The federal
defendants have cited no case, and we have found
none, which holds that the immunity doctrine
insulates a public official or public employee from
injunctive relief to prevent what would otherwise
be an illega) act on his part.”
(Accord: Hodge v. Hedrick, 391 F. Supp. 91 (E.D.
Va. 1975). See Wood v. Strickland, 420.U.S. 308, 315,
n.6 (1975); National Treasury Employees Union v.
Viron, 492 F.2d 587, 609 (D.C. Cir. 1974); Gouge v.
Joint School Dist. No. 1, 310 F. Supp. 984, 990 (W. D.
4
Wis. 1970); Richmond Black Police Officers Ass'n v.
City of Richmond, 386 F. Supp. 151, 154 (E.D. Va.
1974) ; Saffron v. Wilson, — F. Supp. — (D.. C.
1975 [slip op’n Jan. 2, 1975, No. 75-79]); Safeguard
Mutual Ins. Co. v. Miller, 472 F.2d 732, 734 (3d Cir.
1973).)
IV
The district court awarded attorney’s fees to the
appellees. It applied the then prevailing law permit-
ting such awards based on the private attorney gen-
eral doctrine, and pursuant to the court’s inherent
equitable power. (Z. g., Brandenburger v. Thompson
(9th Cir. 1974) 494 F.2d 885.) While the case was
pending on appeal, the Supreme Court decided
Alyeska Pipeline Service Co. v. The Wilderness So-
ciety (1975) 421 U.S. 240, which severely restricted
the private attorney general doctrine and destroyed
the legal foundation for appellees’ fee award. While
this case was still pending on appeal, Congress passed
the Civil Rights Attorney’s Fees Awards Act of 1976
(the Act“), 1976 U.S. Code Cong. & Ad. News, 90
Stat. 2641 (October 19, 1976), which restored pre-
Alyeska law to cases arising under our civil rights
laws, a category of cases in which attorney’s fees have
been traditionally regarded as appropriate. It reme-
dies gaps in the language of these civil rights laws by
providing the specific authorization required by the
Court in Alyeska, and makes our civil rights laws
consistent.” (Sen. Rep. No. 94-1011, 94th Cong., 2d
Sess. 4 (1976), accompanying S. 2278 (hereinafter
Senate Report”).) (See also id. at p. 4) (“This de-
cision [Alyeska] and dictum created anomalous gaps
in our civil rights laws whereby awards of fees are,
according to Alyeska, suddenly unavailable in the
most fundamental civil rights cases. For instance
fees are allowed in a suit under Title II of the 1964
Civil Rights Act . . . but not in suits under 42 U.S.C.
§ 1983 — — of the Federal Constitu-
tion . ); 122 Cong. Ree. 12163 (daily ed. October
1, 1976) (This bill restores to the courts authority
which they had exercised for years under the private
attorneys general concept.” (remarks of Rep. Fish).)
We are not left to speculate whether Congress in-
tended the Act to apply to attorney’s fee awards in
eases like this one. The Act expressly states that it is
application to §1983 actions like the present case.
And the legislative history is crystalline on the point.
The House Report accompanying the House version
of the same bill states:
In accordance with applicable decisions of the
Supreme Court, the bill is intended to apply to
all cases pending on the date of enactment as
well as all future cases. Bradley v. Richmond
School Board, 416 U.S. 696 (1974).” (H.R. Rep.
No. 94-1558, 94th Cong., 2d Sess. 4, n.6 (1976).)
(See also 122 Cong. Ree. 17052 (daily ed. September
29, 1976) („This application is necessary to fill the
gap created by the Alyeska decision and thus avoid
»The Act provides that it applicable to enforce Section 1979 of
the Revised Statutes. That section has been codified in 42 U.S.C.
— (See H.R. Rep. No. 94-1558, 94th Cong, 2d Seas. 4
the inequitable situation of an award of attorneys’
fees turning on the date the litigation was com-
meneed.” (remarks by Sen. Abourezk)); 122 Cong.
Ree, 12155 (daily ed. October 1, 1976) ( [It would
apply to cases now pending, for the simple reason
that if that were not the case, the award of fees would
depend on the date that the case is filed. I do not
think that is the basis on which a determination is
made. To that extent, it is retroactive. Pending cases
could receive an award of reasonable fees.” (remarks
of Rep. Anderson)); id. at 12160 (remarks of Rep.
Drinan).)
As if this were not enough, the Senate Report cited
the award in this very case as an example of the fee
awards which it approved and which it intended to
authorize in the Act. (Senate Report, supra, pp. 4,
n.3, 6.)
Under these circumstances, no useful purpose would
be served in requiring a remand to the district court
to decide the impact of the Act on the fee awarded
to the appellees. The attorney’s fee awarded by the
district court was valid when it was made, and it was
revalidated by the Act.’ (Cf. Lytle v. Commissioner of
Election (4th Cir. 1976) 541 F.2d 421.)
AFFIRMED.
»The Senate Report, supra, notes that the district court 's opin-
ion in this ease provides the standards by = fees should be
awarded under the Act. (See Senate Report, 6 (‘Tt is in
tended that the amount of fees awarded under "8. 2278 be gov-
erned by the same standards which prevail in other t; of
complex Federal litigation . The appropriate standar
are correctly applied in such cases as en Daily v. Zurcher,
64 F. R. D. 850 N. D. Cal. 1974) . 9
Appendix B
United States Court of Appeals
For the Ninth Cireuit
No. 74-3212
The Stanford Daily, et al., :
Plaintiffs- Appellees,
vs.
James Zurcher, et al.,
Defendants-Appellants. ;
Filed Mar. 28, 1977]
ORDER
Before: HursrepLer and Goopwin, Circuit Judges,
and East,* District Judge
The panel as constituted in the above case has voted
to deny the petitions for rehearing and to reject the
suggestions for a rehearing en banc.
The full court has been advised of the suggestions
for an en bane hearing, and no judge of the court
has requested a vote on the suggestions for rehearing
en bane. Fed. R. App. P. 35(b).
The petitions for rehearing are denied and the
suggestions for a rehearing en bane are rejected.
*Honorable William G. East, Senior United States District
Judge, District of Oregon, sitting by designation.
Appendix C
In the United States District Court
Northern District of California
No, 0-71 912 RFP
The Stanford Daily, Felicity A. Barringer,
Fred Mann, Edward H. Kohn, Richard
Lee Greathouse, Robert Litterman, Hall
Daily and Steven G. Ungar,
Plaintiffs,
Vs.
James Zurcher, individually and as Chief of
Police of the City of Palo Alto, County of
Santa Clara, State of California, James
. : Bonander, Paul Deisinger, Donald Martin,
and Richard Peardon, all individually and
as Police Officers of the City of Palo Alto, >
County of Santa Clara, State of Califor-
nia, Louis P. Be individually and as
District Attorney for the County of Santa
Clara, State of California, Brown,
individually and as Deputy District Attor-
ney for the County of Santa Clara, State
of 2 J. n Phelps, individu-
ally and as Judge of the Municipal Court
of the Palo Alto-Mountain View Judicial
District, Santa Clara County, State of Cal-
ifornia,
Defendants."
[Filed Oct. 5, 1972]
10
MEMORANDUM AND ORDER
This is an action pursuant to 42 U.S.C, § 1983 to
declare illegal and unconstitutional a seareh on April
12, 1971 of the offices of the Stanford Daily, the
primary newspaper on the Stanford University
campus. In addition to declaratory relief plaintiffs,
the Stanford Daily and various members of its staff
further pray for an injunction against defendants,
various state officials restraining them and anyone
acting under their direction
„, from seeking the issuance of, issuing, or
executing any warrant to search the office of
THE STANFORD DAILY, or in the office or
residence of any of its staff members for any
photographs, negatives, films, reporters’ notes,
documents or any other material, whether pub-
lished or unpublished, taken, received, devel-
oped or maintained in the course of efforts to
gather news, by any person who is a staff mem-
ber of THE STANFORD DAILY.”
Jurisdiction is founded on 28 U.S.C. § 1343(d).
Defendants, in their answer to the complaint con—
tend that the April 12 search was lawful in all
respects. In addition defendants Bergna and Brown,
District Attorney and a deputy district attorney for
Santa Clara County, respectively state as follows:
“. . . defendant Bergna, in his official capacity,
and other persons in his office, including defend-
ant Brown, in their official capacity, and that
defendant [magistrate] in his official capacity,
will participate in the seeking of a search war-
rant and in the issuance of the same, in good
ll
faith and in accordance with the applicable pro-
visions of the laws of the State of California,
whenever there is reasonable cause to believe that
there exists property or things to be seized which
consist of any item or constitute any evidence
which tends to show a felony has been committed,
or tends to show that a particular person has
committed a felony; .. .”
(Paragraph 9 of Answer for defendants Phelps,
Bergna, and Brown).
The plaintiffs have moved for summary judment
requesting the relief prayed for in the complaint. For
purposes of that motion presently before the Court
the facts are not in dispute.’
On Friday, April 9, 1971, members of the Palo
Alto Police Department, as well as the Santa Clara
County Sheriff's Department, were called to the
Stanford University Hospital to remove a large
group of demonstrators. After several futile attempts
to have the demonstrators leave peacefully, the police
forced their way through the barricaded offices held
by the demonstrators. While many of the police
entered through a set of doors on the west side, the
demonstrators apparently charged nine officers sta-
tioned on the east side. All nine officers were injured,
some seriously, and the hospital area was severely
damaged. Some furniture and partitions were
destroyed, and telephones were ripped out of the
walls.
DSD
judgment does not include the defendant Municipal Judge.
12
Most of the photographers, reporters, and by-
standers were located at the west end, so that only
two of the demonstrators who assaulted the police
could be identified.
On Sunday, April 11, 1971, photographs appeared
in a special edition of the Stanford Daily, which
indicated that photographers connected with the
Daily had been at the east end of the hospital during
the incident in question.
On Monday, April 12, 1971, based upon the affi-
davit of Officer Richard Peardon of the Palo Alto
Police Department, Deputy Distriet Attorney Craig
Brown of the Santa Clara County District Attorney's
office, obtained a warrant to “make immediate search”
of the premises of the Stanford Daily for:
1) Negatives of films taken at Stanford Uni-
versity Hospital on the evening of April 9, 1971,
showing the Sit-In at the Hospital and following
events.
2) The film used while taking pictures at Stan-
ford University Hospital on April 9, 1971, show-
ing the Sit-In and following events.
3) Any pictures which display the events and
occurrences at Stanford Unversity Hospital on
the evening of April 9, 1971.
(Exhibit A of the complaint), Defendants have sub-
mitted no affidavits, nor have they asserted, that any
member of the Stanford Daily was suspected of any
unlawful participation in the April 9th incident.
The search warrant was executed at approximately
5:45 P.M. that same day by four members of the
13
Palo Alto Police Department. (A member of the
Stanford University Police Force accompanied them
but did not participate in the search). Three of the
officers conducted the search, which lasted approxi-
mately fifteen minutes.
The search was quite thorough. The officers exam-
ined filing cabinets, baskets, and unlocked desk draw-
ers, in executing the warrant. (See affidavits of
Officers Deisinger, Martin, and Bonander), Accord-
ing to the plaintiffs’ affidavits the desks contained,
and the officers were in a position to see notes taken
by reporters in the course of interviews which con-
tained information given in confidence and on the
understanding that the name of the source would
not be disclosed. (See affidavit of Fred Mann at
paragraph 25; affidavit of Don Tollefson at para-
graph 6.) The plaintiffs assert that the officers saw,
scanned or read business and personal correspond-
ence of the Daily and members of its staff. (See p. 2
of plaintiff's brief.) The defendants say that even
though the photographs were mixed among various
notes and letters, they did not read or even sean the
materials. As far as the materials described in the
search warrant were concerned, the officers appar-
ently found only the photographs that had been pub-
lished on April 11th, and no materials were removed
from the offices.
It should also be pointed out that a check of the
Santa Clara County Clerk's records shows that the
Santa Clara County Grand Jury—a body before
which a subpoena duces tecum is returnable—met on
14
Monday, April 12, 1971, at % P.M., two hours after
the warrant executed. (Actually, the records reveal
that the Grand Jury met at 6:00 o'clock P.M. to dis-
cuss administrative matters.)
The basic question in this case is whether third
partics—those not suspected of a crime—are entitled
to the same, if not greater, protection under the
Fourth Amendment than those suspected of a crime,
More specifically, are law enforcement agencies
required to explore the subpoena duces teeum alter-
native before obtaining a search warrant against
third parties for materials in their possession? For
the reasons set forth below the Court holds that third
parties are entitled to greater protection, particu-
larly when First Amendment interests are involved,
It is the Court’s belief that unless the Magistrate has
before him a sworn affidavit establishing proper
cause to believe that the materials in question will be
destroyed, or that a subpoena duces tecum is other-
wise “impractical”, a search of a third party for
materials in his possession is unreasonable per se,
and therefor violative of the Fourth Amendment,
I
At the outset, it should be noted that very few
cases discuss Fourth Amendment protection of third
parties, as distinguished from known suspeets, and
neither the Court nor the parties have come across
any case which discusses the problem of when law
enforcement agencies must use a subpoena duces
tecum rather than a search warrant, Discussion of
15
third party searches in the case law is confined
almost exclusively to the problem of standing to chal-
lenge the legality of the search. See, ¢.g., Alderman
v. United States, 394 U.S. 164 (1969). To be sure,
searches and seizures against third parties have
taken place, but their relative infrequency is per-
haps best reflected in the paucity of cases wherein
the third party has himself challenged the search.
One can offer several explanations as to why there
are no cases directly on point here, but no doubt the
basic reason is that investigative agencies of govern-
ment have utilized the subpoena duces tecum to
achieve the same end: the examination of certain
materials.
On the Fourth Amendment rights of third parties
generally, plaintiffs cite three cases dealing with
warrantless searches of third parties; Newberry v.
Carpenter, 07 Mich. 567, 65 N.W. 530 (1895);
Owens v. Way, 82 S.E. 132 (Ga. Sup. Crt. 1914);
Commodity Mfg. Co. v. Moore, 198 N. V. S. 45 (1923).
Although Newberry could be read to permit a third
party search with a warrant, Owens and Commodity
both indicate that a search of a third party even
with a warrant will not satisfy the requirements of
the Fourth Amendment. In Owens v. Way, the police
arrested one Edwards for the illegal sale of intoxi-
eating liquors, and simultaneously seized a locked
safe which belonged to Way, “on the ground that
the safe, if open, would show that it contained intoxi-
eating liquors which [the poliec] searched to use as
evidence in the trial of Edwards.” 82 S. E., at 133.
16
In holding that the seizure was illegal the Supreme
Court of Georgia declared;
“(T]he power of an arresting officer to take
the property of the defendant, to be used as
evidence of the crime charged against him in the
warrant, is quite different from the taking of
the property of third persons by virtue of no
other process save that of the warrant against
the accused. The constitutional protection against
unreasonable seizure of property would go for
naught, if it should be conceded that an arrest-
ing officer may arbitrarily possess himself of the
property of a third person, taken from the place
of business of such third person, solely upon the
ground that it may be used as evidence against
the defendant in the warrant. We find no
authority which extends the power of an arrest-
ing officer so far. And, indeed, if one with a war-
rant for A., charging him with crime, may go
into the house of B. and take therefrom prop-
erty belonging to B., without other authority
than that it may be used as evidence on the trial
of A., then the constitutional guaranty against
unreasonable seizures would be mere idle words.”
(emphasis added)
82 S.E., at 133.
In Commodity Mfg., which involved a motion to
compel the return of books, papers, and documents
seized from a third party, the N.Y. Supreme Court
stated :
“No case has been cited where the court has
gone so far as to say that property, not an
instrument of a crime, but only evidence of its
17
commission, and which was the property of some
one besides the defendant, could be seized either
under a search warrant or as an incident of the
arrest of defendant.
“I can well believe that property used in the
commission of a crime, even though belonging
to a third party, might properly be seized, and
also that property not used in the commission of
the crime, but containing evidence of the com-
mission of the crime, might properly be seized,
where it is the property of the person accused;
but to sanction the seizure of the property of
innocent persons, or persons not accused, not
used in the commission of the crime, but merely
because they contained evidence of the crime,
would open the door to grave abuse of invasion
of property rights.”
198 N. V. S. at 47.
In support of the proposition that law enforce-
ment agencies must first show that a subpoena duces
tecum is impractical before a search warrant can
issue against a third-party, plaintiffs cite Bacon rv.
United States, 449 F.2d 933 (9th Cir. 1971). In
Bacon the Ninth Cireuit held that an arrest warrant
for a material witness cannot issue unless the judi-
cial officer has by the facts and circumstances as
presented to him “probable cause to believe that it
may become impracticable to secure his presence by
subpoena.” 449 F.2d at 943. Plaintiffs argue by
analogy that if one not suspected of a crime cannot
be arrested unless there is a showing that subpoena
18
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seizures. But historically the right against unlawful
seizures has if anything been more protected, not less
protected, than the right against unlawful arrests.
See Kaplan, “Search and Seizure: a No-Man’s Land
in Criminal Law”, 49 Calif. L.Rev. 474 (1961);
Orfield, “Warrant of Arrest in Summons upon Com-
plaint in Federal Criminal Procedure”, 27 U. Cine.
L.Rev. 1 (1958).
Bacon, then, would seem to compel the rule that no
search warrant against a third party can issue unless
the state makes a showing that a subpoena is imprac-
tical.
Defendants rely on Warden v. Hayden, 387 U.S.
294 (1967), for their proposition that third par-
ties should be treated no differently than suspects.
Warden v. Hayden reversed a series of cases that
prohibits the use of warrants to seize “mere evi-
dence”. The focus in Warden, however, was on what
may be seized, rather than who may be made the sub-
ject of a warrant. The Court made no mention of any
application or exceptions to third parties.
Actually, a close reading of Warden v. Hayden
indicates that the Court was considering only suspects
of a crime when it struck down the “mere evidence”
rule. For example, the basis of the opinion seems
to be that the exclusionary rule adequately protects
Fourth Amendment rights and thus by allowing
“Ciouled u. United States, 255 US. 298 (1921); Boyd v. United
States, 116 U.S. 616 (1886).
21
searches for “mere evidence” would not seriously
jeopardize rights of privacy.
The remedy of suppression, moreover, which
made possible protection of privacy from unrea-
sonable searches without regard to proof of a
superior property interest, likewise provides the
procedural device necessary for allowing other-
wise permissible searches and seizures conducted
solely to obtain evidence of crime.
387 U.S. at 307.
This heavy reliance on the exclusionary rule cer-
tainly suggests that the Supreme Court was consid-
ering only those suspected of a crime when it struck
down the “mere evidence” rule. Note also the discus-
sion, particularly by Mr. Justice Douglas in dissent,
of the Fifth Amendment consideration. Discussions
of self incrimination would seem rather irrelevant if
the Court was considering those truly not suspected
of committing a crime.
II
It should be apparent that means less drastic than
a search warrant do exist for obtaining materials in
possession of a third party. A subpoena duces tecum,
obviously, is much less intrusive than a search war-
rant: the police do not go rummaging through one’s
home, office, or desk if armed only with a subpoena.
And, perhaps equally important, there is no oppor-
tunity to challenge the search warrant prior to the
intrusion, whereas one can always move to quash the
subpoena before producing the sought-after mate-
22
rials. This procedural difference is important. Mis-
takes in the issuanee of a warrant or subpoena have
occurred; motions e and motions to quash
are not uncommon. In view of the differences in
degree of intrusion and opportunity to challenge pos-
sible mistakes, the subpoena should always be pre-
ferred to a search warrant, for non-suspects.
For a variety of reasons the court believes that in
all but a few instances a subpoena duces tecum is
the proper—and required—method of obtaining mate-
rial from a third party.
First, the tremendous value our society places on
privacy, indicates that intrusions should take place
only when “necessary”. The history and importance
of the Fourth Amendment have been well-docu-
mented, and there is no need for further elaboration
in this opinion. See, ¢.g., Mapp v. Ohio, 367 U.S. 643
(1961) ; Weeks v. United States, 232 U.S. 383 (1914).
The intrusion from the execution of a warrant—a
paramount concern of the Founding Fathers—is
simply “unnecessary” in most situations involving
non-suspects, since a “less drastic means” exists to
achieve the same end.
Second, as a historical matter the notion of search
warrants has involved only those suspected of a
crime. See the discussion in Henry v. United States,
361 U.S. 98, 100 (1959), and Kaplan, op. cit., at 475-
477.
“It is only fair to observe that the real evil
aimed at by the Fourth Amendment is the search
itself, that invasion of a man’s privacy which
consists in rummaging about among his effects
to secure evidence against him.”
United States v. Poller, 43 F.2d 911, 914 (2nd Cir.
1930) (opinion of Learned Hand, J.)
Third, if law enforcement agencies were not re-
quired to first explore the subpoena alternative in
third-party situations, a third-party would receive no
meaningful protection against an unlawful search,
and there would be the rather incongruous result that
one suspected of a crime would receive greater pro-
tection against unlawful searches than a third party.
The chief remedy and protection against an unlawful
search for one suspected of a crime is the suppres-
sion of the illegally obtained evidence. See Mapp v.
Ohio, 367 U.S. 643 (1961); Elkins v. United States,
364 U.S. 206 (1960); Silverthorne Lumber Co. v.
United States, 251 U.S. 385 (1920); Weeks v. United
States, 232 U.S. 383 (1914). See also People v.
Cahan, 44 Cal. 2d 434 (1955). Although the “exclu-
sionary rule” may provide some vindication for a
suspect whose Fourth Amendment rights have been
violated, its basic purpose is to deter law enforce-
ment from conducting unlawful searches. . to com-
pel respect for the constitutional guaranty in the only
effectively available way—by removing the incentive
to disregard it.” Elkins v. United States, supra, at
217. No other meaningful “remedy” or “protection”
exists for the victim of an unlawful search:
“The experience of California that . . other
remedies have been worthless and futile is but-
tressed by the experience of other States. The
24
obvious futility of relegating the Fourth Amend-
ment to the protection of other remedies has,
moreover, been recognized by this Court
Mapp v. Ohio, supra, at 652.
The Court in Mapp stated that without the exclu-
sionary rule,
„. . . the assurance against unreasonable fed-
eral searches and seizures would be ‘a form of
words,’ valueless and undeserving of mention in
a perpetual charter of inestimable human liber-
ties, so too, without that rule the freedom from
state invasions of privacy would be so ephemeral
and so neatly severed from its conceptual nexus
with the freedom from all brutish means of coere-
ing evidence as not to merit this Court’s high
regard as a freedom ‘implicit in the concept of
ordered liberty’.”
367 U.S. at 655.
Nor does it matter that the police have bothered
to obtain a warrant if it is defective; the exclusion-
ary rule applies to searches authorized by defective
warrants as well. See, e.g., Aguilar v. Teras, 378
U.S. 108 (1964), United States v. Anderson, 453 F.2d
174 (9th Cir. 1971).
A third-party, however, does not have the protec-
tion or deterrent of the exclusionary rule, for by
definition he is not about to be tried for a crime.
Unlike one suspected of a crime the third party has
no meaningful remedy or protection against an unlaw-
ful search, with or without a warrant, and an addi-
tional safeguard is necessary to assure that his
25
Fourth Amendment rights are not trampled. That
protection is the obligation of law enforcement to
use a subpoena duces tecum unless it is shown,
through sworn affidavits,” that is is impractical to
do so.
Nor should it matter that the law enforcement
agencies did in fact go to the magistrate, or that
probable cause did in fact exist to believe that a sub-
poena was impractical unless such probable cause was
established by sworn statements to the magistrate.
Courts do not excuse searches with defective war-
rants even if probable cause could have been demon-
strated before the magistrate, but in fact was not.
See, e. g., Chapman v. United States, 365 U.S. 610
(1961), Aguilar, supra. See also Anderson, supra.
Procedural safeguards must be followed.
Thus, in order to assure that third-parties will
have some meaningful protection against unlawful
searches—protection that suspects now receive with
the «xclusionary rule—the subpoena duces tecum
alternative should be required.’
A fourth factor supporting the requirement for the
subpoena duces tecum alternative unless “impracti-
cal“ is the Bacon case, discussed above. Bacon v.
United States, 449 F.2d 933 (9th Cir. 1971). Rule
See U.S. v. Anderson, supra.
L
exclusionary rule a total deterrent” 4 4, -44-
dures, however, do afford some meaningful protection.
26
46(b) of the Federal Rules of Criminal Procedure
and 18 U.S.C. § 1349 state quite clearly that a mate-
rial witness cannot be arrested or detained unless a
subpoena is impractical.” Although Rule 46(b) and
§ 1349 are both silent on the requirement of probable
cause, the Ninth Circuit, citing Terry v. Ohio, 392
U.S. 1 (1968), held that the Fourth Amendment
requires a showing of probable cause to believe that
a subpoena is impractical.’ As plaintiffs have argued,
if one not suspected of a crime cannot be arrested
unless there is probable cause to believe that a sub-
poena is impractical, one not suspected of a crime
cannot be searched unless there is probable cause to
believe that a subpoena duces tecum is impractical.”
All of these factors compel the following rule: law
enforcement agencies cannot obtain a warrant to con-
duct a third-party search unless the magistrate has
probable cause to believe that a subpoena duces tecum
is impractical. Any evidence that a subpoena is im-
practical must be presented in a sworn affidavit if
the magistrate is to rely on it. United States v.
Anderson, 453 F.2d 174 (9th Cir. 1971). In other
words, even if facts and circumstances do exist that
establish probable cause to believe a subpoena is im-
In fact a majority of state courts that have considered the
question have held that in the absence of statutory authority
there is no common-law power to detain witness at all before
actual disobedience of a subpoena. See Carlson, ‘‘Jailing the
Innocent: The Plight of the Material Witness,’’ 55 lowa L.Rev.1,
20-25 (1969).
449 F.2d at 942.
On the point that searches historically have been more pro-
tected than arrests, see generally, Kaplan, op cit.
27
practical, they must be set forth in a sworn affidavit
or else the warrant is defective.
Obviously, one can envision numerous situations
where a subpoena might or might not be “impracti-
cal“, and the Court will not attempt to consider them
all specifically at this time. Several factors, however,
should be emphasized for consideration by the magis-
trate. First, the mere failure to respond to a sub-
poena duces tecum should not, without more, be
grounds for issuing a search warrant. The normal
remedy for failure to respond to a subpoena is a
contempt proceeding. See Rule 17(g) of Fed. Rules
of Crim. Proc. and Rule 45(f) of the Fed. Rules of
Civ. Proc. See, generally, Wright, Federal Practice
and Procedure, § 279. Thus, even if the subpoena has
been disregarded, it is questionable if a magistrate
should still issue a warrant.”
Second, a subpoena can be impractical if the
destruction of evidence is threatened. Although Cal.
Pen. Code § 135 makes the destruction of evidence
a crime, the criminal statute alone may not provide a
sufficient deterrent if the destruction of materials is
truly imminent. A court certainly possesses the power
to issue a restraining order where it is presented with
evidence that the materials are about to be taken
from the jurisdiction or their destruction is immi-
nent. See Demich, Inc. v. Ferdon, 426 F.2d 643 (9th
Cir. 1970), vacated and remanded on other grounds,
“Mancusi v. DeForte, 392 U.S. 364 (1968) unfortunately does
not settle whether (or when) a search warrant can issue if a
subpoena is di
401 U.S. 990 (1971); Bethview Amusement Corp. v.
Cahn, 416 F.2d 410 (2nd Cir. 1969). Only if it
appears that the materials will be destroyed or
removed from the jurisdiction despite the restrain-
ing order, or that there simply is not time to obtain
a suitable order, should a magistrate find probable
cause to believe that a subpoena is impractical.
Another important factor the magistrate should
consider is whether First Amendment interests are
involved. Defendants, citing the United States Su-
preme Court case Branzburg v. Hayes, et al., 70-85,
and companion cases In the Matter of Paul Pappas,
70-94, and United States v. Carl Caldwell, 70-57, seem
to argue that newsgathering is not protected by the
First Amendment, and that newspapers, reporters,
and photographers therefore have no greater Fourth
Amendment protections than other citizens. (Defend-
ants’ Memorandum at p. 7). Both the premise and
conclusion are incorrect, however. Branzburg clearly
states that the First Amendment protects newspapers
in their newsgathering functions:
“We do not question the significance of free
speech, press or assembly to the country’s wel-
fare. Nor is it suggested that newsgathering does
not qualify for First Amendment protection;
without some protection for seeking out the
news, freedom of the press could be evicerated.”
(Slip Opinion at p. 15)
“Finally, as we have earlier indicated, news gath-
ering is not without its First Amendment protee-
tions, and grand jury investigations if instituted
or conducted other than in good faith, would pose
wholly different issues for resolution under the
First Amendment.
Official harassment of the press undertaken not
for purposes of law enforcement but to disrupt
a reporter's relationship with his news sources
would have no justification. Grand juries are
subject to judicial control and subpoenas to mo-
tions to quash. We do not expect Courts will for-
get that grand juries must operate within the
limits of the First Amendment as well as the
Fifth.”
(Slip Opinion, at p. 42)
Mr. Justice Powell, whose vote was necessary to
the Court’s judgment, emphasized in his concurrence
the “limited nature of the Court’s holding”.
“The Court does not hold that newsmen, sub-
poenaed to testify before a grand jury, are with-
out constitutional rights with respect to the gath-
ering of news or in safe-guarding their sources.
Certainly, we do not hold, as suggested in the
dissenting opinion, that state and federal author-
ities are free to “annex” the news media as ‘an
investigative arm of government’. The solicitude
repeatedly shown by this Court for First Amend-
ment freedoms should be sufficient assurance
against any such effort, even if one seriously
believed that the media—properly free and
and untrammeled in the fullest sense of the terms
—were not able to protect themselves.
Indeed, if the newsman is called upon to give
information bearing only a remote and tenuous
relationship to the subject of the investigation,
or if he has some other reason to believe that his
testimony implicates confidential source relation-
ships without a legitimate need of law enforce-
ment, he will have access to the Court on a mo-
tion to quash and an appropriate protective
order may be entered. The asserted claim to
privilege should be judged on its facts by the
striking of a proper balance between freedom of
the press and the obligation of all citizens to give
relevant testimony with respect to criminal con-
duct. The balance of these vital constitutional
and societal interest on a case-by-case basis
accords with the tried and traditional way of
adjudicating such questions.” (Slip Opinion, at
P. 1)
While conceding that some First Amendment
harms might take place if reporters can be compelled
to testify before a grand jury, the Court believed
that the societal interest in unimpeded grand jury
investigations is a “compelling state interest”, suffi-
cient to outweigh the First Amendment harms. (Slip
Opinion, at p. 24) The majority emphasized repeat-
edly that the basis of its decision was this “compel-
ling state interest” in grand jury investigations.
The other aspect of defendants’ argument—that
newspapers, reporters and photographers have no
greater Fourth Amendment protection than other citi-
zens—is also without merit. The First Amendment
is not superfluous. Numerous cases have held that the
First Amendment “modifies” the Fourth Amendment
to the extent that extra protections may be required
when First Amendment interests are involved. See,
e.g., A Quantity of Books v. Kansas, 378 U.S. 205
31
(1964); Marcus v. Search Warrant, 367 U.S. 717
(1961); Demich, Inc. v. Ferdon, 426 F.2d 643 (9th
Cir. 1960); vacated and remanded on other grounds,
401 U.S. 990 (1971); Bethview Amusement Corp. v.
Cahn, 416 F.2d 410 (2nd Cir. 1969), cert. denied, 397
U.S. 929 (1970). See also NAACP v. Alabama, 357
U.S. 449 (1958). Branzburg does not purport to over-
rule these cases; it fails to even mention them. In
short, one cannot logically read Branzburg to rele-
gate the First Amendment to redundancy.
The First Amendment infringements with searches
of newspapers are quite serious. The majority in
Branzburg was troubled by the uncertainty as to “how
often and to what extent informers are actually de-
terred from furnishing information when newsmen
are forced to testify before a grand jury.” (Slip
Opinion, at p. 27) The threat to the press’s newsgath-
ering ability, however, is much more imposing with
a search warrant than with a subpoena.
1) A reporter or photographer responding to a
subpoena will bring to the grand jury hearing only
those materials mentioned in the subpoena; the police
officers executing a warrant, however, will be in a
position to see notes and photographs not even men-
tioned in the warrant. As is apparent from the af-
fidavits, newspaper offices are much more disorgan-
ized than, say, the average law office; a search for
particular photographs or notes will mean rummaging
through virtually all the drawers and cabinets in the
office. The “indiscriminate nature” of such a search
renders vulnerable” all confidential materials, whether
or not identified in the warrant, and the concomitant
threat to the gathering of news—which frequently de-
pends on confidential relationships“ —is staggering.
2) Unlike the issuance of a subpoena or subpoena
duces tecum, the ex parte issuance and execution of a
search warrant deprives the newspaper and newsman
of that “judicial control” thought so essential in
Branzburg. (See majority opinion at Slip Opinion, p.
42, and concurrence of Powell, J. at p. 2).
3) There is also a possibility that police searches
will jeopardize a newspaper’s credibility and create a
risk of self-censorship. (See Affidavits of Walter
Cronkite, Frank P. Haven, Gordon Manning, and
Gene Roberts.)
Because a search presents an overwhelming threat
to the press’s ability to gather and disseminate the
news, and because “less drastic means” exist to obtain
the same information,” third-party searches of news-
zelt is irrelevant that the police are instructed not to read
or look closely at photographs or notes not mentioned on
warrant because a) it is difficult to imagine how a iceman
searching for a photograph or set of notes will not read or
look closely at items not mentioned in the warrant and b)
the major harm to the press comes with the public knowledge
that the police will be in a position to see con tial material.
“See e. g., Blase Press Subpoenas: An Empirical and Legal
Analysis (1972).
“See Branzburg, supra. On the le drastic means policies
in the First Amendment area, see Shelton v. Tucker, 364 US.
479 (1960); Louisiana ex rel. Gremillion v. NAACP, 366 US.
293 (1961); Note, Less Drastie Means and the First Amendment,
78 Yale L.J. 464 (1969).
F
paper office“ are impermissible in all but a very few
situations. A search warrant should be permitted
only in the rare circumstance where there is a clear
showing that 1) important materials will be destroyed
or removed from the jurisdiction; and 2) a restrain-
ing order would be futile. To stop short of this stand-
ard would be to sneer at all the First Amendment has
come to represent in our society.
Turning now to the April 12, 1971 search, it should
be apparent that the search was unlawful. a) It was
a third-party search; defendants, although given am-
ple opportunity, have submitted no affidavits showing
that any member of the Daily organization was sus-
pected of unlawful participation in the April 9 fra-
eas at the Stanford University Hospital; b) No af-
fidavits were submitted to the magistrate demonstrat-
ing probable cause to believe that a subpoena was im-
practical.”
Defendants, however, contend that even if the April
12, 1971 search was unlawful the court cannot con-
sider the summary judgment question because of two
procedural obstacles: 1) the plaintiffs lack standing
“The Court believes it is unnecessary to consider the situa-
tion when someone connected with the newspaper office is sus-
pected of a crime.
Defendant Craig Brown has submitted to the Court an affidavit
that attempts to show why, in his opinion, a subpoena was “im-
practical”. The affidavit. based mainly on hearsay, does not estab-
lish probable cause to believe that a search warrant was impractical.
Moreover, even if the affidavit did establish probable cause, it was
not submitted to the magistrate; any evidence that probable cause
existed to conclude that a su was impractical must be within
the “four corners of the vits” before the magistrate. See
United States v. Anderson, supra.
34
to question the legality of the search; and 2) the le-
gality of the April 12 search is now a moot question.
Clearly all of the plaintiffs have standing to contest
the legality of the search. See Mancusi v. De Forte,
392 U.S. 364 (1968); Jones v. United States, 362
U.S. 257 (1960); Silverthorne Lumber Co. v. United
States, 251 U.S. 385 (1920).
It is also clear that the legality of the April 12
search is not a moot question. Defendants have main-
tained throughout this entire case that they would
search the Daily pursuant to warrant again should the
same circumstances arise. (See, .., paragraph 9 of
answer of defendants Bergna, Brown, and Phelps.)
Plaintiffs alleges that the April 12 search and the
threat of similar searches in similar circumstances
in the future:
“ . . causes persons participating in meetings,
demonstrations and rallies to refuse necessary
cooperation to THE STANFCRD DAILY re-
porters and photographers thereby making it im-
possible for them adequately to cover the events;
(2) causes persons to to refuse to give confiden-
tial information to STANFORD DAILY report-
ers lest such information be disghos
police; 3) causes THE STANFORD DAIL
photographer and reporters to engage in self-
censorship in order to avoid producing materials
which the police may wish to seize; and (4)
renders THE STANFORD DAILY unable to
maintain notes, files and records, including pho-
tographie records, necessary for the fulfillment of
THE STANFORD DAILY’s journalistic fune-
tion for fear that possession of certain materials
35
will cause the police again to search the offices
of THE STANFORD DAILY.”
The affidavits of the Daily staff clearly document
the undermined confidence in the Daily among fellow
students as a result of this search and note their own
reluctance toward aggressive newsgathering. The con-
tinuing effect of the search is undeniable. (See affi-
davits of Kohn, Lyle, Mann, Tollefson, and Ungar).
Plaintiffs have a substantial stake in the judgment of
this Court. Moreover, because evidence from third
parties not sought to be introduced against the party,
is not subject to a motion to suppress, a ruling that
the present question is moot would deny any effective
review of defendants’ unconstitutional action. No
such ruling is required here. Cf. Sibron v. New York,
392 U.S. 40 (1968).
No factual issues remain with regard to the April
12 search. It was a search of a third-party, and de-
fendants failed to establish probable cause to believe
that a subpoena was impractical. Consequently, plain-
tiffs’ motion for a declaratory judgment that the
April 12 search at the Stanford Daily offices was il-
legal is granted.
Plaintiffs have also moved for an injunction against
similar future searches by defendants. The defend-
ants in this case are the District Attorney of Santa
Clara County, an assistant District Attorney for
Santa Clara County, the Chief of Police for the City
of Palo Alto, and four members of the Palo Alto
Police Force. All are respected members of the com-
36
munity, and each plays an important role in the law
enforcement process. There is no reason to believe
that, after the declaratory judgment concerning the
April 12 incident, defendants will conduct such a
search against the plaintiffs in the future. The court
anticipates that this decision will be honored and that
an injunction is unnecessary. In the unlikely event
that defendants do conduct such a search against
plaintiffs in the future, plaintiffs are free to renew
their motion for a permanent injunction.
Dated, October 5, 1972
s, Robert F. Peckham
United States District Judge
37
Appendix D
In the United States District Court
Northern District of California
No. C-71-912 RFP
The Stanford Daily, et al., !
Plaintiffs,
vs.
4
James Zurcher, individually and as Chief of
Police of the City of Palo Alto, County of
Santa Clara, State of California, et al.,
Defendants. ;
[Filed Aug. 10, 1973]
MEMORANDUM AND ORDER
This lawsuit had its genesis when several members
of the Palo Alto Police Department, acting pursuant
to a warrant, engaged in a search of the offices of the
Stanford Daily, Stanford University’s campus news-
paper. Defendants are members of the Palo Alto
Police Department, the District Attorney for Santa
Clara County, and one of his deputies, each named
individually and in his official capacity. The plaintiff
is the Stanford Daily, an unincorporated association,“
and its student editors.
‘See Fed. Rule Civ. Pro., Rule 17(b); Cal. Code Civ. Pro.
§388(a) (West 1973).
Defendants, throughout this litigation, have main-
tained that the search of the Daily office, although no
one at the Daily was suspected of committing a crime,
was an entirely legal act, and they further maintain
that they would conduct such a search again under
similar circumstances.
I.
Pursuant to 42 U.S.C. § 1983 (1970) plaintiffs
brought suit in this court seeking declaratory relief
and an injunction. On October 5, 1972, this court
ruled, as to those not suspected of a crime, third
parties, that the warrant was insufficient to comply
with the fourth amendment when it appears that there
was available to law enforcement personnel an alter-
native course of conduct which could achieve the same
end in a manner much less intrusive upon the con-
cerns voiced in the fourth amendment.“ In other
words, the court ruled that the law enforcement per-
sonnel must explore the subpoea duces tecum alterna-
tive before obtaining and exectiting a warrant for
the search of those not suspected of criminal activ-
ity.” During the pendency of the litigation, this court
was surprised at the dearth of litigation on the ques-
tion of the fourth amendment rights of third parties.
Td. at 127. One possible explanation was that investi-
gative agencies normally use the subpoena alternative
Memorandum and Order reported 353 F.Supp. 124 (N.D. Cal.
1972); Note, 86 Harv. L. Rev. 1317.
»The court granted declaratory relief only but left upon the
possibility that an injunetion might issue if plaintiffs presented
to the court facts which would indicate that declaratory relief
alone was not sufficient to protect plaintiffs’ rights as declared.
to achieve their objective in examining materials of
third parties.
Another possible explanation is that a defense to
an action for monetary damages under 42 U.S.C.
§ 1983 brought against a law enforcement officer is
that the officer acted in good faith. Pierson v. Ray,
386 U.S. 547 (1967). If a party chooses to vindi-
cate his fourth amendment rights which have al-
legedly been violated by a law enforcement officer,
albeit in good faith, he is relegated to declaratory and
injunctive relief.“ The aggrieved person must be pre-
pared to make the kind of showing which would war-
rant equitable relief. And lastly, for no pecuniary
gain, he is required to engage in extensive litigation
at considerable cost including attorney’s fees, just
for the satisfaction of having a court determine that
the police violated the Constitution, and possibly ob-
taining an injunction if he can show that there is a
real possibility the violation may reoccur.’
It is not surprising that when faced with the costs
of interminable litigation against a city and county
with relatively unlimited resources measured against
the limited satisfaction obtained when and if relief
is finally given, many potential plaintiffs are unwil-
See text accompanying note 19, infra.
f. Bivens v. Sir Unknown Named Agents of the Federal Bu-
reau of Narcotics, 403 U.S. 388, 408 (1971). See also Jackson v.
Ogilvie, 426 F.2d 1333 (7th Cir.), cert. denied 400 US. 833
(1970).
See Note, The Federal Injunction as a Remedy for Unconstitu-
tional Policy Conduct, 78 Vale L. J. 143 (1968).
40
ling to take on the task of “fighting City Hall.” Ata
time when legal costs, particularly attorney’s fees are
rising, third party rights protected by the fourth
amendment, while existing in theory, in practice have
no meaningful effect.
This situation may be contrasted to a criminal de-
fendant, who has a relatively adequate remedy by way
of a supression hearing to determine the legality of
the search. See Mapp v. Ohio, 367 U.S. 643 (1961);
Elkins v. United States, 364 U.S. 206 (1960). The
criminal defendant, unlike the third party, has an
extraordinary incentive to vindicate his fourth amend-
ment right to obviate a successful prosecution against
him. And if he cannot afford counsel, one will be
appointed for him.
The rights expressed in the fourth amendment are
in constant tension with expedient law enforcement.
Almeida-Sanchez v. United States, 41 U.S. L. W. 4970
(June 21, 1973). But it is the job of every citizen
to insure that overzealous law enforcement personnel
do not compromise the high values placed on privacy
in our society. It is important to remember that the
fourth amendment protects all the people, and not
just those suspected of a crime. It would he a eruel
irony if those people who harhored contraband had an
adequate incentive to pursue an effective remedy for
violations of their fourth amendment rights, while
those who engage in entirely legal activity, because
of the economic realities of the cost of attorney's fees
must allow their constitutional rights to go unvindi-
cated.
41
The plaintiffs have moved for an award of reason-
able attorney’s fees. For the reasons which follow,
the motion is granted.
II.
It has been the general view in this country, absent
statutory direction, that attorney's fees are not ordi-
narily awardable as a cost of litigation.“ In England,
the courts have discretion to award a reasonable al-
lowance for attorney’s fees since the court was to
make the prevailing party whole.“
The English rule which awards attorney’s fees as
costs to the plaintiff or defendant, whoever prevails,
also has the effect of promoting settlement. The gen-
erally accepted American view is that recourse to liti-
gation is not wrong, and that the party who does not
prevail ought not be penalized for his resort to the
courts to vindicate his rights.’ It is indeed ironic that
the very purpose of the general American rule, not
to deter litigation, is in many cases having the exact
opposite effect. The inability to get attorney’s fees di-
rectly, or indirectly, through damage awards, has the
effect of deterring many potential plaintiffs from
seeking redress in the courts. See Newman v. Piggie
The American rule was originally adopted when counsel fees
were awarded by courts as a fixed sum of money, pursuant to a
schedule, In a period of rising prices the attorneys successfully
abolished court fixed fees. Goodhart, Costs, 38 Yate L. J. 849, 854
(1929; Note, 77 Harv. L. Rev. 1135 (1964); Enrenzweig, Reim-
bursement of Counsel Fees and the Great Society, 54 Cauir. L. Rev.
792 (1966).
6 J. Moore, Federal Practice 1703.
»Note, 77 Harv. L. Rev. 1135 (1964). Nor are attorney's fees
directly awardable as — Day v. Woodworth, 13 How. 363
(1851); 6 J. Moore, Federal Practice 1704.
42
Park Enterprises, 390 U.S. 400 (1969) (per cur—
iam).“ While legal aid offices” and contingent fee ar-
rangement, where damages would lie,“ have provided
some legal services for those who could not otherwise
afford them, there is no doubt that new methods of
financing legal services to all levels of society must
be explored.” Accordingly many commentators have
questioned the continuing vitality of the American
rule, and its effect on the delivery of legal services.
The Court in Piagie Park intimated no view, nor is the legi
lative history clear as to whether a party who successfully defer -
an action under Title UI of the Civil Rights Act of 1964, §204(4),
42 U.S.C. § 2000a-3 would be a prevailing party. Nor whether if
a prevailing party, different factors might guide a court's discre-
tion. See Northcross v. Memphis Bd. of Ed., 41 U.S.L.W. 3635
(June 4, 1973).
"There are approximately 355,000 attorneys licensed to practice
in the United States, and only 2.500 work for legal services. Pre-
paid Legal Services, transcript, of proceedings of a national con-
ference held by ABA Special Committee on Prepaid Legal Serv-
ices held in Washington, D.C., April 27-29, 1972 at 1. See also
Brief of National Legal Aid and Defe naler Association, Amicus
Curiae in La Raza v. Volpe, 73-1145 (9th Cir., appeal filed
Dee. „ 1972).
A former Director of the Office of Economie Opportunity esti-
mates that legal services meet only about 287% of r people's
needs. Testimony of Frank Carlucei, hearings on HR „ HR. ‘
185, II. R. 357, ete. before the House Committee on Education and
Labor, 92 Cong., Ist Sess. pt.e at 1866-67 (1971).
See J. Falk and S. Polack, Political Interference with Publicly
Funded Lawyer: The CRLA Coutroversy and the Future of Legal
Services, 24 Hast. L. Rev. 599 (1973).
“The principles which underlie the contingent fee arrangement
may have some bearing in determining what amount constitutes
a reasonable attorney’s fee where Congress or the courts 2
for such an award, See Disciplinary Rule 2-106 of the Code of
Professional Responsibility of the American Bar Association.
See McLaughlen, The Recovery of Attorney’s Fees: A New
Method of Financing Legal Services, Ford. I. Rev. 761 (1972):
See Sen. Rep. 93-146 accompanying S. Res 101, 93rd Cong., Ist
Sess. (1973) authorizing a new su 1. 1. of the Senate Ju-
diciary Committee to inquire into, inter alia, new methods of fi-
nancing the delivery of legal services.
43
Many have suggested a liberalization of the strict
American rule.“
III.
To ameliorate the inequities, both Congress and the
courts have made inroads into the strict application
of the American rule. It is not beyond dispute that
federal courts have equitable powers to award attor-
ney’s fees in appropriate cases. Sprague v. Ticonic
National Bank, 307 U.S. 161, 166 (1939). It is also
well established that . . . in the absence of statutory
or contractual authorization, federal courts, in the
exercise of their equitable powers, may award attor-
ney’s fees when the interest of justice so requires.
Hall v. Cole, 41 U.S.L.W. 4658, 59 (May 21, 1973);
Mills v. Electric Auto-Lite, 396 U.S. 375 (1970).
The only question for a district court is then,
whether in the exercise of its equitable powers, the
interest of justice requires that fees be shifted. There
are two parts to this question. First, is this the type
of case in which the court has discretion to award
attorney’s fees as cost? And if so as a matter of the
court’s discretion, is this an appropriate case ?
A. Type of case.
In Sprague v. Ticonie National Bank, 307 U.S. 161
(1939) the Court held that attorney’s fees can he
“Ehrenzweig, supra, Stoebuck, Counsel Fees Included in Costs:
A he — — 38 U. Coro L. Rev. 202 (1966) MeLaugh-
17 .I Why not a Cost of
Litigation? 49, Towa L. Rev. 75 (1963) Note, Attorney’s Fees:
Where Shall the Ultimate Burden Lie? 20 Vax. L.Rev. 1216
(1967); Note, The Allocation Attorney's Fees After Mills v.
Electric Auto-Lite Co., 38 U. Cm. L. Rev. 316 (1971).
H
awarded when the judgment results in a “common
fund” for the plaintiffs or for the class. In Mills v.
Electric Auto-Lite, 396 U.S. 375 (1970), the Court
approved the award of attorney’s fees to shareholders
who succeeded in setting aside a corporate merger.
The Court extended the scope of the common fund ra-
tionale by holding that no pecuniary benefit need be
demonstrated. Jd. at 393. As this court pointed out
in La Raza Unida v. Volpe, 57 F.R.D. 94 (N. D. Cal.
1972), Mills represents both the defensive and affir-
mative use of the Court’s equitable powers. Defensive
to prevent unjust enrichment of free riders and affirm-
ative or offensive to promote the effective implemen-
tation of the Congressional objective of fair and
informed corporate suffrage, Id. at 98.
In Newman v. Piggie Park Enterprises, 390 U.S.
400 (1968), in interpreting the scope of the reason-
able attorney’s fee provision under Title IT of the
Civil Rights Act of 1964, 204(b), 42 U.S.C. § 2000 a-3
(b), the Court found that fees were awardable as
costs “not simply to penalize litigants who deliber-
ately advance arguinents they know to be untenable
but, more broadly, to encourage individuals injured
by racial diserimination to seek judicial relief under
Title II.“ In essence, the Court found, in determin-
ing Congress’s objective, that the general American
Rule, not to award attorney’s fees as costs, was having
the opposite effect from its intent. Far from promot-
ing a judicial determination of rights, at least in the
equitable relief area, the policy of not awarding fees
was an obstacle to a judicial determination of rights.
Mills and Piggie Park touched responsive chords,
and the federal judiciary responded in a myriad of
decisions indicating that where a plaintiff seeks only
equitable relief, that strict application of the Amer-
ican rule no longer makes sense as a policy to promote
access to courts. Hall v. Cole, 41 U.S.L.W. 4658 (May
21, 1973); Northeross v. Memphis Board of Ed., 41
U.S.L.W. 3635 (June 4, 1973); Sims v. Amos, 409
U.S. 936 aff'g. 340 F. Supp. 691 (M.D. Ala. 1972);
Knight v. Auciello, 453 F.2d 852 (1st Cir. 1973); Me-
Enteggart v. Cataldo, 451 F.2d 1109 (1st Cir. 1971);
Gartner v. Soloner, 384 F.2d 348 (3rd Cir. 1967);
Brewer v. School Bd., 456 F.2d 943 (4th Cir. 1972),
cert. denied, 92 S.Ct. 1778; Lee v. Southern Home
Sites Corp., 444 F.2d 143 (5th Cir. 1971); Callahan
v. Wallace, 466 F.2d 59 (5th Cir. 1972); Cooper v.
Allen, 467 F.2d 836 (5th Cir. 1972); Donahue v.
Staunton, 471 F.2d 475, 482 (7th Cir. 1972); Yablon-
ski v. United Mine Workers, 466 F.2d 424 (. C. Cir.
1972), cert. denied, 40 L. W. 3512 (1973); La Raza
Unida v. Volpe, 57 F. R. D. 94 (N. D. Cal. 1972); John-
son v. San Francisco Unified School District, Civ. No.
70-1331 SAW (N.D. Cal. decided Sept. 12, 1972).
Ross v. Goshi, 351 F. Supp. 949 (D. Haw. 1972);
Jinks v. Mays, 350 F. Supp. 1037 (N.D. Ga. 1972);
Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala.
1972); Wyatt v. Stickney, 344 F. Supp. 408 (M.D.
Ala. 1972); NAACP rv. Allen, 340 F. Supp. 703 (M.D.
Ala. 1972); Shull v. Columbus Mun. Separate School
Dist., 338 F. Supp. 1376 (N.D. Miss. 1972): Local
4076 United Steelworkers v. United Steelworkers, 338
46
F. Supp. 1154 (W.D. Pa. 1972); Moore v. Knowles,
333 F. Supp. 53 (N. D. Tex. 1971); Brown v. Ballas,
331 F. Supp. 1033 (N.D. Tex. 1971); Hammond v.
Housing Authority and Urban Renewal Agency of
Lane County, 328 F.Sapp. 587 (D. Ore. 1971); Lyle
v. Teresi, 327 F. Supp. 683 (D. Minn. 1971).
While various rationales have been given for in-
cluding attorney’s fees as costs, the courts are in es-
sence making a judgment that including attorney’s
fees as cost is an additional remedy necessary to ef-
fectuate the congressional underpinnings of a substan-
tial program.
The equitable federal powers to imply remedies
is not new. Act of May 8, 1972, §2, 1 Stat. 276; C.
Wright, Law of Federal Courts, 257 (2d ed. 1970.)"
As Justice Harlan wrote, concurring in Bivens v.
Siz Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971):
“Thus, in suits for damages based on violations
of federal statutes lacking any express authoriza-
tion of a damage remedy, this Court has author-
ized such relief where, in its view, damages are
necessary to effectuate the congressional policy
underpinning the substantive provisions of the
statute. J. I. Case v. Borak, 377 U.S. 426 (1964) ;
Tunstall v. Brotherhood of Locomotive Firemen
d Engineermen, 323 U.S. 210, 213 (1944). Id. at
402.
“Bell v. Hood, 327 U.S. 678 (1946); J. J. Case Co. v. Borak,
337 U.S. 426 (1947); Deckert v. Independence Corp, 311 U.S. 282
(1940); Mitchell v. De Mario Jewelry, 361 U.S. 288 (1960);
Swann v. Board of Ed., 402 US. 1 (1971).
47
The Court in Bivens held that in order to protect
encroachment by federal officers on rights protected
by the fourth amendment, it was necessary to imply
a particular remedial mechanism, that is, suits for
damages.
In J. I. Case u. Borak, supra, the Court“ implied
from what can only be characterized as an ‘exclusively
procedural provision’ affording access to a federal
forum . a private cause of action for damages
for violation of §14(a) of the Securities Exchange
Act of 1934, 48 Stat. 895, 15 U.S.C. § 78n(a).” Bivens,
403 U.S. at 403 n.4. In Mills, the Court found that
the policies expressed by Congress in the same statute
also required that an award of attorney’s fees be made
because this would “provide an important means of
enforcement of the proxy statute.” 396 U.S. at 396.
In Bivens, after recognizing the inherent equitable
power to imply remedies, the late Justice Harlan
passed to the question of whether a damages remedy
would be appropriate. In reaching the conclusion that
implying a damage action is appropriate in the fourth
amendment area, he relied on the fact that no other
alternative remedy was provided to insure the vindi-
cation of the right in question, and that the right
ranked sufficiently high on the social seale that it was
worthy of protection.”
; ized that certain classes of
righ Ir ane have vm
to plaintiffs the additional remedy of fee shifting. See .., 42
U.S.C. § 2000a-3(b) (pub ie accommodations); 42 U.S.C. § 2000
(e)-5(k) ( employment); 42 U.S.C. § 3612(¢) (fair housing).
See also ion Amendments of 1972 § 718, 41 U.S.L.W. 45
48
In Bivens, Harlan concluded that the fourth amend-
ment area was peculiarly suited for judicial supervi-
sion and remedy formulation. Jd. at 405-410. See
Mapp v. Ohio, supra, See also Bell v. Hood, supra.
To the plaintiffs in Bivens the exclusionary rule was
irrelevant and injunctive relief was unlikely. Addi-
tionally he found that the rights protected by the
fourth amendment ranked at least as high on our
social value as the rights of stockholders defrauded by
misleading proxies. Bivens, 403 U.S. at 411. See J.J.
Case v. Borak, supra, giving private damage remedy,
and Mills, supra, awarding attorney’s fees as costs
thereby insuring that the right of action given in J.J.
Case Co., will in fact be brought.
Applying the criteria for the appropriate use of
the court’s equitable power to imply remedies to the
instant motion, it would seem fee shifting is appro-
priate. First, there is in the fourth amendment no
detailed pattern of remedies such that one could fairly
draw the inference that the remedies provided were
complete. See Fleishman Distilling Corp. „. Mater
Brewing Co., 386 U.S. 714 (1967). See also Bivens,
supra. The absence of a “meticulously detailed” pat-
tern of remedies has been one signal that attorney’s
fees may be awarded as costs. Mills, 396 U.S. at 391.
Accord Hall v. Cole, supra; Lee v. Southern Homes,
444 F.2d at 145; La Raza Unida v. Volpe, 57 F. R. D.
at 99.
(June 23, 1972). Compare Opinion of the Court in Hall v. Cole,
supra, with dissent of White, J. arguing that internal labor dis-
—— — not of sufficient publie concern to imply an attorney’s
ee award.
49
Like La Raza, no remedial action can be expected
from public officials, as they are named as defendants
in the action. Moreover, in J.J. Case Co., supra, and
Mills, supra, the Court was not content to rely solely
on public enforcement by the Securities Exchange
Commission for the important rights proclaimed in
the statute.
Additionally, 42 U.S.C. § 1983 and its jurisdictional
concomitant, 28 U.S.C. §1343(3) represents con-
gressional indication that federal courts should use
their equitable powers to insure vindication of the
rights protected by the Constitution and laws from
infringement by those acting under color of state law,
by implying an award of attorney’s fees as costs. Jinks
v. Mays, 250 F. Supp. 1037 (N.D. Ga. 1972). See
Donohue v. Stanton, 471 F.2d 475, 482 (7th Cir.
1972); N. A. A. C. P. v. Allen, 340 F.Supp. 703 (N. D.
Ala. 1972). The raison d’etre of 42 U.S.C. § 1983 is to
encourage the vindication of constitutional rights, to
promote litigation of the rights involved, and to give
the courts leeway to fashion appropriate remedies.
Cf. 42 U.S.C. § 1988.
As to placing a high social order on the rights in
question, there can be no doubt as to the importance
of the fourth amendment. The Court in Almeida-
Sanchez v. United States, 41 U.S.L.W. 4970 (June
21, 1973) recently recalled the words of Justice Jack-
son on his return from the Nurenberg Trials:
These [Fourth Amendment rights], I protest, are
not mere second-class rights but belong in the cat-
alog of indispensable freedoms. Among the dep-
rivation of rights, none is so effective in cowing a
50
population, crushing the spirit of the individual
and putting terror in every heart. Uncontrolled
search and seizure is one of the first and most ef-
fective weapons in the arsenal of every arbitrary
government. Brinegar v. United States, 388 U.S.
160, 180 (Jackson, J., dissenting).
Accordingly this court feels that in equitable suits
to remedy violations of fourth amendment rights of
those not suspected of criminal activity, an award of
attorney’s fees as costs is within the court’s power
and responsibility. Where as here fee shifting is nec-
essary to insure the vindication of important con-
stitutional rights“ and appropriate because of the
inadequate remedies otherwise available, because it is
consistent with a remedy increasingly furnished by
Congress, and because of the high social value placed
upon the rights involved, an award of attorney’s fees
as costs is essential, lest these important rights be
relegated to a mere platitude.
‘It has been argued that the Daily is a clearly identifiable
plaintiff, so that even absent fee shifting these types of plaintiffs,
not representatives of a class, might have sufficient incentive to
litigate the matter. First it must be noted that other courts have
not required class action status as a prerequisite to fee shifting.
See Donohue v. Stanton. 471 F.2d 475 (7th Cir. 1972). Nor is class
action status a requirement under any of the statutory schemes
provided by Congress. See note 16, supra. Second, the Daily was
fortunate enough to have a law professor on the Stanford campus
willing to bring the litigation. But this Court has already indi-
cated its unwillingness to rest the vindication of important rights
on the chance that some attorney, public interest law firm, or
legal aid agency will be willing to represent the plaintiff without
hope of remuneration. La Raza, 57 F.R.D. at 101. See also Id.
at 98 n.6.
51
B. Appropriateness of Fees in This Case.
Having determined that this is the type of case
in which an award of attorney’s fees as costs might be
appropriate, the matter of the exercise of the court’s
diseretion is not difficult.“ Even when no statute is
involved, fees should ordinarily be awarded as costs in
the appropriate type of case, unless there is an affirm-
ative, articulated reason for the denial. Cooper v.
Allen, 467 F.2d 836 (5th Cir. 1972). See Northeross
v. Memphis Bd. of Ed., supra. (statutory authoriza-
tion).
Here counsel for plaintiff effectively represented
his client and aided the court in an area scant with
precedent to guide its decision. Accordingly this
court finds that, this is the type of case in which
the court has discretion to award the fees as costs,
and this is an appropriate case for the exercise of
that discretion.
IV.
Lastly, the defendants argue that they may assert
as defense to the assessment of attorney’s fees as
coss, the legal defense to an action for monetary dam-
ages that the law enforcement acted in good faith and
upon probable cause.” Pierson w. Ray, 386 U.S. 547
(1967); Anderson v. Reynolds, 342 F.Supp. 101 (D.
Utah 1972) (policeman); Ney v. State of California,
439 F.2d 1285, 1287 (9th Cir. 1971); Dodd v. Spokane
Kelly v. Gwinn, 456 F.2d 100 (9th Cir. 1970).
See Bivens v. Sic Unknown Named Agents of the Federal
Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972). (on remand)
52
County, Washington, 393 F.2d 330 (9th Cir. 1968)
(District Attorney in his investigative function).
Where an award of attorney’s fees is made as an
element of the costs of equitable litigation incident to
the vindication, of otherwise unremediable constitu-
tional rights, the fact that a prior action was taken
in good faith would not seem relevant. An award for
attorney fees and an award for damages have histori-
cally been separated. See Day v. Woodworth, 13 How.
363 (1851); 6 J. Moore, Feperat Practice 1704. Un-
like damages an award of attorneys’ fees is not
imposed in any way to penalize, stigmatize, or punish
the defendants for wrongdoing. At this court said in
La Raza, supra:
We cannot emphasize enough that in granting
this motion, the purpose is not to saddle the los-
ing party with the financial burden in order to
punish him, rather we shift the financial burden
in order to effectuate a strong Congressiona! pol-
icy. Accord Mills, 396 U.S. at 396-97. Id. at 102.
Moreover an award of attorney’s fees as cost, at
least in California, will not have the undesirable effect
of hampering zealous law enforcement which so con-
cerned the Court in Pierson, supra. For it is the law
in this state that there is a mandatory duty of the
City Attorney, or the County Counsel to defend the
policemen or the district attorney. Any judgment
against the public official shall be paid by the public
entity which employed the individual, provided that
he was acting within the scope of his employment at
the time. Cal. Gov't. Code § 825, et seq. As such the
action may proceed without any personal involvement
on the part of the individual. As the court said in
Sinclair v. Arnebergh, 224 Cal. App. 2d 595 (1964) :
With such protection afforded the public can
expect that its laws will be zealously enforced
without any hesitation occasioned by consider-
ation of possible personal involvement in defend-
ing resulting litigation. Id. at 597-98.
See also 42 U.S.C. §1988; Hesselgesser v. Reilly, 440
F.2d 901 (9th Cir. 1971) cited with approval in Moor
v. County of Alameda, 41 U.S.L.W. 4627 (May 14,
1973).
Accordingly this court finds that the legal defense
of good faith enforcement of the law, found not to
be abrogated by 42 U.S.C. § 1983, as against an action
seeking monetary damages, has no place here where
equitable relief is sought to declare rights and enjoin
further illegal action. This is especially so in Califor-
nia where the public, and not the individual officer,
will bear the responsibility for litigation and pay any
judgment for attorney’s fees rendered against the
law enforcement personnel. The motion for an award
of reasonable attorney’s fees as costs is granted.
Dated: August 10, 1973
/s/ Robert F. Peckham
Robert F. Peckham
United States District Judge
55
Appendix E
In the United States District Court
Northern District of California
No. C-71-912 RFP (SJ)
The Stanford Daily, et al., )
Plaintiffs,
vs.
James Zurcher, individually and as Chief of >
Police of the City of Palo Alto, County of
Santa Clara, State of California, et al.,
Defendants. :
[Filed Jul. 17, 1974]
MEMORANDUM AND ORDER
On October 5, 1972, this court ruled on plaintiffs’
motion for summary judgment and granted declara-
tory relief which upheld the constitutional rights of
individuals, not suspected of any crime, to be free
from unwarranted police searches and seizures. The
Stanford Daily v. Zurcher, 353 F.Supp. 124 (N. D. Cal.
1972). Subsequently, on August 10, 1973, the court
granted plaintiffs’ motion for an award of reasonable
attorneys’ fees. The Stanford Daily v. Zurcher,
F.Supp. (N. D. Cal. 1973). Now, the court must
determine what amount actually constitutes reasonable
attorneys’ fees.
36
The federal appellate courts, recognizing the dif-
ficulty of weighing the factors relevant to the deter-
mination of reasonable fees, grant federal district
courts wide discretion in setting attorneys’ fees. See,
e.g., Kelly v. Guinn, 456 F.2d 99, 111 (9th Cir. 1972);
Cato v. Parham, 403 F.2d 12, 16 (8th Cir. 1968);
Twentieth Century For Film Corp. v. Goldwyn, 328
F.2d 190, 221 (9th Cir. 1964). However, disttrict
courts’ exercise of this grant of discretionary aut hor-
ity must be kept within certain evidentiary bownds.
See, c. g., Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (5th Cir. 1974). The court must avoid
the Scylla of simply accepting the attorneys’ account
of the value of the legal services which they have
provided. “The court cannot properly fix attormeys’
fees merely by multiplying the hourly rate for each
attorney times the number of hours he worked on the
ease.” Lindy Bros. Bldrs., Inc. of Phila. v. Amertican
N. and S. San. Corp., 487 F.2d 161 (3rd Cir. 1973).
At the same time, the court must avoid the Charylbdis
of decreasing reasonable fees because the attormeys
conducted the litigation more as an act pro bono
publico than as an effort at securing a large monettary
return. Cf. Sims v. Amos, 340 F.Supp. 691 (MI. D.
Ala.N.D. 1972). The rationale of awarding reasson-
able attorneys fees, after all, springs from the meed
for placing the legal defense of certain constitutional
principles and some congressional polictes on an ecjnal
footing with the protection of private interests. Cf.
Bivens v. Sir Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388, 402 (1971); Ver.
man v. Piggie Park Enterprises, Inc., 390 U.S. 400
57
(1968) ; Schaeffer v. San Diego Yellow Cabs, Inc., 462
F.2d 1002, 1008 (9th Cir. 1972). See generally Note,
Allowance of Attorneys’ Fees in Civil Rights Litiga-
tion, 7 Colum. J. L. and Soc. Prob. 381 (1971).
The Ninth Circuit, in Brandenberger v. Thompson,
— F.2d — (9th Cir. March 25, 1974), suggested
that district courts might consider the evidentiary
factors listed in two cases from other circuits in de-
termining reasonable attorneys’ fees.
One case, Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714 (5th Cir. 1974) (concerning attor-
neys’ fees in a Title VII action), lists twelve factors:
the time and labor required; the novelty and difficult)
of the questions; the skill requisite to perform the
legal service properly; the preclusion of other employ-
ment due to acceptance of the case; the customary
fee; the contingent or fixed nature of the fee; the time
limitations imposed by the client or the case; the
amount involved and the results obtained; the experi-
ence, reputation, and ability of the attorneys; the
“undesirability” of the case; the nature of the pro-
fessional relationship with the client; and awards in
similar cases. The Fifth Cirenit’s list does not offer
a useful catalogue of factors which a district court
might consider in setting reasonable attorneys’ fees.
Of course, a district court might not find it possible
to consider all, or most of, the factors in any one
ease. For example, this court notes that the novelty
of the legal issues in this litigation makes it im-
possible to rely on the history of attorneys’ fees
awards in other cases. Also, the Fifth Cireuit’s opin-
ion does not indicate how a district court is to use
the list, how a court is to attach a relative weight to
the different factors in determining an award.
The other case, Lindy Bros. Bldrs., Inc. of Phila, v.
American R. and S. San. Corp., 487 F.2d 161 (3rd
Cir. 1973) (concerning attorneys’ fees in an antitrust
action), suggests, infer alia, that a district court first
determine fees in terms of actual hours worked and
normal billing rates and, then, modify this sum in
light of the contingent nature of success and of the
quality of the attorneys’ work. The Third Circuit’s
approach does present a procedure for ordering the
examination of factors. It thereby complements the
discussion offered in Johnson. But, the approach
might present problems in specific cases. The variable
factors—the contingent nature of success and the
quality of the attorneys’ work—oftentimes will be in-
terrelated. For example, an increase in th: attorneys’
fees because the chances of success (and for fees) at
the beginning of litigation appeared slight is implie-
itly if not explicitly an increase due to the high
caliber of the attorneys’ representation. Thus, con-
sideration of different factors, without recognition of
their overlap, might unintentionally lead to an un-
necessary inflation of the attorneys’ fees award.
This court, following the suggestion of the Ninth
Cireuit, intends to consider many of the factors listed
in Johnson within a modified version of the frame-
work offered in Lindy Bros. Specifically, the court
will consider: the amount of time devoted by the
attorneys to the litigation; the value of the time in
light of billing rates and of the attorneys’ experience,
reputation, and ability; and the attorneys’ perform-
ance, given the novelty and the complexity of the
legal issues in the litigation. This consideration will
be grounded upon the court’s opportunity to view the
attorneys’ work during the course of litigation and
upon the information provided by the parties in their
numerous briefs and affidavits. Fortunately, the court
has access to the detailed, factual information neces-
sary to reach an informed decision on the issue. Cf.
Lindy Bros. Bldrs., Inc. of Phila. v. American H. and
S. San. Corp., supra at 169.
The Time Devoted to the Litigation
Plaintiffs’ attorneys, by affidavits, have itemized
over 750 hours of working time spent on this litiga-
tion. This itemization does not include time spent
either by Anthony Amsterdam, Professor of Law at
Stanford Law School, or by a law student and a law
8 attorneys’ decision to not seek compensation for certain
individual's hours, whatever their motivation, does not lessen their
rden of the reasonableness of the number of hours
y by hd compensation. Their decision may have the
Defendants complain about the amount of time de-
voted to specific projects, such as the formulation of
the complaint, about the use of attorneys for factual
investigations and at depositions, and about the ap-
pearance of more than one attorney at court hearings
and conferences. Clearly, attorneys should not be
compensated for unnecessary work. See Canon 2 of
the Code of Professional Responsibility of the Amer-
ican Bar Association, Disciplinary Rule 2-106. At-
torneys should attempt to minimize duplication of
their efforts. See, e. g., Pacific Coast Agric. Export
Ass’n v. Sunkist Growers, Inc., 1973 Trade Case,
§§ 74,523, at 94,344 (N. D. Cal. 1973); Bowl America
Inc. u. Fair Lanes, Inc., 299 F.Supp. 1080, 1100 (D.
Md. 1969); Advance Business Systems and Supply
Co. v. SCM Corp., 287 F.Supp. 143, 161 (D.Md. 1968).
This court, however, finds that a careful review of
the time records provides no ground for exclusion of
any of the attorneys’ time in calculating reasonable
attorneys’ fees. The facts of the case, the legal issues
involved in its resolution, and arguments advanced
by defendants required the number of hours of time
which plaintiffs’ attorneys expended.’ This conclusion
receives indirect support from the simple fact that
plaintiffs’ attorneys, who had no assurance that at-
torneys’ fees would eventually be granted, had incen-
The large number of hours expended by plaintiffs’ attorneys
was necessitated not only by their claims but also from a need to
counter the defendants’ numerous affirmative defenses to the com-
plaint and various motions. The court does not base its caleula-
tions of a fees award on the assumption that defendants acted in
bad faith or with dubious motives. Rather, the court simply notes
that the strategy adopted by defendants added hours to plaintiffs’
work.
61
tive to minimize rather than maximize the amount of
time spent on the case. Their work on this case nec-
essarily reduced their opportunity for work on other
legal matter for which fees were guaranteed.
Defendants also contend that the attorney time de-
voted to the question of the propriety of awarding
attorneys’ fees should not be counted in setting the
award. This contention does not square with federal
court decisions which make no distinction, in caleu-
lating fees, between attorney hours spent on the merits
and on the issue of counsel fees. E. g., Miller u. Amuse-
ment Enterprises, Inc., 476 F.2d 534, 539 (5th Cir.
1970). The contention, if accepted, would allow par-
ties to dilute the value of a fees award by forcing
attorneys into extensive, uncompensated litigation in
order to gain any fees.
Defendants additionally argue that the attorney
time expended on plaintiffs’ motion for a preliminary
injunction should be excluded from the fees calcula-
tion. This motion, which was made after a declaratory
judgment had been entered and the issue of attorneys’
fees had been resolved, evidently was triggered by
plaintiffs’ fear that a police search of the Stanford
Hospital evidenced defendants’ intention to violate
the spirit if not the letter of the court’s judgment. The
motion was denied by minute order—but only after
defendant Bergna represented to the court that de-
fendants would not engage in searches of the prem-
ises of newspapers. The minute order, it should be
noted, referred to this representation.
Some federal court decisions reason that hours spent
on the litigation of unsuccessful claims should be
62
deducted from the number of hours upon which an
attorneys’ fee award is computed. See Bowl America
Ine. v. Fair Lanes, Inc., 299 F.Supp. 1080, 1100 (D.
Md. 1969); Osborn v. Sinclair Refining Co., 207 F.
Supp. 856, 864 (D. Md. 1962), rev’d and remanded on
other grounds, 324 F.2d 566 (4th Cir. 1963). How-
ever, several recent decisions, adopting a different
tack, deny fees for clearly meritless claims but grant
fees for legal work reasonably calculated to advance
their clients interests. These decisions acknowledge
that courts should not require attorneys (often work-
ing in new or changing areas of the law) to divine the
exact parameters of the courts’ willingness to grant
relief. See, e.g., Trans World Airlines u. Hughes, 312
F.Supp. 478 (S. D. N. V. 1970), aff'd with respect to
fee award, 449 F.2d 51 (2nd Cir. 1971), rev’d on other
grounds, 409 U.S. 363 (1973). One Seventh Circuit
panel, for example, allowed attorneys’ fees for legal
services which appeared unnecessary in hindsight but
clearly were not “manufactured.” Locklin v. Day-Glo
Color Corporation, 429 F.2d 873, 879 (7th Cir. 1970)
(concerning fees for antitrust counterclaims).
Plaintiffs’ attorneys obviously were not manufac-
turing legal services in constructing their preliminary
injunction motion. They did not seeure the full, in-
junctive relief which they originally requested, but
they did obtain a significant concession from defend-
ants as a result of their motion. In the process, they
substantially advanced their clients interests. The
court finds that the attorney time spent on this mo-
tion (approximately 50 hours) should be counted in
determining a proper award.
The Value of the Attorneys’ Services
Plaintiffs’ attorneys, by affidavit, provide informa-
tion concerning their individual billing rates for fixed-
fee services. The attorneys bill their clients at rates
which range from $50 an hour to $65.00 an hour.
This court does not accept the attorneys’ usual bill-
ing rates as definitively fixing their billing rates for
this litigation. This reluctance follows from the
simple fact that attorneys may be leaving the area
of their prefessional expertise in taking on pro bono
publico litigation and that, as a result, their bill-
ing rates should reflect this fact. As an example,
large-firm attorneys who draw $65 an hour for their
specialized knowledge of securities regulation should
not earn the same figure for § 1983 litigation, unless
they have an equivalent type of specialized knowledge
of civil rights litigation. Cf. Johnson v. Georgia High-
way Express, Inc., supra at 717-720; Lindy Bros.
Bldrs., Inc. of Phila. v. American R. and S. San.
Corp., supra at 167.
In the instant case, plaintiffs’ attorneys charge at
rates which, in this court’s experience, compare fa-
vorably with the rates charged by other attorneys in
this area for work involving complex questions of
fact and law. Also, these rates reflect the attorneys’
expertise: each of plaintiffs’ attorneys has had con-
siderable experience with civil rights litigation, and
their hourly rates fairly reflect their experience.
Defendants Bergna and Brown, undoubtedly recog-
nizing the excellent academic and professional back-
grounds of plaintiffs’ attorneys, concede that use of
64
the billing rate of $50 an hour in calculating reason-
able attorneys’ fees would be appropriate. This figure
is only $1.70 an hour less than the average hourly
rate which plaintiffs’ attorneys recommend to the
court.
In light of these facts, the court finds $50 an hour
to be an appropriate average hourly rate for use in
calculating an award of reasonable attorneys’ fees.
Attorneys’ Performance
1. The Contingent Nature of Success
Plaintiffs’ attorneys argue that they assumed this
case on a contingent fee basis. They contend that any
attorneys’ fees award, initially computed on the basis
of number of work hours times the average hourly
billing rate, must be increased to reflect the contin-
gent nature of their recovering any award.
Federal court decisions generally reason that the
amount of any award of attorneys’ fees should reflect
any contingencies which stood between the attorneys
and their deserved fee. E. g., Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 718 (5th Cir.
1974) ; Lindy Bros. Bldrs., Inc. of Phila, u. American
R. and S. San. Corp., 487 F.2d 161, 168 (3rd Cir.
1973); Freeman v. Ryan, 408 F.2d 1204, 1206 (D.C.
Cir. 1969) ; State of Illinois v. Harper and How Pub-
lishers, Inc., 55 F.R.D. 221 (N.D. III. 1972). These
decisions parallel the American Bar Association’s de-
termination that attorneys deserve higher compensa-
tion for contingent than for fixed-fee work. Cf. Canon
2 of the Code of Professional Responsibility of
65
the American Bar Association, Disciplinary Rule
2-106(B)-(8) (1969).
For the attorneys’ standpoint, the contingent fee
insures that counsel are compensated not only for
their successful efforts but also for unsuccessful liti-
gation. Its use allows attorneys—including attorneys
who could not otherwise absorb the costs of lost
cases—to take the financial gamble of representing
penurious clients, since, over the long run, substan-
tial fees awards in successful cases will provide full
and fair compensation for all legal services rendered
to all clients. From the public’s standpoint, the con-
tingent fee helps equalize the access of rich, middle-
class, and poor individuals to the courts by making
attorney decisions concerning representation turn on
an action’s merits rather than on the size of a client’s
income. Courts’ application of the doctrine in the
aid of “private attorneys general” helps attract at-
torneys to the enforcement of important constitutional
principles and significant congressional policies which
might otherwise go unrepresented. Comment, Court
Awarded Attorney’s Fees and Equal Access to the
Courts, 122 U.Pa.L.Rev. 636, 650-652, 708-711 (1974).
Federal courts’ failure to make contingency caleu-
lations in determining fees awards, in contrast, would
discourage many attorneys from accepting pro bono
publico cases by presenting them with the financially
unacceptable risk of wasting hours of work, over-
head and expenses” over a course of successful and
unsuccessful civil actions. Angoff v. Goldfine, 270 F.2d
185, 189 (ist Cir. 1959).
66
Of course, the contingent fee doctrine has its gen-
esis in the type of litigation in which the victorious
plaintiff collects monetary relief from his adversary.
The attorney accepts a case on the promise that he
will share in whatever monies the plaintiff secures.
The size of his share principally depends on the
strength of the case: usually the stronger the case
the smaller the attorney’s share. The genesis of the
doctrine does not preclude its use in the type of liti-
gation in which the plaintiff obtains equitable but not
monetary relief and the court retains the authority to
order defendants to pay for the value of plaintiff's
legal services. The doctrine, after all, does not con-
cern the source of payment for legal services, but
rather the size of the payment. The doctrine simply
suggests that the contingent nature of compensation
be considered in assessing the reasonableness of any
fee.
Plaintiffs’ attorneys correctly label this action as
justifying the application of the contingent fee doc-
trine: at the beginning of the litigation, they could
have expected an award of attorneys’ fees only if
this court ruled in plaintiffs’ favor on the merits,
only if the court ruled an award of fees appropriate,
and only if the Ninth Cireuit, and perhaps the Su-
preme Court, affirmed these determinations. Plaintiffs
attorneys conducted the litigation in the face of these
contingencies, expending a significant number of at-
torneys’ hours and absorbing the necessary costs of
the case without any hope of certain payment.
Admittedly, the attorneys were guaranteed payment
by their clients for some of the hours which they
67
worked. The attorneys accepted the case only after
The Stanford Daily agreed to pay $5,000 plus what-
ever funds which they could raise from interested
third parties. In the end, the attorneys received
$8,500 from their clients. These payments, of course,
were not dependent on the vagaries of the litigation.
However, the attorneys clearly were not guaranteed
payment for most of the hours which they expended.
At the beginning of the litigation, they undoubtedly
realized that full payment for their services depended
on the unforeseeable turns of the litigation process
working in their clients’ favor. In short, the fact that
a fraction of their fees were guaranteed should not
obscure the fact that the remainder was contingent
on their success.’
Clearly, this court must increase the fees award ob-
tained by multiplying the number of work hours by
the average billing rate to reflect the fact that the
attorneys’ compensation, at least in part, was contin-
gent in nature. .
2. The Attorneys’ Work
Plaintiffs maintained this civil action in an attempt
at securing the vindication of important constitu-
tional rights.” The Stanford Daily v. Zurcher, .....
F. Supp.— (N. D. Cal. 1973). Their attempt neces-
68
sarily entailed their attorneys’ construction of com-
plex, and convincing, legal arguments which would
justify the extrapolation of traditional Fourth
Amendment standards to a novel fact situation. They
could not rely solely on the very few cases [which]
discuss Fourth Amendment protection of third par-
ties”; they could not cite to any case which dis-
cusses the problem of when law enforcement agencies
must use a subpoena duces tecum rather than a search
warrant.” The Stanford Daily v. Zurcher, 353 F.
Supp. 124, 127 (N.D.Cal. 1972). Rather, they faced
the task of breaking fresh ground in securing a novel
application of an old constitutional principle.
The novelty of the issues in a case does not auto-
matically increase the number of hours of work which
attorneys must expend. An area of the law which
is barren of precedent may eliminate hours of re-
search and preparation otherwise needed. It may also
necessitate a more time-consuming search for analo-
gous authority.” United States v. Gray, 319 F.Supp.
871, 873 n.2 (D. R. I. 1970). But, novelty often does
transform the practice of law into an art in which
success depends as much as in any other art on the
application of imagination—and sometimes inspira-
tion—to the subject matter.” Woodbury v. Andrew
Jergens Co., 37 F.2d 749, 750 (S.D.N.Y. 1930), quoted
with approval, Sampsell v. Monell, 162 F.2d 4, 6-7
(9th Cir. 1947). This case, in fact, posed this type of
challenge.
Plaintiffs’ attorneys reacted to the challenge in an
admirable fashion: their presentation of issues, both
in written papers and in oral argument was good;
their illumination of the controlling constitutional
principles was excellent; their advocacy of their
clients’ interests was thoughtful. Additionally, the
attorneys reacted well to defendants’ maneuvers, offer-
ing legal research of high quality in response to
defendants’ answer and motions.
This court, in short, notes that plaintiffs’ attorneys
provided excellent legal services and that they, for the
most part, successfully advanced their clients’ inter-
ests. These facts weigh in favor of increasing the
fees award. See George D. Hornstein, Legal Thera-
peutics: The “Salvage” Factor in Counsel Fee
Awards, 69 Harv.L.Rev. 658, 660-661 (1956). How-
ever, another fact suggests restraint in increasing the
award.
Plaintiffs’ attorneys, as noted supra, do not seek
compensation either for the time of Professor An-
thony Amsterdam or for the work of a law student
and a law clerk. The attorneys estimate, in an affi-
davit, that Professor Amsterdam expended not less
than 75 hours on the litigation. The court notes that
his participation in oral argument greatly facilitated
the court’s resolution of some of the complex legal
issues of the case. Also, the court assumes that the
high quality of plaintiffs’ written work can be traced,
at least in small part, to his hours on the case. The
attorneys state that a law student and a law clerk
engaged in substantial work on the litigation and note
that one law student researched the crucial Fourth
Amendment issues which controlled the course of the
litigation. Again, this court assumes that the student
70
and the clerk helped the attorneys assemble their ex-
cellent case.
This court cannot adjust the fees award to reflect
the quality of the attorneys’ work without taking into
account the fact that the award will not go tio some
of the individuals who performed significamt legal
services and who may be partially responsible for the
general excellence of the attorneys’ work. Rather, the
court must adjust the award so that the atttorneys
who actually will share in the award will be ceompen-
sated, as near as possible, only for their contribution
to the litigation. This approach attempts to avoid
any unreasonable enrichment of the attorneys who
ask the court for fees.
With the caveat in mind, the court finds that the
attorneys’ work, and the results which they olbtained
through their work, merit an increase in tine base
figure upon which a reasonable attorneys’ fees. award
is computed.
Conclusion
The court finds that plaintiffs’ attorneys dlevoted
approximately 750 hours to the prosecution of this
action on behalf of their clients and that this: figure
does not reflect the time expended by Professsor An-
thony Amsterdam and by certain other indiwiduals.
The court finds no reason to exclude any of the time
, * *
in determining a reasonable fees award.
The court also find that $50.00 an hour is an appro-
priate average billing rate for use in determiining a
reasonable award.
71
The court also finds that the contingent nature of
compensation, the quality of the attorneys’ work, and
the results obtained by the litigation warrant increas-
ing the base fees figure (hours worked times average
billing rate) in determining the award.
Accordingly, plaintiffs’ attorneys are awarded fees
in the sum of $47,500.
So ordered.
Dated: July 17, 1974
/s/ Robert F. Peckham
United States District Judge
73
Appendix F
United States District Court
Northern District of California
No. C-71 912 RFP (SJ)
— ’
The Stanford Daily, Felicity A. ey pe
Fred Mann, Edward H. Kohn, Richard
Robert Litterman,
Greathouse, Hall Dail
and Steven G. Ungar, y
Plaintiffs,
vs.
James Zurcher, 222 and as Chief of
Police of the City Alto, County of
Santa Clara, 5 of” California, James
Bonander, Paul Deisinger, Donald Martin
and Richard all individually and
as Police Officers of City of Palo Alto,
County of Santa Clara, State of California,
Louis P. Bergna, individually and as Dis-
trict Attorney for the County of Santa
Clara, State of California, Craig Brown,
—
Filed Jul. 23, 1974]
JUDGMENT
This cause came on to be heard on motion of the
plaintiffs for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure, and the
Court having read the pleadings and records on file
74
and considered the affidavits of plaintiffs in support
of the motion and the affidavits of the defendants in
opposition thereto, and the Court having heard the
argument of counsel, and due deliberation having
been had thereon, and the Court having prepared and
filed a Memorandum and Order on October 5, 1972,
granting plaintiffs’ motion for summary judgment,
and the Court having read the pleadings and records
on file and considered the affidavits in support of
plaintiffs’ motion for an award of attorneys fees, and
the Court having heard the argument of counsel, and
due deliberation having been had thereon, and the
Court having prepared and filed a Memorandum and
Order on August 10, 1973, granting plaintiffs’ motion
for an award of attorneys fees, and the Court having
fixed the amount of $47,500 as reasonable attorneys
fees on July 17, 1974,
It Is Hereby Ordered, Adjudged and Decreed that:
1. There is no genuine issue as to any material
fact and that plaintiffs are entitled to judgment as
a matter of law against each and all of the defendants
(other than defendant J. Barton Phelps who was
dismissed with prejudice on December 15, 1972) in
conformity with the Memorandum and Order grant-
ing declaratory relief previously filed by the Court
herein ;
2. Plaintiffs recover from defendants, and each of
them, attorneys fees in the amount of $47,500.00, with
interest thereon at the rate of seven percent (7%)
per annum as provided by law, and that plaintiffs
recover their other costs of suit;
75
3. This judgment shall be without prejudice to the
right of plaintiffs to seek further relief based upon
the declaratory judgment heretofore rendered in this
cause whenever necessary or proper or the right of
plaintiffs to seek further award for such attorneys
fees as are incurred upon any appeal herein.
Dated: July 23, 1974.
/s/ Robert F. Peckham
United States District Judge
16
77
Appendix G
United States District Court
For the Northern District of California
San Jose, California
No. C-71-912-RFP(S8J)
‘The Stanford Daily, et al., 7
James Zurcher, et al.,
Plaintiffs,
vs.
Defendants.
J
To:
[Filed Jul. 25, 1974]
NOTICE OF ENTRY OF JUDGMENT
Anthony G. Amsterdam
Stanford University Law School
Palo Alto, California
Howard, Prim, Smith, Rice & Downs
650 California St.,
San Francisco, 94108
Peter G. Stone
605 Castro Street,
Mt. View, Ca. 94040
William M. Siegel
Shelby Brown Jr.
County Administration Building
70 West Harding Street
San Jose, Ca.
You Are Hereby Notified That on July 25th, 1974
Judgment Was Entered in Favor of Plaintiff in the
Above-Entitled Case.
F. R. Pettigrew, Clerk
By: John B. Pomeroy Jr.
Deputy Clerk-in-charge
San Jose, California
Dated: July 25th, 1974
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.