# Petition — Zurcher v. Stanford Daily > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1773%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 436 U.S. 547 ## Text 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 e Si wag 33 % „. A: : 171 b 45 Hitt 11 N l 11 5 4 1115 H Ii cH Maha ie 1 f tf : 14 1224 28 5 : 21 > 2225 11114½ 1 GE Hehe Sea: 4222 Ee 115 122 Pi f iind 1 112127 f e re 5 Hee ia 10 diye 11 0 4 THE n a2 iat 1% the Ei : il al i: 1 Elie J l wet iit 1 +r 1112255 18510 i pee 10 i 1 6 700 i 1 i 423 15 THE 115 bn iit 5 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. Acco [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1773%3A01. Public record. Not legal advice.