Amicus Brief — Zurcher v. Stanford Daily

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FOR ARGUMENT

JAN 16 1978

Nos. 76-1484 and 76-1

MICHAEL RODAK, N. CLERK

Gn the Supreme Court of the ited Jute

Octoser Term, 1977

JAMES ZURCHER, ETC., ET AL., PETITIONERS

Tun Stanrorp Dau, er at.

Louis P. Berona, District ATTORNEY, AND

CA Brown, PETITIONERS

Tur Sraxronb Damy, er at.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

OF APPEALS FOR THE NINTA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

WADE H. McCREE, Jr.,

Solicttor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

ANDREW L. FREY,

Deputy Solicitor General,

HARRIET s SHAPIRO,

PETER BUSCEMI,

Aasiatants to the Solicitor General,

SCHULDER,

torney,

Washington 2

Page

Questions presented..............-.-------.+---------- 1

ee 2

Summary of argument 8

Argument :

I. The Fourth Amendment does not require a showing

that a subpoena is impractical before a warrant

may issue to search premises occupied by a non-

support third part 13

A. The ruling below conflicts with traditional

interpretations of the Fourth Amend-

B. The decision below overlooks significant

difficulties and costs associated with its

C. The First Amendment concerns implicated

in the search of a newspaper office do not

esearch warrents...................-... 31

the merits, tho ward of attorney's fees was

ee — 44

A. The Civil Rights Attorney's Fees Awards

Act authorized the award of fees for serv-

ices performed before the Act became

— — 44

B. The award of fees here violates no immunity

from suit of the pet it iomer ss 51

8988. caccceccccccecsssecsceccaccccseccecsccecase 1

Cases :

A Quantity of Books v. Kansas, 378 U.S. 208 32, 42

Alewander v. Lowisiana, 405 US. 68888 25

— Wilderness Society, 421 US.

— —Ä4 . 72. 12, 45, 50

4 Maryland, 427 U.S. 46. 27, 35, a8

253-977—Ts——-1

Cases—Cont inued Page

Fee 43

Bacon v. United States, 449 F. 2 983_.......--..-... 20

Bivens v. Siz Unknown Fed. Narcotics Agents, 03 U

..... — —j 29

Bond v. Stanton, 555 F. 2d 17— 2 47

Borden Co., In ve, 7 F. Supp. 8877 2s

Boyd v. United States, 116 U.S, 616 27

Bradley v. Richmond School Board, 416 US. 606. . 12, 46, 49

Brandenburger v. Thompson, 404 F. 2d 885.......... 44

Branzurg v. Hayes, 408 US. 666 25, 33, 38, 40

Brown v. United States, 276 UWS. 1. 28

Camara v. Municipal Court, 387 S. 528_......-..-. 15,17

Commodity Manufacturing Co. Ine. v. Moore, 198

. 19

Coolidge v. New Hampshire, N US. . 15, 30

Cornist v. Richland Parish School Board, 495 F. 2d

BED cocecococcocececcoceseccesssesesesesqseesase 44

Donahue v. Staunton, 471 F. 2d 475, certiorari denied,

GaP We, Giinecsesememeccsecsntiitennnens 4h

Entick v. Carrington, 19 How, St. Tr. 1080, 9 Eng

—— 32

Finney v. Hutto, 548 F. 2d 740, certiorari granted Octo-

Ber BC, SOUT, Wa, ......!ñ%ꝙ6ññ%ê 47

Fisher v. United States, 425 U.S. 1 16, 27

Fitepatrick v. Bitzer, 427 U.S, 445...............-.. 53

Fowler v. Schwarzwalder, 498 F. 2d 163. 4h

(o-Bart Importing Co. v. United States, 2% .S. HA 13

Grand Jury Subpoena Duces Tecum, Ia re, A F.

Bae Gibecccascsesseuseepenasesunseasssnenssss 2s

Green v. United States, 356 U.S. 168. — 25

Greene v. United States, 376 U.S. 116. . 49

OG UE 28

Hanger v. United States, 398 F. 2d 91, certiorari de-

nied, 393 U.S. 16. — 20-21

Heller v. New York, 413 U.S. . >» «&

Hurtado v. California, 110 U.S. 516. 25

Hutto v. Finney, No. 76-1660, certiorari granted, Oc-

tober 17, 1977. 53

Imbler v. Pachtman, 424 U.S. 400. 52, 53

111

Cases—Continued :

Johnson v. Georgia Highway Express, Inc. 488 F. 2d pace

en 51

Johnson v. 1 nited States, 333 S. 1000. 15

La Raza Unida v. Volpe, 57 F. RAD. 4 **

Marcus v. Search Wervant, 367 U.S. 7177. 11, 32, 42

Marron v. United States, 2735 US. 1%. 4

Martinez Rodiquez v. Jimenez, S51 F. 2d 77 47

McDonald v. United States, 385 U.S. 41. 17

eee 52

Newberry v. Carpenter, 107 Mich. 567.65 N. W. 30 — 109

Oklahoma Press Publishing Co. v. Walling, 327 US.

— . — — — — 28

Owens v. Way, 141 Ga. 796, $2 &. E. 12. Is

Pell v. Procerier, 417 U.S. 61 .. 3s

People v. Carver, IIA Mise, 820, 16 N. V. S. 2d 268.... 19

People er rel. Carey v. Coveili, G1 III. 2d 304. 336 N. E.

1. 2 18

Rainey v. Jackson State College, 551 F. 2d 672... _- 47

Roaden v. Kentucky, 413 U.S. 46 11, 32, 35.

Farbe v. Washington Post ( ., 417 U.S. 833. 3s

Simmons v. United States, 300 US. 1/7. 21

Sousa v. Travisono, 512 F. 2d 1137, vacated and re-

manded, 423 U.S. 9. — 44

South Dakota v. Opperman, 428 U.S. 36644 11,30

Stanford v. Texas, 379 U.S. 476. . 9, 32, 35, 41, 42

Stone v. Powell, 428 U.S. 468. — 15

Taylor v. Perini, 303 F. 2d 899, vacated and remanded,

421 U.S. 982. 44

Tenney v. Brandhove, 341 U.S. 3677 53

Thorpe v. Housing Authority of the City of Durham,

393 U.S. 268. ——_ 46

Trupiano v. United States, 334 U.S. 699 17

United States v. Besase, 521 F. 2d 1306. 20

United States v. Chadwick, No. 75-1721, decided

June 21, 1977 9,15

United States v. Fernandes, 40 F. Supp. 79 24

United States v. Jeffers, 342 U.S. 48. 24

United States v. Kahn, 415 U.S. 143. 21,25

Cases ont inued

United States v. Manufacturers National Bank of

Detroit, 536 F. 2d 699, certiorari denied sub nom. page

Wingate v. United States, 429 U.S. 100 17,18

United States v. Martines - Fuerte, 428 U.S. 513. 15-16

United States v. Miguel, 340 F. 2d 812, certiorari denied,

e.... ꝙ¶ 24

United States v. United States District Court, 407 US.

a 9,15

United States v. The Schooner Peggy, 1 Crunch 102 — 4

Warden v. Hayden, 387 U.S. 2444 19, 29

Wheeler v. United States, 226 U.S. 76. 28

Wilkes v. Wood, 19 How. St. Tr. 1153, 98 Eng. Rep.

ee 32

Williams v. Horvath, 16 Cal. 3d 834,548 P.2d1125.... 48

Wood v. Strickland, 420 U.S. 30. 52

Wyman v. James, 400 U.S. 0. — 42 17

Constitution, statutes, and rules

United States Constitution

1 —: K passim

Fourth Amendment passim

. —4—ʃ——— — 9. 12. 29, 34. 41

.. 25. 27

i T—:. — 26

Speedy Trial Clause 26

Fourteenth Amendment 5

Civil Rights Attorney's Fee Awards Act of 1976. Pub.

I. 94-559, 90 Stat. 2641, 42 U.S.C. (1976 ed.)

— — — . 8. 12. 45

2 USC. (Sapp. V) 1617......................-.. 46

1 44

80. 5. 8, 49, 52

Ann. Cal. Evid. Code

e ͤ 38

I GQ aS 37

1070 (West Cum. Supp. 19777777 37, 38

1070(c) (West Cum. Supp. 1977) ))): 38

Ann. Cal. Gov. Code:

825 (West Cum. Supp. 19777777 48. 49

925 et seq. (Wen 1966) ........................ 4s

Const it ut ion. statutes and rules Cont inued:

Federal Rules of Criminal Procedure: peso

3. 25

0———ß„ßß—jç⁊ 29

1— — — — 20

OO 11-12, 33

Oe 33

eee... 33

. — — 33

Miscellaneous :

Comment, Newsmen's Privilege Two Years After

Branzburg v. Hayes: The First Amendment in

Jeopardy, 49 Tul. L. Rev. 417 (1976222 37

122 Cong. Rec.:

p. H12155 (daily ed., October 1, 107) 47-48

P. 112160 (daily ed., October 1, 1976) 46. 47. 51

P. 816491 (daily ed., September 23, 1976) 51

p. 817052 (daily ed., September 29, 1976) 47

LIAN 28

H.R. Rep. No. 94-1558, 4th Cong., 2d Sess. (1976) 12,

13, 41, 47, 53

Note, Search and Seizure of the Media: A Statutory,

Fourth Amendment Analysis, 28 Stan. L. Rev. 957

1 hte nats 20, 37

S. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976 12,

13, 45. 47, 51, 52

I. Taylor, 7wo Studies in Constitutional Interpreta-

Siem (1089) cccccccecsescccsssesecsesssccsesce 16, 21, 32

In the Supreme Court of the United States

Octoper Term, 1977

No. 76-1484

JAMES ZURCHER, Fr., ET AL., PETITIONERS

Vv.

Tue Sranrorp Daly, Er AL,

No. 76-1600

Lovis P. Brax, District ATrorNEY, AND

Craig Brown, PeTITIONERS

Tue Sraxrond Dan, er AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s request,

received on December 15, 1977.

QUESTIONS PRESENTED

1, Whether a search of the office of a party not sus-

pected of a crime, in particular, a search of the office

(1)

of a student newspaper, pursuant to a warrant sup-

ported by probable cause, is unreasonable under the

Fourth Amendment, unless before conducting the

search, law enforcement officers have attempted by

subpoena duces tecum to obtain the materials they

seek or have demonstrated to a magistrate that a

subpoena would be impractical.

2. Whether the Civil Rights Attorney’s Fees Award

Act authorizes the award of fees in this case, although

the services compensated were performed before the

Act became law.

STATEMENT

1. Shortly before 6 p.m. on April 9, 1971, officers of

the Palo Alto Police Department went to the Stanford

University Hospital in response to a request from the

hospital director that the police remove a group of

demonstrators who had occupied the administrative

offices of the hospital since the previous afternoon

(A. 170-171, 176-177, 180-182). When the police

arrived, they found that the demonstrators had

chained and barricaded the glass doors at both ends

of the hall adjacent to the administrative office area

(A. 172). After a series of unsuccessful attempts to

persuade the demonstrators to leave peacefully, police

officers took forcible measures to gain entry through

the doors at the west end of the corridor (A. 170-171,

177-178, 180, 182). A number of reporters, photog-

raphers and bystanders gathered at that end of the

hall to watch the police evacuation efforts (Pet. App.

12).’ As the police broke through the barricade block-

ing the west doorway, a number of demonstrators,

armed with sticks and clubs, rushed out of the doors

at the east end of the corridor and attacked a con-

tingent of nine police officers positioned there. All

nine officers were injured in the ensuing struggle,

some seriously (A. 34, 104, 172-175, 179; Pet. App.

11). The police were able to identify only two of their

assailants (A. 175, 179; Pet. App. 12).

On Sunday, April 11, 1971, respondent, The Stan-

ford Daily (“Daily”), a newspaper published by stu-

dents at Stanford University (A. 16), published a

special edition containing articles and photographs

devoted to the hospital protest and the violent clash

between demonstrators and police (A. 20, 34-35, 100-

116, 152). The published photographs carried the by-

line of a member of the Daily’s staff (A. 35), and in-

dicated that the Daily’s photographer had been sta-

tioned near the scene of the assault upon the officers

at the east end of the hospital hallway (A. 152-153;

Pet. App. 12).

On April 12, 1971, the Santa Clara County District

Attorney’s office secured a warrant authorizing an

immediate search of the Daily’s offices for negatives,

film, and pictures showing the events and occurrences

The appendices to the petitions in these consolidated cases

are identical, even as to pagination. Where it is necessary to refer

to the petitions separately, the petition in No. 76-1484 will be

cited as “Zurcher Pet.” and the petition in No. 76-1600 as “Bergna

Pet.”

253-977—78——2

at Stanford University Hospital on the evening of

April 9, 1971 (A. 31-32; Pet. App. 12). The police

officer’s affidavit presented to the issuing magistrate

in support of the warrant contained no evidence or

allegation that any member of the Daily staff was in-

volved in the unlawful activities at the hospital (A.

33-35; Pet. App. 12).

At approximately 5:45 p.m. the same day, the search

warrant was executed by four members of the Palo

Alto Police rtment (A. 72-75, 130-132, 136-141,

155-169 ; 1. Br. 13), According to the police officers,

the search lasted about 15 minutes (A. 158, 162, 165,

169). The police examined the Daily’s photograph lab-

oratory, file cabinets, desks, and wastepaper baskets.

Locked drawers and rooms were left undisturbed (A.

141, 157, 165). Petitioners and respondents disagree

over whether the police officers read or scanned any

of the written materials located in the Daily’s offices at

the time of the search (A. 75, 132, 140-141, 157, 164

165, 168). Although the officers were apparently in a

position to see reporters’ notes containing information

given in confidence, the police were not advised by

Daily staff members present during the search that

any of the materials examined were confidential in

nature (A. 88, 132, 158, 161, 165, 168-169). The search

apparently uncovered no useful photographs of the

April 9 altercation between police and demonstrators,

and the officers departed without seizing any property

(A. 27, 43, 53).

2. On May 13, 1971, respondents commenced a civil

action in the United States District Court for the

Northern District of California seeking declaratory

and injunctive relief under 42 U.S.C. 1983. Respond-

ents alleged that the search of the Daily’s offices had

deprived them, under color of state law, of rights se-

cured by the First, Fourth and Fourteenth Amend-

ments to the United States Constitution (A. 15-35).

The district court granted respondents’ motion for

a declaratory judgment that the search of the Daily’s

offices was illegal; the court denied the request for in-

junctive relief (Pet. App. C; 353 F. Supp. 124).

The district court held that, before obtaining a

search warrant for materials in the possession of a so-

called third-party,“ i.e., a party not suspected of

erime, law enforcement officials are required under

the Fourth Amendment to demonstrate to the issuing

magistrate not only probable cause to believe that the

third party has in his possession evidence of a crime,

but also probable cause to believe that a subpoena

duces tecum would be an impractical means to obtain

that evidence (Pet. App. 26). The court further stated

that even where a subpoena is issued and the requisite

materials are not produced, the mere failure to com-

ply would not by itself constitute grounds sufficient to

support issuance of a search warrant (Pet. App. 27).

Noting that destruction of evidence is a crime under

California law, the court suggested that a restraining

order would be the appropriate procedural device

to use in the event police presented evidence that

materials needed for a criminal investigation were in

danger of destruction or removal from the juris-

diction (Pet. App. 27). The court declared that a

subpoena should be found impractical and a search

warrant issued for materials in the possession of a

nonsuspect third party “[o]nly if it appears that the

materials will be destroyed or removed from the juris-

diction despite the restraining order, or that there

simply is not time to obtain a suitable order” (Pet.

App. 28).

Finally, the court observed that in assessing the

impracticality vel non of a subpoena, the magistrate

“should consider * * * whether First Amendment

interests are involved” (Pet. App. 28). A search of

a newspaper office, the court said, “presents an over-

whelming threat to the press’s ability to gather and

disseminate the news” (Pet. App. 32). In addition,

the court opined, necessary information may be

obtained from the press by means less drastic than

a search. Therefore, the court concluded, [a] search

warrant should be permitted only in the rare eireum—

stance where there is a clear showing that 1) im-

portant materials will be destroyed or removed from

the jurisdiction; and 2) a restraining order would

be futile’? (Pet. App. 33). Since petitioners had not

alleged that any member of the Daily staff was sus-

pected of a crime, the court explicitly refused to

consider whether the same rule should apply in such

a situation (Pet. App. 33 n. 15). On the basis of the

undisputed facts, the court ruled that the search of

the Daily’s offices was unlawful (Pet. App. 33, 35).“

»The court noted that a Santa Clara County grand jury had

convened on the evening of April 12, 1971, soon after the search

On August 10, 1973, the district court concluded

that an award of attorney’s fees to respondents was

appropriate to encourage vindication of important

constitutional rights (Pet. App. 49-50). The court

later determined that $47,500 would constitute reason-

able compensation for the services performed (Pet.

App. 59-71).

The court of appeals affirmed, adopting the opinion

of the district court on the Fourth Amendment issue

(Pet. App. A; 550 F. 2d 464). With respect to the

award of attorney’s fees, the court of appeals noted

that this Court’s decision in Alyeska Pipeline Co. v.

Wilderness Society, 421 U.S. 240, which held that

attorney’s fees could not ordinarily be awarded by

federal courts absent congressional authorization,

invalidated the district court’s nonstatutory basis for

its award. However, the court of appeals held that

warrant was executed. The court was plainly under the impression

that local authorities could have issued the Daily a subpoena re-

turnable before that grand jury (Pet. App. 13-14). In an affidavit

submitted to the district court, however, petitioners sought to

demonstrate that a subpoena would have been futile under the

circumstances of this case. The affidavit alleged that in October

1969 photographs subpoenaed from the Daily had been reported

lost or stolen, and that sometime prior to April 1971 the Daily

had announced in an editorial that it would not retain any poten-

tially incriminating photographic materials (A. 150-152; see A.

117-118 (Daily editorial, February 10, 1970) ). The court remained

unpersuaded, remarking first that the affidavit did not establish

probable cause to believe that a subpoena was impractical, and

second that the evidence allegedly establishing such probable

cause had not been properly presented to the magistrate in affi-

davits supporting issuance of the search warrant (Pet. App. 33

n. 16).

the intervening passage of the Civil Rights Attorney’s

Fees Award Act of 1976, Pub. L. 94-559, 90 Stat.

2641, 42 U.S.C. (1976 ed.) 1988, which authorized

federal courts to award fees in cases filed under 42

U.S.C. 1983, ‘‘revalidated” the district court’s judg-

ment awarding fees (Pet. App. 6).

SUMMARY OF ARGUMENT

1. This case involves a challenge to the legality of

a search of a student newspaper, pursuant to a war-

rant issued upon a showing of probable cause. The

courts below have awarded respondents a judgment

declaring the search to have been illegal because the

newspaper was a third-party“ not suspected of

complicity in the offenses under investigation, and a

warrant therefore should not have been issued in the

absence of a showing that the use of a subpoena to

acquire the evidence was “impractical.” While we

recognize that recourse to a subpoena rather than a

search can in some cases avoid possibly unnecessary

intrusion into personal privacy or risk to interests

protected by the First Amendment, we cannot agree

that the concerns justify the imposition of a broad

procedural barrier to issuance of search warrants such

as that adopted by the decision below. Rather, such

considerations, which necessarily vary materially

from case to case, should be taken into account by

the magistrate in issuing the warrant and framing its

terms and conditions.

a. Nothing in the language, development, or previ-

ous interpretation of the Fourth Amendment indicates

that the impracticality of a subpoena must be estab-

lished before a valid warrant may issue authorizing

a search of third-party“ premises. The primary evil

feared by the Framers of the Fourth Amendment was

an unfettered search pursuant to general warrant.

Thus motivated, the Framers wrote into the Amend-

ment substantial restrictions on warrants and their

issuance. See, ¢.g., Stanford v. Teras, 379 U.S. 476,

481-485. This Court has recognized that those restric-

tions afford significant protections against unreason-

able warranted searches. See, e. g., United States v.

Chadwick, No. 75-1721, decided June 21, 1977, slip

op. 7-8; United States v. United States District Court,

407 U.S. 297, 316-317. Neither the courts below nor

respondents have been able to adduce any precedent

supporting adoption of a “subpoena first” rule as a

supplement to the traditional Warrant Clause re-

quirements of a probable cause showing to a neutral

magistrate and a specific description of the place to be

searched and the things to be seized.

b. Apart from its lack of historical foundation, the

result reached below could pose severe problems in

implementation. The district court’s opinion does not

explain what it means by the terms ‘‘non-suspect” and

„third-party.“ Nor does the ruling indicate what sort

of evidence would suffice to establish a subpoena’s

impracticality. If the terms non-suspect“ and ‘‘third-

party” are defined broadly or if the additional show-

ing imposes a heavy burden of proof, legitimate law

enforcement needs will suffer. To the extent that the

courts below would require the use of subpoenas for

obtaining materials from parties possibly engaged in

criminal conduct or potentially sympathetic with sus-

pects, a serious and unjustifiable risk of loss of evi-

dence would be created.

The lower courts’ ruling is also deficient in its fail-

ure to recognize the practical difficulties involved in

mandatory increased reliance upon subpoenas. In

many federal jurisdictions, grand juries meet only in-

frequently. Initial resort to a subpoena will often

mean significant delay in a_criminal investigation. If

compliance is postponed until after an unsuccessful

judicial challenge to the subpoena’s validity, further

delay will be inevitable.

Thus, the costs associated with adoption of the

rule propounded by the courts below could be high.

Yet the corresponding benefits appear minimal. Prose-

cutors and police officers seldom, if ever, proceed by

search warrant when they are reasonably confident

that the materials they seek may be acquired through

informal request or by subpoena. When executive

officials do apply for a warrant, the Fourth Amend-

ment’s provisions protect against arbitrary invasion

of a citizen’s privacy. In addition, the issuing magis-

trate may in individual cases impose special restric-

tions on the manner of execution of a search, thereby

limiting its intrusiveness to that justified by legiti-

mate law enforcement concerns. The position sum-

marized here is consistent with this Court’s rejection

of per se rules in the Fourth Amendment context in

favor of a case-by-case approach better suited to a

balancing of the conflicting interests implicated in

officially authorized searches and seizures. See South

Dakota v. Opperman, 428 U.S. 364, 373.

c. The fact that the search here in dispute occurred

at the offices of a newspaper does not materially affect

the argument outlined above. Doubtless, serious First

Amendment questions are raised by the search of a

newspaper office or any comparable media facility.

This Court has acknowledged on a variety of

occasions that the protections afforded by the Fourth

Amendment must be applied with special stringency

in situations where First Amendment values may be

at stake. See, e. g., Roaden v. Kentucky, 413 U.S. 496;

Marcus v. Search Warrant, 367 U.S. 717. The careful

weighing of interests that the Constitution requires

is best accomplished, however, through a neutral

magistrate’s evaluation of the facts presented in par-

ticular warrant applications, not through adoption of

a new procedural requirement, indiscriminately ap-

plicable whenever First Amendment interests are

arguably involved.

The federal government’s contention that the

“subpoena first“ rule fashioned by the courts below

is not constitutionally compelled does not reflect a

policy judgment that searches of press offices are

desirable. On the contrary, no case has been found

in which such a search has been conducted under

federal auspices. Furthermore, Justice Department

guidelines limiting the availability of newsmen’s

subpoenas evidence a continuing concern that First

Amendment liberties be safeguarded. See 28 C.F.R.

233 977—78-——-3

50.10. In sum, the Fourth Amendment contemplates

protection of freedom of the press, in the search and

seizure context, throngh the guarantees of the War-

rant Clause; if additional protections are deemed nec-

essary or wise, they must be mstituted by the political

branches.

2. If this Court should affirm the decision below

on the legality of the search, the award of attorney’s

fees should also be affirmed. The district court

awarded those fees pursuant to a “private attorney

general” rationale, now discredited in the wake of

Alyeska Pipeline Co. v. Wilderness Society, 421 U.S.

240. As the court of appeals correctly held, however,

the district court’s award of attorney’s fees was

“revalidated’’ by Congress’ enactment of the Civil

Rights Attorney’s Fees Awards Act of 1976, Pub.

L. 94-559, 90 Stat. 2641, 42 U.S.C. (1976 ed.) 1988,

during the pendency of this suit in the court of

appeals.

In Bradley v. Richmond School Board, 416 U.S.

696, this Court affirmed an award of attorney’s fees

for services performed before the statute authorizing

the award was enacted. In that case, the statute’s

legislative history was ambiguous as to whether the

new law’s provisions were to be applied to pending

cases. Here, by contrast, the congressional intent

is clear that the courts were to have authority to

award attorney’s fees in pending cases. See S. Rep.

No. 94-1011, 94th Cong., 2d Sess. 5 (1976) ; H.R. Rep.

No. 94-1558, 95th Cong., 2d Sess. 4 n. 6 (1976).

Moreover, the award of attorney’s fees in this ease

works no injustice. The City of Palo Alto and the

County of Santa Clara will be responsible respectively

for any judgments against petitioner police officers

and district attorneys. As in Bradley, the enactment

of the statutory authorization of attorney’s fees

awards did not affect any unconditional right of a

public entity to dispense funds as it chose, and did

not have any impact on the substantive law of the

ease. Finally, the award of fees here does not violate

any immunity that petitioners enjoy from damage

actions. The legislative history of the 1976 statute

leaves no uncertainty on this score. See S. Rep. No.

94-1011, supra, at 5; H.R. Rep. No. 94-1558, supra,

at 7.

ARGUMENT

I. THE FOURTH AMENDMENT DOES NOT REQUIRE A SHOW-

ING THAT A SUBPOENA IS IMPRACTICAL BEFORE A WAR-

RANT MAY ISSUE TO SEARCH PREMISES OCCUPIED BY A

NONSUSPECT THIRD PARTY

Petitioners challenge the following rule, formulated

by the district court and endorsed by the court of

appeals: “law enforcement agencies cannot obtain a

warrant to conduct a third-party search unless the

magistrate has probable cause to believe that a sub-

poena duces tecum is impractical” (Pet. App. 26).

This broad holding constitutes a significant and ill-

conceived departure from established Fourth Amend-

ment principles. Neither the language of the Amend-

ment, nor the history of its drafting and adoption,

nor subsequent judicial interp$ftation of its provisions

supports the imposition of this additional prerequisite

for the issuance of a valid search warrant. Moreover,

the substantial practical difficulties that would attend

the administration of such a requirement counsel

against its acceptance by this Court.

A. THE RULING BELOW CONFLICTS WITH TRADITIONAL INTERPRETA-

TIONS OF THE FOURTH AMENDMENT

The Fourth Amendment declares:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

The Amendment thus places important restrictions on

the issuance of search warrants. A neutral magistrate

must determine, on the basis of sworn allegations,

whether a sufficient showing has been made to justify

the invasion of privacy that a search or seizure en-

tails. The place to be searched and the persons or

things to be seized must be specifically described in

the warrant, in order to protect against unfettered

police inspection of a person’s home, office, or belong-

ings. Marron v. United States, 275 U.S. 192, 196. By

the same token, the magistrate’s participation in the

warrant process provides an opportunity for the im-

position of salutary limits on the manner and extent

of an authorized search. Finally, the warrant itself

assures one whose property is subjected to search or

seizure that the executing officer is operating under

lawful authority. Camara v. Municipal Court, 387 U.S.

523, 532. This Court has recognized repeatedly that

these guarantees do afford meaningful safeguards

against overreaching conduct by law enforcement

officers. See, e.g., United States v. Chadwick, No. 75

1721, decided June 21, 1977, slip op. 7-8; United

States v. United States District Court, 407 U.S. 297,

316-317 ; Coolidge v. New Hampshire, 403 U.S. 443, 467

(plurality opinion); Johnson v. United States, 333

U.S. 10, 14; Go-Bart Importing Co. v. United States,

282 U.S. 344, 356-357.

Nowhere in the Fourth Amendment, however, is it

stated or implied that a sworn demonstration of the

impracticality of a subpoena is a precondition for the

issuance of a valid search warrant. This is not sur-

prising in light of the history of the constitutional

provision. That history, frequently canvassed in the

opinions of the Court, reveals that “[t]he Amendment

was primarily a reaction to the evils associated with

the use of the general warrant in England and the

writs of assistance in the Colonies.” Stone v. Powell,

428 U.S. 465, 482. See also United States v. Chadwick,

supra, slip op. 6, and cases there cited. The principal

concern motivating the Framers of the Amendment

was a desire to narrow and particularize the permis-

sible scope of search warrants, in order “to prevent

arbitrary and oppressive interference by enforcement

officials with the privacy and personal security of in-

dividuals.” United States v. Martinez-Fuerte, 428 U.S.

543, 554. No attempt was made to rank, according to

the degree of their intrusiveness, the various proce-

dural devices that police might employ in their efforts

to acquire information relevant to the investigation

of a crime. A fortiori, the Framers imposed no re-

quirement that law enforcement officers limit them-

selves to the least intrusive means by which neces-

sary information might conceivably be obtained.’

Rather, the Framers addressed themselves solely to

searches and seizures, and struck a balance whereby

when the State’s reason to believe incriminating evi-

dence will be found becomes sufficiently great, the in-

vasion of privacy becomes justified and a warrant to

search and seize will issue.” Fisher v. United States,

425 U.S. 391, 400.

A study of the origins of the Fourth Amendment

discloses no intention to create separate and distinct

categories of persons to whom varying measures of

constitutional protection would apply, and the lower

courts’ differentiatation in this case between suspects

and nonsuspects finds no support in the historical de-

velopment of search and seizure law. One respected

commentator has stated without qualification that “a

warrant may issue to search the premises of anyone,

without any showing that the occupant is guilty of any

offense whatever.” T. Taylor, Two Studies in Consti-

tutional Interpretation 48-49 (1969). Similarly, this

* See United States v. Martinez-Fuerte, supra, 428 U.S. at 557

n. 12 (“The logic of such elaborate less-restrictive-alternative argu-

ments could raise insuperable barriers to the exercise of virtually

all search and seizure powers”).

Court has said several times that the Fourth Amend-

ment was designed to protect everyone, “both the

innecent and the guilty.” Trupiano v. United States,

334 U.S. 699, 709. See also Wyman v. James, 400 U.S.

309, 317; Camara v. Municipal Court, supra, 387 U.S.

at 530; McDonald v. United States, 335 U.S. 451, 453;

Go-Bart Importing Co. v. United States, supra, 282

U.S. at 356. On all these occasions, whether in a civil

or eriminal context, the Court has not advanced the

slightest suggestion that the Fourth Amendment war-

rant requirements should be administered differently

for suspects and non-suspects.

In the only recent judicial decision other than the

instant case to consider the matter directly, the Sixth

Circuit specifically rejected the argument that the

Fourth Amendment rights of innocent third parties

are violated when the government fails to utilize a

subpoena duces tecum or establish its impracticality

before applying for a search warrant. In United

States v. Manufacturers National Bank of Detroit,

536 F. 2d 699 (C. A. 6), certiorari denied sub nom.

Wingate v. United States, 429 U.S. 1039, agents of

the Federal Bureau of Investigation obtained a war-

rant to search a bank safety deposit box registered in

the names of the .vife and daughter of the man the

agents suspected of heading a large illegal gambling

operation. After the warrant had been executed and

the agents had discovered more than $500,000 in cur-

rency, the lessees of the safety deposit box moved for

return of the seized property. In affirming the district

court’s denial of the motion, the court of appeals held

that the warrant was supported by probable cause and

that no Fourth Amendment violation had occurred.

Expressly disagreeing with the district court’s deci-

sion in this case, the court concluded (536 F. 2d at

703) :

Once it is established that probable cause

exists to believe a federal crime has been com-

mitted a warrant may issue for the search of

any property which the magistrate has probable

cause to believe may be the place of conceal-

ment of evidence of the crime. The necessity

that there be findings of probable cause as to

two factors—the commission of a crime and the

location of evidence—affords protection from

unreasonable searches and seizures, which

are the only ones forbidden by the Fourth

Amendment. “]

Respondents cite four state cases, none more recent

than 1939, in support of their contention that the im-

practicality of a subpoena must be established before

a third party search warrant may properly issue. As

the opinion below reveals, these cases do not stand for

the proposition asserted by respondents. In Owens v.

Way, 141 Ga. 796, 82 S. E. 132 (1914), the police of-

ficers sought to justify a warrantless search of a third

party’s premises and seizure of his safe by arguing

that the safe contained evidence that could be used to

convict the third party’s nephew, whom the police had

arrested pursuant to a valid warrant. The Georgia

*See also People ex rel. Carey v. Covelli, 61 III. 2d 394, 336

N.E. 2d 759 (upholding validity of warrant to search belongings

of deceased third party).

Supreme Court simply held that the officers’ authority

under the arrest warrant did not extend so far as to

permit seizure of third party property. Newberry v.

Carpenter, 107 Mich. 567, 65 N. W. 530 (1895), in-

volved a court order authorizing a local procedure to

seize the remnants of two boilers that had exploded,

destroying the printing plant in which they were lo-

cated and causing death or injury to numerous per-

sons. Not only was the court order issued on the basis

of unsworn allegations, but also the prosecutor's ac-

tions did not fall within one of the several categories

of permissible seizures explicitly sanctioned by state

statute. Hence, in neither case was the search and sei-

zure invalidated by virtue of the courts conclusion

that a constitutional provision governing searches

should be interpreted to differentiate between suspects

and nonsuspects. The other two cases cited by re-

spondents, People v. Carver, 172 Mise. 820, 16 N. V. S.

2d 268 (County Ct. 1939), and Commodity Manufac-

turing Co., Inc. v. Moore, 198 N. V. S. 45 (Sup. Ct.

1923), are also not in point. The seizures in those

cases failed to survive judicial scrutiny either because

they were not authorized under state statute or be-

cause they involved “mere evidence,” as opposed to

fruits or instrumentalities, of crime. This latter dubi-

ous Fourth Amendment distinction was eventually

abandoned by this Court in Warden v. Hayden, 387

U.S. 294.°

* Respondents also cite (Br. 46) several “due process” cases in

which this Court has held some type of prior hearing must be

233 977 —78S-——4

In short, existing Fourth Amendment jurisprudence

amply demonstrates that the constitutional standard

for the issuance of a search warrant is met when the

magistrate is furnished with probable cause to believe

that a crime has been committed and that evidence

of that crime will be uncovered in a particular loca-

tion. The protections of the Amendment do not vary

with the identity of the party whose premises are to

be searched or with that party’s status as a suspect or

nonsuspect.” Indeed a warrant may validly issue even

where the identity of the owner or occupant of the

premises is unknown. See, e.g., United States v.

Besase, 521 F. 2d 1306, 1308 (C. A. 6); Hanger v.

United States, 398 F. 2d 91, 99 (C. A. 8), certiorari de-

afforded a citizen before he may be deprived of his property by

the government. These cases are plainly inapposite, however, not

only because they did not involve the lawfulness of police conduct

during a criminal investigation but also because, unlike the pro-

cedures there under attack, the issuance of a search warrant does

require that a substantial prior showing be made before a neutral

magistrate.

The courts h low, relying on Bacon v. United States, 449 F. 2d

933 (C.A. 9), have attempted to draw an analogy between an

arrest of a material witness and a search of the premises of a

nonsuspect third party. The comparison is inapposite for two

reasons. First, it is doubtful whether the rules regarding the arrest

of material witnesses are constitutionally compelled. See Rule

46(b), Fed. R. Crim. P. Second, an arrest and a search are notably

disparate in their respective impacts on the individual. Predict-

ably, therefore, the criteria governing arrests and searches have

never been equated in constitutional law. See Note, Search and

Seizure of the Media: A Statutory, Fourth Amendment and First

Amendment Analysis, 28 Stan. L. Rev. 957, 995-996 and nn. 222-

224 (1976).

nied, 393 U.S. 1119. This result is both expected and

correct, because, as one prominent commentator has

explained, “[a] search warrant does not run against

an individual, but to things in places” T. Taylor,

supra, at p. 60 (footnote omitted). See also United

States v. Kahn, 415 U.S. 143, 155 n. 15.

B. THE DECISION BELOW OVFRLOOKS SIGNIFICANT DIFFICULTIES AND

COSTS ASSOCIATED WITH ITS “THIRD-PARTY” SUBPOENA RULE

The statement of the broad rule adopted by the

decision below is deceptively simple, but the rule

masks a myriad of problems that would inevitably

arise in the course of its application and that did not

receive adequate consideration in the opinion. Because

of these problems, adoption of the lower courts’ inno-

vation in Fourth Amendment law would be unwise,

wholly apart from the lack of textual or precedential

support for the rule propounded by the decision

below.

In conducting a pragmatic inquiry into the desir-

ability of a rule requiring an antecedent magisterial

determination of the impracticality of a subpoena as

a precondition to the issuance of a warrant to search

premises belonging to a nonsuspect, it is necessary to

balance the frequency and severity of the evils against

which such a procedure would guard with the prac-

tical costs that the procedure would impose. We be-

lieve that the evil, while perhaps significant in occa-

sional specific cases, is not in fact prevalent—a con-

clusion supported to some extent by the striking pau-

city of reported cases challenging the propriety of

warranted, probable cause searches of “third-party”

premises.

It is, moreover, in the nature of things that un-

necessary or unjustifiable searches of truly disinter-

ested third parties are rare. We canvassed a number

of federal prosecutors’ offices in connection with the

preparation of this brief and were consistently told

that there is a strong preference for proceeding by

subpoena or, better yet, by informal request rather

than by search whenever it appears feasible to do so

(which is almost always in the case of indisputably

disinterested third parties such as banks or telephone

companies). This preference is predictable and under-

standable in light of the fact that the warrant mecha-

nism is relatively cumbersome and demanding and that

searches perceived as unnecessary by the citizenry can

be destructive of police-community relations—con-

siderations that make law enforcement officials un-

likely to seek a warrant in the first instance unless they

have some reason to fear that less drastic measures

will prove inadequate. Respondents themselves cite

(Br. 44) cases that exemplify prosecutors’ tendency

to subpoena files and records rather than attempting

to obtain such materials through a judicially author-

ized search. Since the prosecutor’s own interest in the

efficient gathering of evidence militates in favor of

reliance upon the voluntary cooperation of neutral

third parties, it is reasonable to commit the original

determination whether to proceed by subpoena or

= — —

search warrant to the discretion of those executive

officials charged with law enforcement responsibilities.

While the evils perceived as justifying the decision

below are thus not ubiquitous, the practical difficulties

surrounding its implementation promise to be sub-

stantial. Foremost among these is the classification of

particular persons as suspects or nonsuspects. We are

particularly concerned in this connection with the im-

plication in the opinion below—arising from its use

of the analogy to arrests (Pet. App. 25-26)—that it

may intend to encompass within the otherwise unde-

fined concept of “third-parties” any person as to whom

there is no probable cause to believe he or she is

criminally implicated in the offense under investiga-

tion. If any new restriction is to be imposed upon the

procedures antecedent to third party searches, it is

imperative that the “third-party” concept be strictly

limited to persons or organizations indisputably free-

of any culpable connection with the offense or relation-

ship to possible offenders.

The need of police officers to inspect or seize items of

private property arises in a vast variety of situations.

At times, prosecutors and police may be certain that

a given crime has been committed but may not yet

have probable cause for an arrest or perhaps may

not even have identified any suspects. In such cir-

cumstances, police would be hard-pressed to demon-

strate that a subpoena is an impractical method of

obtaining materials from any particular party. At

the same time, the use of subpoenas that the courts

below would require might well result in premature

notice to a guilty individual. Police may wish to

inspect the premises or property of so-called third

parties, not themselves suspected of any complicity

in the unlawful conduct under investigation, but

known to be related to, or friendly with, the likely

perpetrator. Similarly, police may need to search

areas belonging to or occupied by presumably inno-

cent third parties, but to which a criminal suspect has

or has had ready access. See, . g., Simmons v. United

States, 390 U.S. 377; United States v. Jeffers, 342

U.S. 48; United States v. Miguel, 340 F. 2d 812, 814 n.

2 (C.A. 2), certiorari denied, 382 U.S. 859; United

States v. Fernandez, 430 F. Supp. 794 (N.D. Cal.).

Where, as is often the case, the probable reaction of

such third parties to a subpoena or police inquiry is

unknown and unknowable, the rule adopted by the

courts below would create an unjustifiable risk that

valuable evidence would be lost.

The **subpoena first” rule will also require the fre-

quent inclusion of additional material in search war-

rant applications. It will presumably be necessary in

each instance to include, in addition to the constitu-

tionally required specific identification of the place

to be searched and things to be seized, some statement

indicating the identity of the owners or occupants of

the place to be searched and relating what is known

of their connection to the crime and to any suspected

perpetrators of the crime—information which, as in-

dicated above, may not always be readily available

and which has not heretofore been thought constitu-

tionally required (see United States v. Kahn, supra,

415 U.S. at 155, n. 15). And where premises of some-

one arguably a “third-party” are to be searched,

prosecutors will confront the difficult task of present-

ing reliable information on the speculative question

of the practicality of a subpoena. The opinion below

fails to indicate what sort of evidence would suffice to

satisfy this requirement. While such omissions from

the analysis in the opinion make it impossible to pre-

dict how heavy an additional burden will be imposed

on law enforcement officers by the ‘subpoena first”

rule, the concerns expressed above are ones that must

be reckoned with.

Apart from any burdens that may be imposed on

the warrant procedure itself, the analysis of the opin-

ion below is deficient in failing to consider the diffi-

culties that may be associated with reliance upon

subpoenas in many circumstances. As petitioners have

indicated (Bergna Pet. 6 n. 4, 8 n. 6; Bergna Br.

19-20; A. 153-154), the limited functions and avail-

ability of grand juries in California and other states“

would severely hamper prosecutorial efforts to use

Since the Fifth Amendment requirement of a grand jury in-

dictment for “capital, or otherwise infamous crime[s]” (see Green

v. United States, 356 U.S. 165, 183; see also Rule 7(a), Fed. R.

Crim. P.) does not apply to the states under the Fourteenth

Amendment, //urtado v. California, 110 U.S. 516, cited with ap-

proval in .l/exander v. Louisiana, 405 U.S. 625, 633, the degree of

reliance on, and thus availability of, grand juries varies widely

from state to state. See Branzburg v. Hayes, 408 U.S. 665, 687-688

amd nn. 24-25.

subpoenas to the extent that the lower courts’ decision

seems to envision. Likewise in the federal system, the

infrequent meetings of grand juries in a significant

number of sparsely populated or geographically large

districts—in some districts federal grand juries meet

as infrequently as once every 60 days—make routine

resort to subpoenas highly problematical. Prosecutors

might often be required to issue subpoenas returnable

before a grand jury that will not convene for several

days or even weeks. The delay inevitably associated

with this process is incompatible with the imperatives

of effective criminal investigation and the societal in-

terest in prompt resolution of criminal cases reflected

in the Speedy Trial Clause of the Sixth Amendment.

We do not mean by the foregoing to suggest that

law enforcement authorities should be in any way

discouraged from using subpoenas where feasible, or

that there are no valuable interests that are served

when a subpoena is used rather than a search, or even

that there may not be occasions on which it would be

appropriate to refuse issuance of a search warrant

because it is unreasonable to proceed by those means

rather than by subpoena or request for volun-

tary cooperation. One undeniable benefit of a sub-

poena, whenever prompt compliance is forthcoming,

is that it avoids the necessity for police rummaging

that may disclose private materials not subject to in-

spection or seizure under the terms of the warrant.

(In many cases a police request for voluntary produc-

tion at the time the warrant is served could accom-

plish the same objective, but that will not always be

so; here, for example, it appears that the photographs

might not have been producible because they did not

exist at the time of the search.)

Another cited benefit of the use of the subpoena is

that it affords the third party an opportunity to

litigate his obligation to supply the requested mate-

rials. We recognize that this may be valuable in cases

where the subpoenaed party can make a convincing

showing that he does not possess the requested mate-

rials or that they are subject to some overriding

privilege, such as the attorney-client privilege, that

shields them from production even though they may

contain evidence of a crime.’ But the opportunity to

litigate prior to seizure or disclosure of the materials

is not an unmixed blessing. Litigation is a time-

consuming process that is incompatible with the need

for expedition in the conduct of criminal investiga-

tions. Especially insofar as a party may have objec-

tions to production or disclosure rooted in Fourth

* Respondents and the courts below apparently assume that if

a subpoena for certain materials is quashed, those materials could

not then be obtained by means of a legitimate warranted search.

This is not necessarily so. For example, in recognition of the

colorable Fifth Amendment self-incrimination objections which

may be advanced against the active cooperation necessarily in-

volved in an affirmative response to a subpoena, this Court has

approved the use of search warrants for the acquisition of certain

materials the production of which might not be subject to com-

pulsion by subpoena. See Andresen v. Maryland, 427 U.S. 463;

Boyd v. United States, 116 U.S. 616. See also Fisher v. United

States, supra.

Amendment considerations, the general liberality with

which grand jury subpoenas may be procured and

enforced, and the very limited nature of Fourth

Amendment objections to them that our legal system

countenances, suggest that such objections will or-

dinarily be found to lack merit. See 86 Harv. I. Rev.

1317, 1324-1326 (1973).”

„Thus, although subpoenas are theoretically subject to the

Fourth Amendment requirement that the materials sought be

described with particularity, see Oklahoma Press Publishing Cy.

v. Walling, 327 U.S. 186, 208-209; Hale v. Henkel, 201 US. 43,

in practice the expansive scope of the grand jury’s investigative

power has been invoked to justify subpoenas of notably broad

reach, See, ¢.g., Brown v. United States, 276 U.S. 134; Wheeler v.

United States, 226 U.S. 478; In re Grand Jury Subpoena Duces

Tecum, 203 F. Supp. 575 (S. D. N. V.); Ja re Borden Co., 75 F.

Supp. 857 (N.D. III.)

Moreover, issuance of a valid subpoena does not require a

probable cause showing that the materials sought constitute evi-

dence of a crime under investigation The grand jury—or the

prosecutor acting alone as agent for the grand jury—may issue

u subpoena with no prior judicial scrutiny, and the commands of

the Fourth Amendment will be found satisfied by a demonstra-

tion of simple relevance of the materials sought to the subject

matter under consideration by the grand jury. See Oklahoma Press

Publishing Co. v. Walling, supra, 327 U.S. at 208-209, The very

siatement of this test reveals one of the incongruities of the ruling

below. The validity of a subpoena is tested in part through an

evaluation of its connection to an ongoing grand jury inquiry. But,

in most instances in which law enforcement officials seek to acquire

information, no grand jury investigation of the matter is in

progress. Either evidence gathering has not yet proceeded to the

point where a prosecutor would present his case to a grand jury, or

no request for a grand jury indictment is contemplated. Under

such circumstances, assuming a grand jury were convened for the

purpose of issuing the sort of subpoenas that the courts below

would require, the test of relevancy to a grand jury inquiry

would be meaningless.

The courts below assigned great weight to the fact

that innocent third parties, subjected to an unlawful

search but not prosecuted on criminal charges, would

have no occasion to invoke the exclusionary rule to

suppress evidence produced by the illegal search.

Reasoning from this premise, they decided that adop-

tion of the prophylactic “subpoena first” rule was the

only way to afford third parties “meaningful protec-

tion” against unlawful searches (Pet. App. 23). This

conclusion is incorrect. As demonstrated above, sub-

stantial guarantees that warranted searches will be law-

ful are provided by the requirements of the warrant

procedure itself. It is the Warrant Clause, and not

the exclusionary rule, that is the principal protection

of the privacy rights of innocent citizens. Further-

more, persons aggrieved by violations of their Fourth

Amendment rights may in some cases initiate legal

proceedings, including damage actions, to vindicate

those rights and deter future misconduct. See 42

U.S.C. 1983; Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U.S, 388.“ Additional legal recourse is

available in an action for return of property wrong-

fully held by public officials. See Warden v. Hayden

supra, 387 U.S. at 307-308; Rule 41(e), Fed. R.

Crim, P.

In sum, we submit that the courts below erred in

concluding that whenever third parties are involved

an additional procedural requirement—demonstration

of a subpoena’s impracticality—is mandated by the

7 1 1 ,

available remedy —— of the maar Ay mtg A

especially potent in cases involving warranted searches.

Fourth Amendment’s prohibition of unreasonable

searches. The reasonableness of searching premises of

third parties is most appropriately ensured not by a

sweeping prophylactic modification of the traditional

warrant procedures, but by the sensitivity of executive

and judicial officers to the specifie cireumstances of

each proposed search. This Court has recognized that,

in search and seizure cases, It he test of reasonable-

ness cannot be fixed by per se rules; each case must be

decided on its own facts.“ South Dakota v. Opperman,

428 U.S. 364, 373, quoting with approval from

Coolidge v. New Hampshire, supra, 403 U.S, at 509-

510 (concurring and dissenting opinion of Black, J.)

The initial assessment that a warranted search is

reasonable under all the circumstances should be and

currently is made by executive officials in the course of

their decision to apply for a warrant. That assessment

is ratified by a neutral magistrate when and if he

determines that a warrant should issue.

In addition, we emphasize that the magistrate re-

mains free to impose any special restrictions on the

manner of the warrant’s execution that he believes

are necessary to guarantee the reasonableness of the

authorized search. In an appropriate case, for ex-

ample, the magistrate may direct that police refrain

from searching particular areas until after an in-

formal request addressed to the owner or occupant

has failed to inspire production of the materials

sought. Finally, if in a given case a party whose

premises have been searched believes that the lack

of a prior opportunity for voluntary cooperation

rendered the subsequent search unlawful, judicial

remedies are available to vindicate Fourth Amend-

ment rights. See p. 29, supra. Those remedies are

properly applied on a case-by-case basis after review

of all the circumstances. Proliferation of procedural

barriers to the issuance of warrants that fall into cer-

tain artificially created categories would prove an

unwise and unworkable means of enforcing the

Fourth Amendment.

C. THE FIRST AMENDMENT CONCERNS IMPLICATED IN THE SEARCII OF

A NEWSPAPER OFFICE DO NOT NECESSITATE INTERPOSITION OF ADDI-

TIONAL PROCEDURAL OBSTACLES TO THE ISSUANCE OF SEARCH

WARRANTS

As is clear from the foregoing discussion, the fed-

eral government’s principal concern in this case arises

from the broad sweep of the decision below, which

would alter the existing procedures for securing evi-

dence by warranted search in cases involving a poten-

tially large, albeit undefined, class of “third-parties.”

In the course of the opinion, however, the courts below

did indicate that adherence to the “subpoena first” rule

is especially important where First Amendment inter-

ests are involved (Pet. App. 14, 28), and by far the

bulk of respondents’ argument (Br. 11-40) on the

merits of their Fourth Amendment claim is devoted

to a defense of the rule promulgated by the courts

below as applied in the context of a search of a news-

paper office. We now turn, accordingly, to a discussion

of the question whether the Fourth Amendment re-

quires a general rule barring the issuance of a warrant

to search “press’’ premises in all cases in which it has

not been demonstrated to the magistrate that a sub-

poena or restraining order would not succeed in secur-

ing production of the materials sought.

This Court has often acknowledged that the protec-

tion of First Amendment liberties is an important

element of the law of search and seizure. See, ¢.g.,

Roaden v. Kentucky, 413 U.S. 496; Stanford v. Teras,

379 U.S. 476; A Quantity of Books v. Kansas, 378 U.S.

205; Marcus v. Search Warrant, 367 U.S. 717. Indeed,

widespread abhorrence for general warrants author-

izing indiscriminate search and seizure of private

books and papers, and concern for the impact of such

actions on freedom of expression, lie at the very origin

of the Fourth Amendment. See Stanford v. Tezas,

supra, 379 U.S. at 481-485; Entick v. Carrington, 19

How. St. Tr. 1030, 95 Eng. Rep. 807; Wilkes v. Wood,

19 How. St. Tr. 1153, 98 Eng. Rep. 489; T. Taylor,

supra, at 29-35. “The Bill of Rights was fashioned

against the background of knowledge that unrestricted

power of search and seizure could also be an instru-

ment for stifling liberty of expression.“ Marcus v.

Search Warrant, supra, 367 U.S. at 729. Certainly one

may infer from the foregoing authorities and con-

sideration of the history of the Fourth Amendment

that where a search of newspaper offices is contem-

plated, the readily identifiable First Amendment in-

terests involved are entitled to thorough consideration.

In this regard, it should be noted at the outset that

federal law enforcement officials rarely if ever engage

in the practice of searching newspaper offices. No case

has been found in which any media facility has been

searched under federal auspices. The solicitude of

the federal government for legitimate press interests

is reflected in Justice Department guidelines for the

issuance of subpoenas to newsmen. See Branzburg .

Hayes, 408 U.S. 665, 706-707 and n.41. These guide-

lines, codified at 28 C. F. R. 50.10, provide that a Ill

reasonable attempts should be made to obtain informa-

tion from nonmedia Sources before there is any con-

sideration of subpoenaing a representative of the news

media” (subsection (b)). They further provide that

In jegotiations with the media shall be pursued in all

cases in which a subpoena is contemplated” (subsec-

tion (e)) and that no Justice Department official

shall request, or make arrangements for, a subpoena to

any member of the news media without the express

authorization of the Attorney General” (subsection

(d)) e While the guidelines are silent on the subject

of obtaining warrants to search news media premises,

it may reasonably be inferred from the policies relat-

ing to subpoenas that great care would similarly be

exercised in the case of searches.

In light of the policy determinations underlying the

guidelines and the history of relevant federal prac-

tices, it can fairly be supposed that federal law en-

forcement efforts would not be seriously hampered by

Justice Department records reveal that the Attorney General

authorized 23 subpoenas to members of the news media in 1976

and 17 in 1977.

a decision of this Court approving the ‘“‘subpoena

first” rule of the courts below in the limited context of

searches of the press as a neutral “third-party” be-

lieved to be in possession of evidence bearing upon a

criminal investigation.

Nevertheless, the observation that such a rule would

not be damaging, or the conclusion that it is generally

a good idea, does not lead inexorably to the result that

the rule is constitutionally required, and we oppose

the result of the courts below insofar as it is embodied

in an across-the-board modification of the warrant

procedure as applied to searches of the press. We sub-

mit that the course selected by the Framers, embodied

in the Warrant Clause of the Fourth Amendment, de-

pends upon the discretion of executive officers and,

more important, upon the detached judgment of a neu-

tral magistrate to guarantee in the first instance that

a warranted search is reasonable under all the cireum-

stances, including the possible impact of the proposed

search on values protected by the First Amendment.

Thus, in acting upon an application for a warrant,

a magistrate may and should consider a number of

factors, including the nature of the items that the

police intend to seize, the nature of the place that the

police intend to search, the importance of the mate-

rials sought to overall law enforcement efforts, and

even the necessity for proceeding by search rather

than by available alternative means that may be less

intrusive on interests of privacy or freedom of ex-

pression. Furthermore, the magistrate may restrict or

adjust the manner and conditions of a warranted

search in order to avoid unnecessary infringement on

privacy and other constitutionally protected values.

This Court has held in a First Amendment context

that “[a] seizure reasonable as to one type of material

in one setting may be unreasonable in a different set-

ting or with respect to another kind of material.”

Roaden v. Kentucky, supra, 413 U.S. at 501. It has

similarly indicated that a search warrant’s description

of items to be seized may be impermissibly general

when the items have potential First Amendment pro-

tection even though the same description might be suf-

ficiently particular for other items. Stanford v. Tezas,

supra, 379 U.S. at 486. Accordingly, where a prosecu-

tor or police officer seeks a warrant authorizing the

seizure of material involving some kind of expression,

such as a photograph, and where the application fur-

ther reveals that the search for that material may

well affect significant First Amendment activity, such

as the publication of a newspaper, the magistrate

should and ordinarily will recognize that special care

must be taken in assessing the reasonableness of the

proposed search and seizure. At a minimum, he should

satisfy himself that the search is intended to achieve

bona fide law enforcement aims and is not designed to

provide an opportunity for harassment.

These views are reflected in a recent statement of

this Court in Andersen v. Maryland, supra, 427 U.S.

at 482 n. 11:

[T Jhere are grave dangers inherent in exeéut-

ing a warrant authorizing a search and seizure

of a person’s papers * * *. Im searches for

papers, it is certain that some imnocuous doen-

ments will be examined, at least cursorily, in

order to determine whether they are, in fact,

among those papers authorized to be seized.

* * * [Responsible officials, including judicial

officials, must take care to assure that [such

searches] are conducted in a mamner that mini-

mizes unwarranted intrusions wpon privacy.

Heeding this exhortation, a magistrate may shape and

structure a warranted search in a way caleulated to

render the search reasonable. In this connection he

may, before authorizing a search, require a showing

that the desired material cannot safely be sought by

less intrusive means. In extreme cases, he may even

conclude that although a warrant application fulfills

the probable cause and particularity requirements of

the Fourth Amendment, no feasible restrictions on the

manner of execution of the proposed search would

suffice to ensure its reasonableness. Under such cir-

cumstances, the magistrate may simplly decline to is-

sue the warrant.

We submit that these protections, comprehended

within the traditional scope of a judiicial officer’s re-

view of an application for authority to search, are the

only ones mandated by the Constitution for safeguard-

ing First Amendment freedoms in the warrant process.

This is not to say that the political branches of gov-

ernment cannot or should not impose additional re-

strictions on searches of media premises. The execu-

tive may, by regulation, install procedures requiring

that press searches receive the advance approval of

high-ranking executive officials. As a substitute or

supplement, it may sharply cireumseribe the occasions

upon which resort to such law enforcement tactics

will be permitted. Or it may choose informally to

eschew searches of press offices and to rely exclusively

on alternate means of acquiring information necessarv

for criminal investigations and prosecutions. For its

part, the legislature may enact similar restrictions

on press searches.“

& recent study reports that 26 states have adopted legislation

conferring upon newsmen some degree of statutory immunity from

subpoenas seeking the source or substance of information acquired

in the course of news gathering activities. See Note, supra, note 6

28 Stan. 1. Rev. at 960-967 and n. 20; see also Comment, —

men’s Privilege Two Years After Braneburg v. Hayes: The Him-

Amendment in Jeopardy, 49 Tul. L. Rev. 417, 429 and n. 100

(1975). A law of this kind is currently in effect in California Ann

Cal. Evid. Code 1070 (West Cum. Supp. 1977). N ,

None of the so-called “reporter's shield” laws addresses itself

explicitly to the subject of searches of press offices. Nevertheless

at least one commentator has suggested that some shield statutes,

and in particular the currently effective amended version of Cali-

fornia’s law, might be read to cover both subpoenas and searches.

2 £2 Chan, Ue Bow, of O0D-602. Respondents them-

selves have acknow this i

wae — argument without fully embracing

The version of the California shield law in effect i

the district ct court's decision in this case insulated —

adjudications of contempt based upon refusals “to disclose the

source of any information procured for publication and published

in a newspaper.” Ann. Cal. Evid. Code 1070 (West 1966). In 1974

the statute was amended to provide identical protection for news.

men’s refusals “to disclose any unpublished information obtained

or prepared in gathering, receiving or processing of information

for communication to the public.” The phrase “unpublished infor-

The government’s limited contention e. ** =

such measures are constitutionally — —

tion of the “subpoena first” rule, modi * y

only to searches of media offices, 7997

judicial endorsement of two classes of Fi 4 ＋

freedoms, one designed for the majority

pst society and one tailored specially for the

press. Such a result would run counter to ares

sions of this Court rejecting in different = xt

sertions of a newsmen’s right to preferent r

ment. See, e.. Branzburg v. Hayes, supra; pcb

Procunier, 417 U.S. 817; Sarbe v. Washington

Co., 417 U.S. 843."

mation” was broadly defined and would clearly cover the photo-

*＋ Wen

sought in thi Ann. Cal. Evid. Code 1079(e) * a

—— 1977 . ‘Nonetheless, the applicability of —

shield lew to searches of news facilities remains problemat

statute guards against contempt adjudications for refusals to

information i proceeding “i which, pursuant to law,

— —— given.” Ann. Cal. Evid. Code 1070

(West Cum. Supp. 1977), 901 (West 1966). Arguab!y, a search 18

i i obligatory pre-

ion of extraordinary procedural requirements an

— issuance of valid warrants for press searches would

In their attempt to defend the rule fashioned by

the courts below, respondents rely heavily on the facts

of this case. They stress (Br. 12) that in this case the

affidavit submitted in support of the search warrant

did not allege that any staff member of the Daily was

suspected of criminal behavior. They further observe

(Br. 11-12) that the photographs sought constituted

mere evidence of a crime rather than weapons, con-

traband, or stolen property. Moreover, probable cause

to believe that the photographs existed and that they

were located at the Datly’s offices was produced not by

independent police investigation but by the Daily’s

own publication of its April 11, 1971 edition, an

activity plainly encompassed within First Amendment

freedoms. Finally, the evidence sought was itself

communicative material deserving First Amendment

protection.

On the basis of these facts, respondents maintain

that rejection of the decision below will produce a

host of consequences detrimental to press activities.

Valuable sources of information who wish to preserve

their anonymity or the confidentiality of their commu—

nications may refuse to deal with newsmen. Newsmen

themselves will hesitate to record and save their recol-

lections of conversations and events, for fear that

later police searches will result in breaches of con-

fidence. Vigorous participation in the editorial process

may be chilled by the threat that subsequent searches

will reveal unpopular positions. It is also suggested

that news media may censor their own publications

or programs in an effort to avoid creating the im-

pression that they possess materials of interest to law

enforcement officials. Last but not least, a search itself

may so thoroughly disrupt ordinary media activity

that a particular edition or broadcast is delayed,

damaged, or eliminated altogether.

As Justice White has accurately explained in his

opinion for the Court in Branzburg v. Hayes, supra,

408 U.S. at 693-695, the empirical likelihood of any or

all of these occurrences is extremely difficult to pre-

dict. In any event, the probability and severity of pos-

sible negative effects on press interests will undoubt-

edly vary substantially from case-to-case, as will the

factual settings in which search warrant applications

are presented to magistrates. This observation sug-

gests that the per se rule fashioned by the courts

below is poorly suited to ensuring that First Amend-

ment freedoms and legitimate law enforcement needs

are properly accommodated.”

be courts below did not comment upon the possible inter-

action between state shield statutes and the “subpoena first” rule.

Assuming that the impracticality of a subpoena must be established

before a valid search warrant may issue, a serious question arises

concerning the impact of an applicable shield law on a magistrate’s

impracticality determination. It could be argued that the mere

existence of such a law should suffice to convince a magistrate

that a subpoena would be impractical, since no contempt sanction

could be imposed on a newsman choosing to disobey a judicial

demand for production of certain materials. A less extreme position

might be that the existence of an applicable shield statute com-

bined with one or more prior refusals by a particular media

representative to deliver information in response to a subpoena

The argument that the Fourth Amendment compre-

hends protection of First Amendment interests within

the case-by-case magisterial evaluation implicit in the

Warrant Clause is fully consistent with earlier deci-

sions of this Court concerning searches and seizures

that potentially impinge on First Amendment free-

doms. For example, in Stanford v. Tezas, supra, this

Court relied upon the particularity requirement of

the Warrant Clause to invalidate a seizure of some

2,000 books belonging to the petitioner, Mr. Justice

Stewart’s opinion for the Court clearly demonstrated

that the assurances included in the Warrant Clause

are sufficiently flexible to take account of First

Amendment values.

Ihe constitutional requirement that warrants

must particularly describe the “things to be

seized” is to be accorded the most scrupulous

exactitude when the “things” are books, and the

basis for their seizure is the ideas which they

contain. * * * We need not decide in the present

ease whether the description of the things to

should be enough to establish the impracticality of further sub-

poenas to the same party. A third conceivable stance would be

that, in the absence of any indication that evidence will be

destroyed, a subpoena should be served before a search is author-

ized, even where the magistrate has every reason to believe that

the newsman subpoenaed will rely on the shield law to protect

his noncompliance. Interpretation and application of the various

state shicld statutes are, of course, exclusively matters of state

concern, and the federal government accordingly expresses no

views on the subject. The issue raised in this footnote does, how-

ever, illustrate one set of problems likely to be created by adoption

of the “subpoena first” rule in the press context.

be seized would have been too generalized to

pass constitutional muster, had the things been

weapons, narcotics or * * * [other] contra-

band of that kind * * *.

379 U.S. at 485-486; footnotes omitted. In Heller v.

New York, 413 U.S. 483, this Court sustained the war-

ranted seizure of an allegedly obscene film, even

though the warrant had been issued in the usual ex

parte manner and no prior adversary hearing had

been conducted on the character of the film, The Court

again emphasized that the necessity for a prior judi-

cial determination of probable cause provides mean-

ingful safeguards even in the First Amendment area.

Id. at 492-493." Other decisions are not to the con-

trary. As the Court noted in Heller, supra, 413 U.S.

at 491; footnote omitted, both a Quantity of Books x.

Kansas, supra, and Marcus v. Search Warrant, supra,

involved “the seizure of large quantities of books for

the sole purpose of their destruction * * *.” The offi-

cial action in those cases plainly obstructed the cireu-

lation of material arguably entitled to First Amend-

ment protection, thereby invoking the need for a prior

adversary hearing. By contrast, in Heller and the pres-

ent case, no limitation was imposed on dissemination.

1 This case, like Heller, involves no prior restraint on expres-

sion. Neither case presents a situation in which police officers

have seized or attempted to seize a party’s only copy of a film

or photograph, thus preventing further exhibition or publication.

To guard against such an eventuality, the Court in Heller directed

that “prompt copying of seized materia] should be permitted. If

copying is denied, return of the seized material should be required.”

413 U.S. at 493 n. 11.

The district court decided this case on respondent’s

motion for summary judgment. We have argued that

the declaratory relief granted to respondents was

awarded on the basis of an erroneous legal theory.

Under the approach outlined in this brief, the courts

below might still find that the search of the Daily’s

offices, though authorized by warrant, was unreason-

able, either because the warrant did not contain nec-

essary restrictions on the manner of its execution or

because under the circumstances no search should have

been permitted at all. The primarily factual nature of

such a determination—and the present controversy

among the parties regarding the factual inferences to

be drawn fom the record as it now stands—suggest

that summary judgment is an inappropriate procedure

for resolution of the underlying dispute in this case.“

We therefore recommend that the judgment be re-

versed and the case remanded to the court of appeals

for whatever further proceedings that court may deem

fitting in light of this Court’s opinion. The court of

appeals should be invited to consider whether, in view

of the revised posture of the case, any constitutional

barriers prevent the award of declaratory relief. See

Asheroft v. Mattis, 431 U.S. 171. Likewise, the court

of appeals should be asked to examine whether, even

in the absence of constitutional obstacles, a federal

court should exercise its statutory discretion to grant

The precise details of the search itself, for example, could be

highly relevant to the result, irrespective of the inclusion vel non

of salutary conditions in the warrant.

a declaratory judgment announcing the unreasonable-

ness of an individua! search. See 28 U.S.C. 2201.

II. ASSUMING RESPONDENTS WERE ENTITLED TO PREVAIL

ON THE MERITS, THE AWARD OF ATTORNEY'S FEES

WAS PROPER

A. THE CIVIL RIGHTS ATTORNEY'S FEES AWARDS ACT AUTHORIZED THE

AWARD OF FEES FOR SERVICES PERFORMED BEFORE THE ACT BECAME

LAW

If this Court should affirm the decision below on

the merits, the award of attorney’s fees should also be

affirmed.

The district court awarded attorney’s fees to the

respondents here because (Pet. App. 50; footnote

omitted ) :

[F Jee shifting is necessary to insure the vindi-

cation of important constitutional 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 attor-

ney’s fees at costs is essential, legst these im-

portant rights be relegated to a mere platitude.

‘Although the court’s award was consistent with the de-

cisions of many federal courts awarding attorney’s fees

to plaintiffs on similar “private attorney general” ra-

tionales. this Court subsequently found such awards

See, e. ., Souza v. Travisono, 512 F. 2d 1137 (C.A. 1), vacated

and remanded, 423 U.S. 809, Cornist v. Richland Parish School

Board, 495 F. 2d 189 (CA. 5); Taylor v. Perini, 503 F. 2d 899

(C. A. 6), vacated and remanded, 421 U.S. 982; Donahue v. Staun-

ton, 471 F. 2d 475 (C.. 7), certiorari denied, 410 U.S. 955;

Fowler v. Schwarewalder, 498 F. 2d 143 (CX. 8) ; Brandenburger

v. Thompson, 494 F. 2d 885 (C.A. 9).

improper in Alyeska Pipeline Co. v. Wilderness Society

421 U.S. 240. In that case, this Court held that —

tions to the general American rule that litigants pay

their own attorney’s fees are for Congress to enact,”

and while Congress had enacted several provisions in

selected statutes permitting a federal court to award

fees to a successful litigant, it had not “extended any

roving authority to the Judiciary to allow counsel fees

as costs or otherwise whenever the courts might deem

them warranted.“ 421 U.S. at 260.

While this case was still pending in the court of

appeals, Congress enacted the Civil Rights Attorney’s

Fees Awards Act of 1976, Pub. L. 94-559, 90 Stat.

— 42 U.S.C. (1976 ed.) 1988. That Act provides:

In any action * * * to enforce a provision of sec-

tion * * 1979 * * * of the Revised Statutes [42

U.S.C. 1983] * * the court, in its discretion, may

allow the prevailing party * * * reasonable attorney’s

n as part of the costs.“ It was specifically designed

to “remedy anomalous gaps in our civil rights laws

created by the United States Supreme Court’s recent

* Alyeska Pipeline Service Co. v. Wilderness

pe S. Rep. No. 94-1011, 94th Cong., 2d Sess. 1

The court of appeals correctly held that the passage

of the Act “revalidated” the district court’s award of

attorney’s fees (Pet. App. 6). This conclusion is amply

The cou ; ; TS

A ———ů ——— tus te pet

cular situations”—incladi .

ood he including when the losing party has acted in

supported by the legislative history of the Act and by

the decisions of this Court.

In Bradley v. Richmond School Board, 416 U.S.

696, this Court affirmed an award of attorney’s fees

for services performed before the statute authorizing

the award was enacted. Although the legislative his-

tory of 20 U.S.C. (Supp. V) 1617, the statute involved

in Bradley, was ambiguous concerning whether it was

to be applied to pending cases (416 U.S. at 716 n. 22),

the Court applied the general rule followed when there

is a change of law while a case is pending on appeal:

it applied the law in effect at the time of decision, in

the absence of clear indication of a contrary legisla-

tive intent or a showing that manifest injustice would

result from application of the new law. 416 U.S. at

711; Thorpe v. Housing Authority of the City of

Durham, 393 U.S. 268; United States v. The Schooner

Peggy, 1 Cranch 102.

In contrast to the legislative history of the statute

involved in Bradley, the legislative history here is

clear. In passing the Civil Rights Attorney’s Fees

Awards Act, Congress repeatedly indicated its intent

that the courts were to have authority to award at-

torney’s fees in pending cases, as well as those in-

stituted after enactment of the Act. The House

specifically rejected an amendment making the Act

applicable only to cases filed after the effective date of

the Act (122 Cong. Ree. H12160 (daily ed., October 1,

1976)). The committee reports both expressly state

that the bill permits awards in pending cases, refer-

ring to Bradley as authority. S. Rep. No. 94-1011, 94th

Cong., 2d Sess. 5 (1976); H.R Rep. 94-1558, 94th

Cong., 2d Sess. 4 n. 6 (1976). Moreover, during the

floor debate, members of Congress consistently stated

that the Act would apply to cases pending at the time

of enactment, and cited Bradley as support for that

point. See, 122 Cong. Ree. H.12160 (daily ed., Octo-

ber 1, 1976) (remarks of Rep. Drinan, floor leader

of the legislation in the House); 122 Cong. Ree.

8.17052 (daily ed., September 29, 1976) (remarks of

Sen. Abourezk). See also, 122 Cong. Ree. H.12155

(daily ed., October 1, 1976) (remarks of Rep.

Anderson).“

In light of this compelling legislative history, the

court of appeals did not consider whether interpret-

ing the statute to apply as Congress intended would

The suggestion of petitioners in No. 76-1484 (Br. 41-42)

that an award of attorney's fees in pending cases may not cover

services performed before the passage of the Act is flatly incon-

sistent with Bradley, in which this Court focused on the propriety

of “the application of the statute to an award of fees for services

rendered prior to its effective date” (416 U.S. at 721), and specif-

ically held that the district court was authorized to allow reason-

able attorney's fees from a date preceding the enactment of the

statute (IA. at 724). Nothing in the legislative history of the 1976

Attorney's Fees Awards Act suggests that Congress intended the

limitation petitioners suggest. Instead, both the extensive reliance

on Hradle and the congressional intent to undo the effects of

the Alyeska decision, supra at 45, strongly indicate that Congress

intended to authorize fee awards for all services performed in

pending cases. The courts of appeals agree. See Rainey v. Jackson

State College, 551 F. 2d 672 (C.A. 5); Martinez Rodriquez v.

Jiminez, 551 F. 2d 877 (C.A. 1); Bond v. Stanton, 555 F. 2d 172

(CA. 7); Finney v. Hutto, 548 F. 2d 740 (C.A. 8), certiorari

granted, October 17, 1977, No. 76-1660.

result in manifest injustice. Nor do we think that

Bradley suggests that such an inquiry is required in

these circumstances.”

In any event, here, as in Bradley, an award of at-

torney’s fees for services performed before the Act

became effective works no injustice. In concluding

that the retroactive award in Bradley worked no in-

justice, the court considered (a) the nature and

identity of the parties, (b) the nature of their rights,

and (e) the nature of the impact of the change in

law upon those rights.” 416 U.S. at 717. The Court’s

analysis in Bradley supports the award of fees here.

(a) In Bradley, the Court noted a disparity in the

ability of the publicly funded school board and the

plaintiff school children to protect their rights, and

noted that the suit rendered the Board a substantial

service by bringing it into conformity with the Con-

stitution. Similarly, here the respondent is a uni-

versity newspaper, while the petitioners, although

named individually, are defended by their employers,

the City of Palo Alto and the County of Santa Clara,

and these entities will be responsible for any judg-

ments against them (Ann. Cal. Gov. Code 825 (West.

The question considered in Bradley, and here resolved by

Congress, is whether the fact of retroactivity itself makes the

award unjust. Of course, the district court must always consider

whether shifting the costs of litigation in the particular case is

just, as it did here (Pet. App. 43-53) ; petitioners are incorrect in

suggesting that the award of attorney’s fees is the inevitable

result of a civil rights complaint (Bergna Br. 27).

21 See also Cal. Gov. Code 995 et « +. and Williams v. Horvath,

16 Cal. 3d 834. 548 P. 2d 1125, in which the Califorma Supreme

Court cites the district court opinion in this case as suppert for a

Cum. Supp. 1977) ).” And, as in Bradley, this action if

affirmed on the merits, will have accomplished a sub-

stantial public service to the law enforcement commu-

nity by bringing its actions into compliance with

constitutional standard.

(b) In Bradley, the enactment of the statute per-

mitting the award of attorney’s fees did not affect any

previously unconditional right of the School Board to

determine the use of the funds the court required to

he used to pay attorney’s fees. The situation here is

precisely similar. In both cases, “[t]hese funds were

essentially held in trust for the public, and at all times

the Board [or, here, the City and County] was sub-

ject to such conditions or instructions on the use of the

funds as the public wished to make through its duly

elected representatives.” 416 U.S. at 720. Cf. Greene

v. United States, 376 U.S. 149.

(e) Finally, the change in the law relating to the

award of attorney’s fees had no impact, either here

or in Bradley, on the substantive law on the basis of

which the case was decided—there, the application of

holding tuat Section 825 applies to cases brought against state em-

ployees under 42 U.S.C. 1983. Petitioners’ briefs do not dispute

the district court’s assertion (Pet. App. 52-53) that the public

employers will pay any judgment for attorney's fees entered in

this case. See Bergna Br. 32, and Zurcher Br. 40 and n. 23. Al-

though the Zurcher brief states that holding the officers responsible

for the award of fees would “punish them,” that brief was filed by

the City Attorney for the City of Palo Alto, employer of the de-

fendant officers (see A. 16, 45), indicating that the City is de-

fending the officers pursuant to Section 825 and will also, under

that statute, be responsible for any award of fees against these

petitioners.

the Constitution to school desegregatiion, and here, the

responsibilities of law enforcement personnel under

the Fourth Amendment. Moreover, when this case was

filed and litigated in the district comrt and until the

Alyeska decision, an award of attormey’s fees was it-

self possible under the private aittorney general“

theory. See La Raza Unida v. Voljpe, 57 F. R. D. 94

(N.D. Calif.). Thus, as in Bradley, there is no indica-

tion that, if petitioners had known of their potential

liability under the 1976 Act, this knowledge “would

have caused [them] to order [their] conduct so as to

render this litgation unnecessary and thereby pre-

elude the ineurring of such costs.“ 416 U.S. at 721.“

Petitioners argue (Zurcher Br. 43-45) that retro-

active application of the Civil Rightts Attorney’s Fees

Award Act is manifestly unjust in cases challenging

actions taken in good faith in conformity with then-

existing legal standards. But the defendants’ good

faith—either in taking the action alleged to violate

the Constitution or in defending tihe suit—is not a

proper basis for precluding application of the Act,

either prospectively or retroactivelly. As this Court

recognized in Alyeska Supra, 421 U.S. at 258-259, it

has long been the rule that attormey’s fees may be

awarded against a party who has acted in bad faith,

and Alyeska did not alter that rule. Accordingly, there

would have been no purpose in enactting the Attorney's

n The California law under which the prublic employers of the

petitioners provide representation and indermnification has been in

effect since 1963.

;

Fees Awards Act if it were to apply only where the

losing party had acted in bad faith.“ Moreover,

whether the Act is applied prospectively or retroac-

tively, officials acting in good faith pursuant to valid

laws and defending suits arising therefrom would

searcely be influenced by the possibility that their ac-

tions may eventually result in tne award of attorney’s

fees against the public entities they represent. Awards

of fees are appropriate under the Act when litigation

vindicates public policy inherent in constitutional

principles. It was therefore proper for the district

court, after finding that this action had done so, to

exercise its discretionary authority to award attor-

ney's fees.

B. THE AWARD OF FEES HERE VIOLATES NO IMMUNITY FROM SUIT OF

THE PETITIONERS

Petitioners in No. 76-1600 contend (Bergna Br. 26-

35) that requiring them to pay respondents’ attorney’s

A holding that attorney's fees should ordinarily not be

awarded unless the actions of the party to be charged were in clear

violation of constitutional or statutory principles would be in-

consistent with the statutory purpose—which is to encourage

plaintiffs to seek to vindicate constitutional principles, not merely

to deter egregious and obvious violations. In Johnson v. Georgia

lighway Express, Ine 488 F. 2d 714, 718 (CA. 5), the Fifth

Circuit stated that attorney's fees in cases presenting novel issues

siould appropriately compensate the attorney “for accepting the

challenge.” Congress, in passing the Attorney's Fees Awards Act,

cited Johnson as correctly explaining standards governing awards

of fees. See S. Rep. No. 94-1011, supra, at 6; H.R. Rep. NO. 94-1558,

supra, at 8. 122 Cong. Rec. H12160 (daily ed., October 1, 1976)

(remarks of Rep. Drinan); 122 Cong. Rec. 816491 (daily ed.,

September 23, 1976) (remarks of Sen. Tunney).

fees is inconsistent with their immunity, as judicial

and prosecuting officials, from suits for damages. The

common law official immunity upon which petitioners

rely is subject to limitation by statute, Wood v.

Strickland, 420 U.S. 308, 316; Imbler v. Pachtman,

424 U.S. 409, 434 (White, J., concurring). Thus, the

enactment of the Attorney’s Fees Awards Act re-

moved whatever immunity to the award of attorney's

fees petitioners might have enjoyed in the absence of

the Act.

The Act specifically authorizes an award of attor-

ney's fees to “the prevailing party” in “any action”

brought under 42 U.S.C. 1983, as was this one. Al-

though Congress did not provide for the naming of

municipalities as defendants in cases brought under

42 U.S.C. 1983 (Monroe v. Pape, 365 U.S. 167), state

and local officials clearly are subject to that act as

persons“ acting under color of” state laws. As Con-

gress noted in enacting the Attorney’s Fees Awards

Act (S. Rep. No. 94-1011, supra, at 5; footnote

omitted ) :

[D]efendants in these cases are often State or

local bodies or State or local officials. In such

cases it is intended that the attorneys’ fees, like

other items of costs, will be collected either di-

rectly from the official, in his official capacity,

from funds of his agency or under his control,

or from the State or local government (whether

or not the agency or government is a named

party).

The House Report is to the same effect (H.R. Rep.

No. 94-1558, supra, at 7).“

In light of this legislative history, it would be inap-

propriate to construe the broad language of the Civil

Rights Attorney’s Fees Awards Act as incorporating

an exception comparable to the common law immunity

of certain officials from suits for damages that this

Court has held to be preserved in 42 U.S.C. 1983 (see

Tenney v. Brandhove, 341 U.S. 367; Imbler v. Pacht-

man, supra). That common law immunity, which pro-

tects the covered official only from personal suits ior

damages (see Imbler v. Pachtman, supra, 424 U.S. at

428-429), is entirely compatible with a statutory

award of attorney’s fees when equitable relief has

been secured against such an official. Like an award of

* Contrary to petitioners’ suggestion (Bergna Br. 31-32), it

is not necessary that municipalities be subject to suit in order to

ä aailiine Che <iiligution to pay eppesing etteemy’s

There is no requirement that a governmental entity must

expenditure of the funds of that entity. Indeed, in /'itepatrick v.

Biteer, 427 US. 445, 449 n. 4, this Court approved an award of

backpay and attorney's fees to be paid from state funds, although

neither the state nor any state agency was a named defendant.

Since the public entity confers upon its officers the authority to

act on its behalf, it is entirely appropriate to require the entity

to pay attorney’s fees in civil rights suits challenging those actions,

regardless of whether the entity has been named as a defendant.

In any event, although the district court noted, and petitioners

evidently agree (see supra, note 21) that the governmental

entities employing petitioners would pay ary fees awarded here,

they are not subject to any court order to do so, and thus this

case does not raise the question of a federal court's jurisdiction to

enter such an order. That question is raised in Hutto v.

No 76-1660, certiorari granted, October 17, 1977, and will be dis-

cussed in the government’s brief amicus curiae in that case.

court costs, the award is intended neither to compen-

sate victims nor to punish the official for past, illegal

acts. Nor is the possibility of such an award, to be

paid with publie funds,” likely to deter public officials

in the conscientious performance of their duties.

CONCLUSION

The judgment of the court of appeals should he

reversed and the case remanded for further proceed-

ings. If, however, the judgment on the merits is

affirmed, the award of attorney’s fees should also be

affirmed.

Respectfully submitted.

Wane H. McCrer, Jr.,

Solicitor General.

BensaMin R. Crvitetti,

Assistant Attorney General.

Anprew L. Frey,

Deputy Solicitor General.

Harriet S. SHaprro,

Peter Buscemi,

Assistants to the Solicitor General.

ELLIot SCHULDER,

Attorney.

January 1978.

The committee reports referred to in the preceding paragraph

obviously contemplate that awards under the Act will be paid

with public funds. In the unlikely event that a court were to award

attorney's fees without specifying that they were to be paid from

public funds, and the employing governmental entity refused to

pay them, the court might well reconsider the award against the

official, or direct his employer to pay it. Although not all states

specifically provide by statute for the indemnification of public

employees, they evidently all do provide for legal assistance ( Brief

amicus curiae of Alabama, et al., App. A).

US COVERNMERT PRINTING OFFICE t978

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