# Amicus Brief — Zurcher v. Stanford Daily > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1773%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1978 - **Citation:** 436 U.S. 547 ## Text 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 v. 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, At 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 in 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) 2 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 4 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 5 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 7 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 11 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 12 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). 13 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, 14 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 15 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. 16 543, 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”). 17 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 18 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). 19 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 20 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). 21 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 = — — 23 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- 27 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. 29 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. 30 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 31 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. 34 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 35 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 37 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 41 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. 42 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. 43 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. 44 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). 45 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 47 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. 48 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 49 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. 50 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. ; 51 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). 52 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). 53 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