Petition — Norton v. United States

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Val Supreme Court, U. i: |

| FILED |

| SEP 18 1978 \

IN THE | RODAK, AR., CLERK

SUPREME COURT OF THE UNITED ca

OCTOBER TERM, 1978

No 78-46]

ELIZABETH ANN NORTON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN D. GRAD

HIRSCHKOP & GRAD, P.C.

108 North Columbus Street

Post Office Box 1226

Alexandna, Virginia 22313

(703) 836-6595

ARTHUR H. BLITZ

8700 Georgia Avenue

Silver Spring, Maryland 20910

(301) 588-8750

ROBERT D. SALZER

8700 Georgia Avenue

Silver Spring, Maryland 20910

(301) 589-2442

Counsel for Petitioner.

A CURES | ASTON

Washington, 0.C. + THIEL PRESS + (202) 638-4521

(?)

TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT

This Case Presents A Case of Extreme Importance

Under 2680(h) of The Federal Torts Claim Act

With Major Impact Upon The Rights of Innocent

Victims of Illegal Federal Law Enforcement Behavior

To Recover Damages Under The Torts Claim Act As

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APPENDIX:

— United States Code, Title 28, 1346(b)............

— United States Code, Title 28, 2674 .............

— United States Code, Title 28, 2680(h)............

— Order of the United States District Court Denying

Defendants’ Motion for Summary Judgment and

Granting Plaintiff's Motion for Summary Judg-

ment on the Issue of Liability...............

— Order of the United States Court of Appeals

Reversing and Remanding Order of the United

SUE PE I See eh wwe ewes eeees

— Order of the United States Court of Appeals

Denying Petition for Rehearing and/or Sugges-

tiom for Rehearing En Banc... .. 2... ccces

TABLE OF AUTHORITIES

Cases:

Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) ....

Butz v. Economou, U.S , 46 U.S.L.W. 4952

i es cca e ld WG Kh cae e twas Oe

(11)

Constitution:

Fourth Amendment to the United States Constitution

pub eedeeteeesesereedereceevecerreres passim

Statutory Provisions:

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Be We PREP EPc ccc c ete wecesectwanseseuce 2,4

BO UB. SISGGG) oc ccc ccccctcrccnccccecens 4,5

BS UDR BROS cc ccc teen accacteeeweccceseccees 2

EA Oe ey Pe re var . . passim

Other:

Pub. L. 93-253, §2, 88 Stat. 50 (March 16, 1974)........ 5

DEW CHOUs TUNG, SUMO MLOID) cc cede sccrcccciceogees 6

Senate Committee on Government Operations,

Memorandum on No-Knock Legislation, August

BOy BOIS ve vccesesaescrssccaceceevesoete 7, 8,9

S. Rep. No. 93-469, 93d Cong., Ist Sess. (1973) ..... passim

S. Rep. No. 93-588, 93d Cong., Ist Sess. (1973) ..... passim

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

ELIZABETH ANN NORTON,

Petitioner,

Vv,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner Elizabeth Ann Norton respectfully requests

that a Writ of Certiorari issue to review the judgment of

a divided panel of the United States Court of Appeals

entered on July 19, 1978, which reversed the opinion of

the District Court below and remanded to the District

Court for further proceedings.

OPINIONS BELOW

The opinion of the District Court is printed at 427 F.

Supp. 138. The opinion of the United States Court of

Appeals is not yet published. Copies of both opinions are

attached,. App. at 3a and 31a, respectively.

]

JURISDICTION

Petitioner seeks review of a decision of the United

States Court of Appeals for the Fourth Circuit dated

July 19, 1978, rehearing denied August 18, 1978, rever-

sing a judgment of the District Court in petitioner’s favor,

entered March 25, 1977. Jurisdiction is invoked pursuant

to 28 U.S.C. §1254(1).

QUESTION PRESENTED

Whether in a suit under the Federal Torts Claim Act

and 28 U.S.C.§ 2680(h) therein for constitutional and

state law torts committed by federal law enforcement

agents the United States can raise as its defense the good

faith and reasonable belief of its employees in the legality

of their conduct.

STATUTORY PROVISIONS

The following statutory provisions are in issue and are

set forth verbatim in the Appendix:

28 U.S.C. § 2674

28 U.S.C. § 2680(h)

28 U.S.C. § 1346(b)

STATEMENT OF THE CASE

On the evening of March 15, 1975, the Alexandria,

Virginia Police Department received an anonymous

phone call regarding the purported whereabouts of Patri-

cia Campbell Hearst, then a nationally sought fugitive.

The caller, now believed to have been a disgruntled neigh-

bor of plaintiff, stated that Ms. Hearst was occupying

Apartment 10 at 649 Notabene Drive in Alexandria. This

information was immediately relayed to the Alexandria

branch office of the Federal Bureau of Investigation.

Agent Robert J. O’Brien was contacted and placed in

charge of the investigation. Agent O’Brien was the coor-

dinator of the Alexandria Division of the nationwide

search for Ms. Hearst and other allegedly connected fugi-

tives. He and three other agents proceeded to the Alex-

andria Police Department.

A check of the locater crisscross indices published by

the teleph »ne company indicated that the apartment was

occupied by one Victor Henry Evol, although that criss-

cross index was outdated by several months. Ms. Norton,

the plaintiff below, had leased the apartment on Novem-

ber 1, 1974. After checking the index, without any fur-

ther investigation and without obtaining a warrant from

a magistrate on duty at the police station, the four F.B.I.

agents departed for a site near 649 Notabene Drive,

where they were met by two Alexandria police officers

at approximately 9:30 P.M. The F.B.I. agents were armed

with individual revolvers and two shotguns, plus tear gas

equipment. None of the men was in uniform.

After a brief survey of the immediate area, it was

decided to resolve the question of Patricia Hearst’s

presence in the plaintiff’s apartment itself. Four of the

men approached the apartment in which a light was on

and a stereo was being played. One of the agents knocked

on the door. In response the plaintiff, alone in her apart-

ment, asked “‘Who is it?” After being advised that it was

the F.B.I., plaintiff requested identification. Agent

O’Brien told plaintiff to open the door to view their

credentials, but she again refused to open the door with-

out first being satisfied that the people at the door were

in. fact F.B.I. agents. Following this refusal, four men

attempted to forcibly open the door to Apartment 10

by striking it quite forcibly. Plaintiff finally opened the

door. Agents entered and searched the apartment with

their weapons drawn. Plaintiff was guarded and detained

during the entire ordeal. While the agents now concéde

that she was visibly shaken, psychiatric evidence at the

damages hearing indicated that plaintiff in fact suffered

severe psychological damages from the trauma.

The Petitioner instituted this suit in the United States

District Court for the Eastern District of Virginia, Alex-

andria Division, on January 5, 1976, against the four

F.B.I. agents, the two Alexandria police officers and the

United States, seeking monetary and declaratory relief

for the wrongful invasion of her Fourth Amendment

rights as well as for the common law torts of assault,

trespass and false imprisonment. The United States was

sued under the Federal Tort Claims Act, 28 U.S.C.

§ § 1346(b), 2674 and 2680(h).' On cross-motions for

Summary Judgment on the question of the liability of

the United States for the intrusion, the District Court, on

January 26, 1977, denied the defendants’ motion and

granted the plaintiff’s motion. App. at 3a.

The Court concluded that at the moment of entry,

the facts and circumstances within the defendants’ know-

ledge and of which they had reasonably trustworthy in-

formation were not sufficient to warrant a prudent man

to believe that Ms. Hearst was inside the apartment. The

District Court also concluded that the illegal entry

resulted in the establishment of a prima facie case of

assault, trespass and false imprisonment under Virginia

law.

Finally, the Court ruled that while the individual de-

fendants would not be subjected to monetary liability for

either constitutional or common law torts, if they acted

under a reasonable good faith belief in the legality of

their actions, the United States could not, as a matter of

' The individual F.B.I. agents and police officers were non-

suited by plaintiff following the granting of Summary Judgment

in her favor.

law, assert this immunity. Having found tortious be-

havior, the District Court held the United States liable.

The United States appealed this, and only this, portion of

the District Court’s ruling. * Its appeal was sustained on

July 19, 1978 by the United States Court of Appeals for

the Fourth Circuit by a 2 to 1 decision. Petitioner moved

in the Court of Appeals for a rehearing and/or suggestion

for hearing en banc. The petition for rehearing was

denied by a 2 to 1 decision, copy attached, App. at 49a.

REASONS FOR GRANTING THE WRIT

THIS CASE PRESENTS A CASE OF EXTREME IMPOR-

TANCE UNDER 2680(h) OF THE FEDERAL TORTS

CLAIM ACT WITH MAJOR IMPACT UPON THE RIGHTS

OF INNOCENT VICTIMS OF ILLEGAL FEDERAL LAW

ENFORCEMENT BEHAVIOR TO RECOVER DAMAGES

UNDER THE TORTS CLAIM ACT AS AMENDED IN

1974.

In 1974, the Congress amended the Federal Tort

Claims Act so that 28 U.S.C. § 2680(h) now reads: ?

The provisions of this chapter and section 1346

(b) of this title shall not apply to—

(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution,

abuse of process, libel, slander, misrepresentation,

deceit, or interference with contract rights: pro-

vided, that with regard to acts or omissions of in-

vestigative or law enforcement officers of the United

States Government, the provisions of this chapter

_and section 1346(b) of this title shall apply to any

claim arising, on or after the date of the enactment

* The United States appealed neither the finding of a con-

stitutional violation nor the District Court’s award upon trial of

damages of $12,500.

* Pub. L. 93-253, §2, 88 Stat. 50 (March 16, 1974).

of this proviso, out of assault, battery, false im-

prisonment, false arrest, abuse of process, or mal-

icious prosecution. For the purpose of this sub-

section, “investigative or law enforcement officer”

means any officer of the United States who is em-

dence, or to make arrests for violations of Federal

law.

The impetus for the 1974 amendment to the FTCA

was a series of highly publicized narcotic raids, illegally

conducted, which took place in Collinsville, [linois, in

the spring of 1973.* Senator Charles Percy (Ill.), the

amendment’s principle author,’ was outraged. His anger

did not simply focus, however, on the fact that these

raids occurred within his home state. He strongly felt

that these raids were the result of the liberal no-knock

law, 21 U.S.C. § 79; that the overzealous conduct of fed-

eral law enforcement agents in these raids violated the

victim’s Fourth Amendment rights and finally that the

Federal Tort Claims Act should be altered so that “in the

future individual citizens be permitted to bring actions

directly against the Federal Government to recover for

the damage they sustained due to the intentional and

willful misdeeds of Federal officers.” Sen. Rep. No.

93-469, supra, at 29-33 (emphasis added).

* In April of 1973 federal agents conducted narcotics raids on

the homes of two innocent families. See, S. Rep. No. 93-469,

93d Cong., Ist Sess., 21-29, 29-35 (individual views of Senator

Percy) (1973). The forcible entries were accompanied by out-

rageous conduct of the federal agents which included threats of

bodily harm, physical restraint of two unarmed people, brandish-

ment of weapons and failure to identify themselves as federal

agents. See, 119 Cong. Rec. 23246 (1973), quoting the St. Louis

Dispatch, April 29, 1973, at 1A, Col. 1.

°S. Rep. No. 93-588, 93d Cong., Ist Sess. (1973).

Senator Percy was most acutely concerned with

creating a right of individuals for recompense for the

damage they sustained during illegal search and seizures.

regardless of the “good faith” of government agents. °

Noting that this Court in Bivens v. Six Unknown Agents,

403 U.S. 388 (1971), held that the violation of the

Fourth Amendment command against unreasonable

searches and seizures gave rise to a federal cause of ac-

tion for damages against the offending agent, Senator

Percy further noted that

[W] hile this [an action against the individual agent]

gives victims of abusive tactics some opportunity for

relief, their remedy is severely limited by the ease

with which the agents can usually establish the

defense of having acted in good faith and with

probable cause . . . it seems to me that it is now time

to amend the Federal Tort Claims Act so that vic-

tims of deliberate violence and terrorism at the

hands of Federal agents can be better compensated,

if only monetarily, for their losses. S. Rep. No. 93-

469, supra, at 36.

Senator Percy accordingly introduced as an amend-

ment to a pending bill the legislation which presently is

§ 2680(h) of Title 28. The Senate Committee on Govern-

ment Operations accepted the amendment as proposed,

and in the accompanying report, stated:

[T]he effect of this provision is to deprive the Fed-

eral Government of the defense of sovereign immun-

ity in cases in which Federal law enforcement

6 “One of the most shocking aspects of drug raids on inno-

cent victims is the absence of an effective legal remedy against

the Federal government for the damages done to their homes,

harm done to their persons, or for the pain, suffering and humil-

iation they were forced to undergo.” S. Rep. No. 93-469, 93d

Cong., Ist Sess. (1973).

agents, acting within the scope of Federal law, com-

mit any of the following torts ... the Committee

amendment would submit the Government to

liability whenever its agents act under color of law

so as to injure the public search and seizures that

are conducted without warrants or with warrants

issued without probable cause. S. Rep. No. 93-

588, supra (emphasis supplied).

Shortly before writing the Senate report, the Senate

Committee on Government Operations prepared a memo

which further underscores the Committee’s intent to do

away with the good faith defense to the United States

liability:

It is not the intention of this amendment to allow

any other defenses [besides those in section 2680

(h)] that may be available to individual defendants

by state or federal law, custom, or practice to be

asserted [by] the government. Congress does not

oppose, however, the assertion of defenses of good

faith and reasonable belief in the validity of the

search and arrest on behalf of individual govern-

ment defendants, so long as it is understood that the

government’s liability is not co-terminous with that

of the individual defendants. ’

The emphasis was thus on providing a remedy both for

victims of negligence and intentional torts by the actions

of federal agents. Just as the “good faith” of a negligent

mail truck driver was irrelevant to the government’s

liability in a pre-1974 Federal Torts Claim Act, suit, so

should the “good faith” of a federal law enforcement

agent be irrelevant when he commits a tort that abuses

the powers granted him and through tortious conduct

causes injury to innocent victims.

7Senate Committee on Government Operations, Memorandum

on No-Knock Legislation, August 28, 1973, at 5.

In the United States Court of Appeals the government

suggested a contrary interpretation of the legislative his-

tory.* While the Court of Appeals acknowledged the clear

intent of the bill’s sponsor, Senator Percy, and of the

Committee memorandum, the Court chose to look only

to the official Senate report on the matter and, though

finding the language of that report not as clear as the

sponsor’s and the above-mentioned memorandum, held

that “‘a fair reading of the Report supports the govern-

ment’s position that the remedy against the government

under FTCA is inextricably tied to the remedy against

the individual officer under Bivens [which is limited by

the good faith defense].”” App. at 43a. So concluding,

the Court of Appeals reversed and remanded the matter

for trial of the good faith issue.

Judge Butzner’s dissent strongly agreed with the

District Court that the legislative history supported

petitioner’s position. Refusing to follow the majority’s

invocation of “federal common law,” he chose instead

to remain consistent with the principles of respondeat

superior, upon which the Federal Torts Claim Act is

founded. Under the doctrine of respondeat superior,

Judge Butzner found it inappropriate to allow the gov-

ernment to invoke as the principal an immunity (good

faith defense) personal only to its agents.

As a practical matter, whether or not the United States

can assert the good faith defense under the FTCA will

have enormous impact on the ability of innocent victims

5 The government also raised several other technical defenses

such as an alleged distinction between “‘privilege’’ and “immun-

ity,”’ arguing that the good faith defense was really a privilege and

thus subject to invocation by a principal, the United States, under

the doctrine of respondeat superior. This and other arguments

were rejected by the Court of Appeals. Note 8, App. at 40a.

to recover for damages sustained by virtue of illegal fed-

eral police activities. In petitioner’s case, for example,

the District Court’s finding of illegal intrusion or of

actual psychological damages suffered is uncontested.

Whether she can, however, effectively dispute a claim of

good faith (here presumably innocent mistake with

animus absent) is—though not conceded—more difficult

than showing constitutional deprivations alone. And

certainly the Court of Appeals decision leaves petitioner

in no better a position than if the Percy 1974 amendment

had not been enacted.

It is represented that hundreds, if not thousands, of

persons with claims against the government under § 2680

(h) will be affected by the final court ruling on the sub-

ject. At a time when this Court has been issuing numer-

ous rulings on the good faith defense, the most recent,

e.g., Butz v. Economou, __ U.S.__, 46 U.S.L.W. 4952

(June 29, 1978), a definitive ruling by this Court on the

propriety of the application of the defense under § 2680

(h) is of critical importance.

“TN

CONCLUSION

For the foregoing reasons, petitioner urges that this

Court issue a Petition for Certiorari to review the decision

below.

Respectfully submitted,

JOHN D. GRAD

HIRSCHKOP & GRAD, P.C.

108 North Columbus Street

Post Office Box 1226

Alexandna, Virginia 22313

(703) 836-6595

ARTHUR H. BLITZ

8700 Georgia Avenue

Silver Spring, Maryland 20910

(301) 588-8750

ROBERT D. SALZER

8700 Georgia Avenue

Silver Spring, Maryland 20910

(301) 589-2442

Counsel for Petitioner.

September 18, 1978

APPENDIX

§1346. United States as defendant.

(b) Subject to the provisions of chapter 171 of this

title, the district courts, together with the United States

District Court for the District of the Canal Zone and the

District Court of the Virgin Islands, shall have exclusive

jurisdiction of civil actions on claims against the United

States, for money damages, accruing on and after Jan-

uary 1, 1945, for injury or loss of property, or personal

injury or death caused by the negligent or wrongful act

or omission of any employee of the Government while

acting within the scope of his office or employment,

under circumstances where the United States, if a private

person, would be liable to the claimant in accordance

with the law of the place where the act or omission

occurred.

§ 2674. Liability of United States

The United States shall be liable, respecting the pro-

visions of this title relating to tort claims, in the same

manner and to the same extent as a private individual un-

der like circumstances, but shall not be liable for interest

prior to judgment or for punitive damages.

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

law of the place where the act or omission complained

of occurred provides, or has been construed to provide,

for damages only punitive in nature, the United States

shall be liable for actual or compensatory damages,

measured by the pecuniary injuries resulting from such

death to the persons respectively, for whose benefit the

action was brought, in lieu thereof. June 25, 1948, c.

646, 62 Stat. 983.

§ 2680. Exceptions

The provisions of this chapter and section 1346(b)

of this title shall not apply to—

(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse

of process, libel, slander, misrepresentation, deceit, or

interference with contract rights: Provided, That, with

regard to acts or omissions of investigative or law enforce-

ment officers of the United States Government, the pro-

visions of this chapter and section 1346(b) of this title

shall apply to any claim arising, on or after the date of

the enactment of this proviso, out of assault, battery,

false imprisonment, false arrest, abuse of process, or

malicious prosecution. For the purpose of this subsec-

tion, “investigative or law enforcement officer’? means

any officer of the United States who is empowered by

law to execute searches, to seize evidence, or to make

arrests for violations of Federal law.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Filed Jan 26, 1977]

ELIZABETH ANN NORTON, _ )

Plaintiff, )

x Civil Action

) No. 76-3-A

JOHN TURNER, ET AL, )

Defendants. _)

ORDER

In accordance with the memorandum of the Court

this day filed, and deeming it just and proper so to do,

it is ADJUDGED AND ORDERED that the defendants’

motion for summary judgment be, and the same is here-

by, denied.

It is further ORDERED that the plaintiff’s motion

for summary judgment as to the United States on the

issue of liability be, and the same is hereby, granted.

Let the Clerk set this matter for the next civil docket

call. Let the Clerk further send a copy of this Order and

the accompanying Memorandum to all counsel of record.

/s/ Robert R. Merhige, Jr.

United States District Judge

Date: 1/26/77

eee

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

ELIZABETH ANN NORTON,

Plaintiff, Civil Action

No.

76-3-A

JOHN TURNER, ET AL.,

Defendants.

)

V. )

)

MEMORANDUM

Plaintiff, Elizabeth Ann Norton, brings this action

against certain federal and local law enforcement officers

and the United States of America to redress an alleged

wrongful entry and search of her apartment. The plaintiff

seeks both monetary and declaratory relief. The action is

brought pursuant to the Constitution of the United States,

42 U.S.C. § 1983 and state law. Jurisdiction is attained

pursuant to 28 U.S.C. § § 1331, 1332, 1343 and 1346(b).

The matter comes before the Court on cross-motions for

summary judgment as to liability.

The gravaman of the plaintiff’s complaint is the con-

tention that her apartment was illegally entered by the in-

dividual defendants in violation of her rights under the

Fourth Amendment to the Constitution. Her constitu-

tional claims are premised upon Bivens v. Six Unknown

Agents, 403 U.S. 388 (1971), and the provisions of 42

U.S.C. § 1983. Pendent state common law claims of

assault, trepass, and false imprisonment are also asserted.

The United States of America is sued under the Federal

Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), 2674,

and 2680(h).! The defendants contend that their actions

were legal under the Fourth Amendment and the common

law. Secondarily, they maintain that they acted under a

reasonable good faith belief in the legality of their actions

and, therefore, are immune from suit. See Pierson v. Ray,

386 U.S. 547, 557 (1967); Bivens v. Six Unknown Agents,

456 F.2d 1339 (2d Cir. 1972); Hill v. Rowland, 474 F.2d

198 U.S.C. §1346(b) confers exclusive jurisdiction upon

district courts

of civil actions on claims against the United States, for

money damages, accruing on and after January 1,

1945, for injury or loss of property, or personal injury

or death caused by the negligent or wrongful act or

omission of any employee of the Government while

acting within the scope of his office or employment,

under cirucmstances where the United States, if a pri-

vate person, would be liable to the claimant in accord-

ance with the law of the place where the act or omis-

sion occurred.

The liability of the United States is predicated upon 28 U.S.C.

§ 2674 which provides

The United States shall be liable, respecting the

provisions of this title relating to tort claims, in the

same manner and to the same extent as a private in-

dividual under like circumstances, but shall not be

liable for interest prior to judgment or for punitive

damages.

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

the law of the place where the act or omission com-

plained of occurred provides, or has been construed

to provide, for damages only punitive in nature, the

United States shall be liable for actual or compensatory

damages, measured by the pecuniary injuries resulting

from such death to the persons respectively, for whose

benefit the action was brought, in lieu ther of. June

25, 1948, c. 646, 62 Stat. 983.

[footnote continued]

1374, 1377 (4th Cir. 1973), Plaintiff’s contentions are

that the alleged entry was illegal, that the claims of im-

munity of the individual agents are not ripe for decision

under the instant motions, and the the immunity defense,

if any, is not available to the United States. .

I. The Facts

The parties have stipulated many of the material facts.

At approximately 8:13 p.m. on Saturday, March 15,

1975, Officer Donald C. Green of the Alexandria, Virginia

Police Department received an anonymous telephone call

regarding the whereabouts of Patricia Campbell Hearst,

then a nationally renowned fugitive. William and Emily

Harris were also being sought on related matters. Officer

Green immediately advised Agent Mackey of the Federal

Bureau of Investigation’s Alexandria field office of the

call and relayed the conversation as follows:

An action of this nature is authorized by 28 U.S.C.A. §2080(h)

The provisions of this chapter and section 1346(b)

of this title shall not apply to—

(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution,

abuse of process, libel, slander, misrepresentation,

deceit, or interference with contract rights: Provided,

That, with regard to acts or omissions of investigative

or law enforcement officers of the United States Gov-

ernment, the provisions of this chapter and section

1346(b) of this title shall apply to any claim arising,

on or after the date of the enactment of this proviso,

out of assault, battery, false imprisonment, false

arrest, abuse of process, or malicious prosecution.

For the purpose of this subsection, “investigative or

law enforcement officer” means any officer of the

United States who is empowered by law to execute

searches, to seize evidence, or to make arrests for

violations of Federal law.

“You know Patty Hearst is supposed to be in

Pennsylvania but she’s not. She’s currently at 649

Notabene Drive, Apartment 10, in Alexandria and

she’s been there for the last week or ten days. She

has cut her hair and she’s with one of the people

who left with her from California.”

Agent Mackey thereupon advised Special Agent-in-Charge,

Robert Kunkel, who directed that the investigation of the

anonymous tip be headed by Special Agent Robert

O’Brien. Special Agent O’Brien was the Coordinator for

the Alexandria Division for the nationwide search for Miss

Hearst and other allegedly connected fugitives. The Hearst

investigation was code named HEARNAP by the FBI.

Upon being contacted and advised of the tip, Special

Agent O’Brien took charge of the investigation. He and

three other FBI agents proceeded to the Alexandria Police

Department headquarters. It should be noted that the

HEARNAP file contained at that time, in part, the follow-

ing information: (1) the fugitives generally resided in low

income areas; (2) their general mode of transportation

was either rental cars or used vans; and (3) Ms. Hearst had

reportedly cut her hair in September of 1974.

Upon arriving at the Alexandria Police Department, it

was determined through the use of locator crisscross in-

dexes published by the telephone company, that the

referred to apartment was occupied by one Victor Henry

Evol, but no telephone number could be located. A check

of police department records revealed that Mr. Evol was a

black male who had been interviewed on July 23, 1974

by Alexandria police officers in connection with a com-

plaint involving a concealed weapon. The information

attained revealed that no charges had been brought against

Mr. Evol.

Stipulated facts reveal that on March 15, 1975, Evol

was not the tenant of the apartment. Plaintiff had leased

the apartment on November 1, 1974 shortly after Mr.

Evol had vacated the premises. On March 12, 1975, three

days prior to the incident in issue, Ms. Norton, the plain-

tiff, was interviewed at her apartment by a local FBI

agent, Larry Bartlett, in connection with an investigation

of a stolen automobile. Agent Bartlett’s report concern-

ing this interview was neither dictated nor transcribed

until subsequent to the incident involved herein. Accord-

ingly, the FBI’s then recent contact with and identifica-

tion of the occupant of 649 Notabene Drive, Apartment

10, was not contained in the briefing preparatory to the

investigation of the Hearst tip.

At approximately 9:30 p.m., March 15, 1975, the four

FBI agents and two Alexandria detectives drove to a site

close to the apartment in question. They were there joined

by two uniformed police officers. Agent O’Brien furnished

all the agents and officers with photographs and physical

descriptions of the fugitives and advised them that each

fugitive had been designated by the FBI as armed and

dangerous. One of the Alexandria detectives, Mr. Turner,

was then dispatched to survey the building. The apart-

ment building, located in a well lighted low income area,

is a separate brick structure containing ten units. The

front entrance is the only method of ingress or egress save

the windows. Apartment 10 is located on the third floor

of the building and has only a rear view. On the night in

question, there was no resident manager at the apartments

and the name of the occupant of Apartment 10 was not

contained on the vestibule mailbox. Parked outside the

apartment units was a white van with Pennslyvania license

plates.

Upon Detective Turner’s return from his survey, the

agents and officers proceeded to the apartment. Agent

O’Brien at the parking lot briefing advised the officers of

three possibilities: (1) the HEARNAP fugitives Hearst,

Harris and Harris were in the apartment; (2) the tip was

an attempt to set up an ambush; or (3) the tip was an

attempt to harass an innocent party. At approximately

10:07 p.m., Agents O’Brien and McLaughlin and Detec-

tives Turner and Bland proceeded to Apartment 10. The

light was on and music was being played when the agents

arrived. Two minutes later, Agent O’Brien knocked on

the door of the apartment. At this time Ms. Norton was

at home alone. She was fully dressed. The door to Apart-

ment 10 did not contain a peephole.

Ms. Norton responded to the knock by asking ‘“‘Who’s

there” or ‘‘Who is it”? Agent O’Brien indicated that it

was the FBI. Ms. Norton requested identification. While

the details of the ensuing conversation are disputed, the

parties agree that the plaintiff never was shown the agents’

credentials. The plaintiff turned to call FBI offices in an

effort to secure some verification that the men at the

door were, in fact, agents. The agents and detectives then

attempted to forcibly open the door by striking it. Ms.

Norton, fearing that the door would be destroyed, un-

latched the lock and the door sprang inwardly open. The

law enforcement officers entered the apartment with

weapons drawn. A search of the apartment revealed no

traces of the sought after fugitives.

. Agent O’Brien then advised the plaintiff of the call

which prompted the intrusion. It has subsequently been

determined that the “tip” was probably made by a neigh-

bor of the plaintiff with whom Ms. Norton frequently

quarreled. No attempt was made by the defendants to

obtain a search warrant prior to the forced entry.

Il. The Legality of the Defendants’ Conduct

With respect to the alleged constitutional torts, the

threshold issue presented is whether or not the defendants’

10a

actions were violative of the Fourth Amendment’s prohi-

bition against unreasonable searches and seizures. In the

context of the instant controversy, the issue is framed in

terms of the standards applicable to the execution of an

arrest warrant at the residence of a third party not named

in the warrant. The Supreme Court, to date, has not

directly confronted the issue. See United States v. Watson,

423 U.S. 411, 418 n.6 (1976); Gernstein v. Pugh, 420

U.S. 103, 113 n.13 (1975); Coolidge v. New Hampshire,

403 U.S. 443, 480-481 (1971); Jones v. United States,

351 U.S. 493, 499-500 (1958). It is clear, however, that

“if the police intend to conduct a search of a man’s home

for a suspect, they must at least have probable cause to

believe that he is on the premises.” Lankford v. Gelston,

364 F.2d 197, 202-203 (4th Cir. 1966) (emphasis added).

See also United States v. James, 528 F.2d 999, 1017 (5th

Cir. 1976); United States v. Brown, 467 F.2d 419, 423

(D.C. Cir. 1972); United States v. McKinney, 379 F.2d

259, 262-263 (6th Cir. 1967).? Accordingly, the pivotal

inquiry is the existence of probable cause that Ms. Hearst

occupied Apartment 10 at the time the agents forcibly

entered the apartment. To paraphrase an oft quoted de-

finition of probable cause, this Court must determine

whether, at the moment of the entry, the facts and cir-

cumstances within the officers’ knowledge and of which

they had reasonably trustworthy information were suffi-

° The plaintiff contends that the police are required to obtain

a search warrant in order to lawfully execute an arrest warrant in

the dwelling of a third party. Only exigent circumstances, it is sub-

mitted, can relieve the officers of this obligation. Cf. Virgin Islands

v. Gereau, 502 F.2d 914, 928 (3rd Cir. 1974). The Court is satis-

fied that if the officers had probable cause to believe that Ms.

Hearst was in the apartment, their subsequent conduct was justi-

fied. The fugitives in question had demonstrated a capacity for

both violence and elusive flight. See United States v. Cravero, No.

75-2710 at n. 30 and text (5th Cir. Aug. 6, 1976).

lla

cient to warrant a prudent man in believing that Ms.

Hearst was inside the apartment. Berger v. New York,

388 U.S. 41, 55 (1967); Beck v. Ohio, 379 U.S. 89, 91

(1965); Draper v. United States, 358 U.S. 307, 313

(1959); Husty v. United States, 282 U.S. 694, 700-701

(1931); Carroll v. United States, 267 U.S. 132, 162 (1925).

This assessment must be made in view of the cumulative

effect of the facts then existing and the totality of the

circumstances.

The Court has little difficulty in concluding that the

anonymous tip,” standing alone, is not sufficient to justify

the chalienged police action. The informant chose to

remain anonymous. The underlying circumstance detail-

ing the manner in which the information was gathered is

also unknown. See Spinelli v. United States, 393 U.S. 410,

416 (1969). The informant had not previously provided

any, much less accurate, information to the police. Jones

v. United States, 362 U.S. 257, 267-272 (1960); United

States v. Fuller, 441 F.2d 755 (4th Cir. 1971). Nor did

the informant supply information against her penal

interest. United States v. Harris, 403 U.S. 573 (1971).

Aside from the conclusory statement that Ms. Hearst was

occupying Apartment 10, the only factual assertions con-

tained in the tip were that (1) Ms. Hearst had come to

Alexandria from Pennsylvania and (2) she had cut her

hair. Both of these facts were consistent with information

contained in the FBI HEARNAP investigation file. It was

public knowledge, however, that Ms. Hearst was last

known to be taking refuge in Pennsylvania. The state-

ment concerning Ms. Hearst’s appearance applies with

3To the extent that there is any material difference, the Court

is concerned with the tip as conveyed to the defendants rather than

as later transcribed by the Alexandria Police Department. The par-

ties agree that the statement quoted in the main text hereof rep-

resents the information available to these defendants at the time of

their actions.

12a

equal accuracy to literally millions of women. In short,

neither the tip itself nor the informant display the indicia

of reliability necessary to warrant the forcible entry into

the dwelling of a citizen of the United States in the dead

of night. Cf. Ker v. California, 374 U.S. 23 (1963). In-

deed, the Court would be hard pressed to imagine a less

trustworthy basis for the drastic action taken. As noted

by Judge Sobeloff, information from an ‘‘anonymous and

unverifiable source is [not] probable cause for the search

of ahome.” Lankford v. Gelston, supra, 364 F.2d at 202.

The Court must also, however, consider any additional in-

formation obtained during the investigation which may

fortify the otherwise deficient tip and, hence, support a

finding of probable cause. Whitely v. Warden, 401 U.S.

560, 567 (1971); Spinelli v. United States, 393 U.S. 410,

416 (1969); Draper v. United States, 358 U.S. 307, 313

(1969).

The defendants assert that several facts independently

verified the accuracy of the anonymous tip. First, the

defendants point to their police station-house investiga-

tion which erroneously revealed that a black male, who

had previously been questioned but not charged in con-

nection with a weapons violations, was the occupant of

the apartment. The correlation between the inaccurate

fact and the location of Ms. Hearst can only, generously,

be described as tenuous. The Court similarly finds little

probative value in the fact that the apartment is located

in a lower income area of the City of Alexandria, Virginia.

The strongest evidence the defendants have presented on

this issue is the presence of a van with Pennsylvania license

plates in the proximity of the plaintiff’s apartment.* This

* The van, as it turns out, belongs to the plaintiff. The defen-

dants, however, were unaware of this fact.

13a

fact conformed with the then current information con-

tained in the HEARNAP file as to the fugitive’s former

location and general mode of transportation. No attempt

was made to ascertain who was the owner of the vehicle

and whether it had any connection with the Hearst in-

vestigation. Even with the benefit of this information,

however, Agent O’Brien cautioned the other law enforce-

ment officials that the tip could be a prank. The only

additional facts that the defendants submit support a find-

ing of probable cause are that (1) a young female voice,

as opposed to that of a black male, responded to their

knock on the door; and (2) that the plaintiff refused to

open the door without verifying the identity of the in-

truders.

A finding of probable cause in this case would give un-

precedented weight to a conclusory tip from an anony-

mous source whose accuracy is purportedly verified only

by the proximity of a vehicle bearing Pennsylvania license

plates to the apartment in question. Fortunately, the

Constitution requires a firmer basis of justification before

sanctioning a forcible intrusion into one’s home. Lank-

ford v. Gelston, supra. The so-called corroboration

offered by the defendants was, at best, merely consistent

with a belief that Ms. Hearst occupied Apartment 10. The

evidence was not affirmatively probative of that fact. In

short, the Court concludes that, at the moment of entry,

the facts and circumstances within the defendants’ knowl-

edge and of which they had reasonably trustworthy infor-

mation were not sufficient to warrant a prudent man into

bélieving that Ms. Hearst was inside the apartment. Ac-

cordingly, the plaintiff has established that the defendants

have violated her rights under the Fourth Amendment to

be secure from unreasonable searches and seizures.°

5 The Court’s conclusion that the entry was illegal results in

the establishment of a prima facie case of assault, trespass and false

[footnote continued]

l4a

III. Immunity Defenses

(A) Individual defendants

The individual defendants have moved for summary

judgment on the basis of their alleged entitlement to a

qualified immunity from monetary liability. Each of the

individual defendants are law enforcement officers who,

at the time of the incident in question, were acting within

the scope of their official duties. Accordingly, these

defendants will not be subjected to monetary liability

under the constitutional tort claims if they acted under a

reasonable good faith belief in the legality of their ac-

tions.® Pierson v. Ray, 386 U.S. 547, 557 (1967); Hill v.

imprisonment under Virginia law. See Montgomery Ward ©& Co. v.

Wickline, 188 Va. 485, 50 S.E.2d 387 (1948); Burgess v. Common-

wealth, 136 Va. 697, 188 S.E.2d 273 (1923). The defendants, of

course, remain free to assert any available defenses.

The immunity afforded a police officer at common law and

under 42 U.S.C. §1983 was articulated by the Supreme Court in

terms of ‘‘good faith and probable cause.” Pierson v. Ray, supra,

386 U.S. at 555 and 557. See also Scheuer v. Rhodes, 416 U.S.

233, 245 (1974). The Court of Appeals in Bivens v. Six Unknown

Agents, 456 F.2d 1339, 1347 (2d Cir. 1972) clarifies that the term

“probable cause”” when used in the context of immunity is not

identical with the term “probable cause’’ in the constitutional

sense. In the context of immunity, probable cause translates into

a reasonable good faith belief in the legality of the conduct.

Bivens v. Six Unknown Agents, supra, 456 F.2d at 1347. This is

a less stringent standard than that used in determining whether

sufficient “‘probable cause’’ exists to justify the issuance of an

arrest or search warrant. See Bivens v. Six Unknown Agents, supra,

at 1348-49 (concurring opinion). In order to successfully assert

the immunity defense, an officer must show (1) he acted in a good

faith belief that his conduct was lawful; and (2) his belief was

reasonable. The former standard is subjective while the latter is

objective. Bivens v. Six Unknown Agents, supra at 1348.

This analysis appears to be the prevailing standard throughout

the nation. See G. M. Leasing Corp. v. United States, __U.S.__,

45 U.S.L.W. 4098, 4104 (U.S. Jan. 12, 1977); Hill v. Rowland,

[footnote continued]

15a

Rowland, 474 F.2d 1374, 1377 (4th Cir. 1973); Bivens v.

Six Unknown Agents, 456 F.2d 1339, 1347 (2d Cir.

(1972). Cf. G. M. Leasing Corp. vy. United States,

U.S. , 45 U.S.L.W. 4098, 4104 (US.

Jan. 12, 1977). The Court is of the further opinion that

this qualified immunity is applicable to actions brought

under Virginia law. Yeatts v. Minton, 211 Va. 402, 177

S.E.2d 646 (1970); Davidson v. Allam, 143 Va. 367, 130

S.E. 245 (1925). The cases cited by the plaintiff to the

contra involve defendants who were private citizens as

opposed to police officers acting within the scope of their

official duties, and hence, are inapposite. See, e.g., Zayre

of Virginia, Inc. v. Gowdy, 207 Va. 47, 147 S.E.2d 710

(1966); Montgomery Ward & Co. v. Wickline, 188 Va.

485, 50 S.E.2d 387 (1948).

The Court is not satisfied, however, that the defendants’

entitlement to the qualified immunity in the instant case

can summarily be established. The applicability of this

immunity is dependent upon factual findings. Where

these factual matters are undisputed, i.e., in the face of

uncontroverted affidavits, summary judment may be ap-

propriate. Midwest Growers Co-op Corp. v. Kirkemo, 533

F.2d 455 (9th Cir. 1976); Burgwin v. Mattson, 522 F.2d

474 F.2d 1374, 1377 (4th Cir. 1973); Jones v. Perrigan, 459 F.2d

81, 83 (6th Cir. 1972); Rodriquez v. Jones, 473 F.2d 559, 605

(5th Cir. 1973); Tritsis v. Backer, 501 F.2d 1021 (7th Cir. 1974);

Apton v. Wilson, 506 F.2d 83, 92-93 (D.C. Cir. 1974); Mark v.

Groff, 521 F.2d 1376 (9th Cir. 1975). Moreover, there is no dis-

tinciton in this regard between an action brought against state

officials under 42 U.S.C. §1983 or one brought against a federal

agent under a Bivens-type claim. See, e.g., Rodriquez v. Jones,

473 F.2d 559 (5th Cir. 1973); Mark v. Groff, 521 F.2d 1376

(9th Cir. 1975); Bivens v. Six Unknown Agents, supra, 456 F.2d

1339 (2d Cir. 1972); Paton v. LaPrade, 524 F.2d 862 (3d Cir.

1975).

16a

1213 (9th Cir. 1975); Brubaker v. King, 505 F.2d 534

(7th Cir. 1974); (Tritsis v. Backer, 501 F.2d 1021 (7th

Cir. 1974).) In the instant case, however, despite the

stipulation of many facts, there remains an unresolved

factual issue concerning the number of false anonymous

tips that the defendants had received. The plaintiff repre-

sents that the defendants, prior to this incident, had re-

ceived approximately 50 false tips. Discovery relating to

these tips had not been completed by the time the motions

now under consideration were filed. The reasonableness

of the defendants’ belief in the whereabouts of Ms.

Hearst — an objective standard — may be questioned in

light of numerous and allegedly equally nonmeritorious

“tips”. Accordingly, the Court will deny the individual

defendants’ motion for summary judgment at this time.

See Jaroslawicz v. Seedman, 528 F.2d 727, 737 (2d Cir.

1975); Laverne v. Corning, 522 F.2d 1144, 1147 (2d Cir.

1975). Cf. Pierson v. Ray, 386 U.S. 547, 557.(1967).

(B) Immunity of the United States

The liability of the United States arises, if at all, under

the 1974 amendments to the Federal Tort Claims Act

(FCA), 28 U.S.C. § 2671 et seq..’ The United States

submits that it is entitled to assert the defenses of its

agents to defeat the plaintiff’s claim under the Act. In

other words, the United States views its own liability as

being coterminous with that of its officers. For the rea-

sons that follow, the Court concludes otherwise.

The parties have not raised, at least at this juncture, any

questions relating to the difficulties in pursuing a claim stemming

from a constitutional violation within the statutory framework pri-

marily designed to deal with negligence actions. See Boger, Giten-

stein and Verkuil, The Federal Tort Claims Act Intentional Torts

Amendment: An Interpretative Analysis, 54 U.N.C. L. Rev. 497,

517-543 (1976).

17a

The United States advances two arguments in support

of its position. First, the government maintains that

illegal searches and seizures conducted in a reasonable

good faith belief in their legality are not “wrongful” with-

in the meaning of the FTCA. See 28 U.S.C. § 1346(b).

The imposition of liability for conduct which is not

wrongful, it is submitted, would contravene Supreme

Court decisions which prohibit the application of strict

liability theories under the FTCA. See, e.g., Dalhite v.

United States, 346 U.S. 15 (1953); Laird v. Nelms, 406

U.S. 797 (1972).

This argument suffers the defect of a false premise.

The immunity of individual officers does not serve to de-

feat the existence of a tort — it merely provides a defense

to monetary liability.

“Such immunity does not mean that conduct

which would amount to a tort on the part of other

defendants is not still equally tortious in character,

but merely that for the protection of a particular

defendant, or interests which he represents, he is

given absolution from liability.”

W. Prosser, The Law of Torts, ch. 26 at 970 (4th ed.

1971). Indeed, it has been recognized that the “good

faith defense in a suit for damages brought against any

federal official . . . is not assertable in the face of « quest

limited to injunctive, declaratory or mandamus relief.”

National Treasury Employees Union v. Nixon, 429 F.2d

587, 509 (D.C. Cir. 1974). See also Timmerman v. Brown,

528 F.2d 811, 814 (4th Cir. 1975). The courts will grant

injunctive relief to remedy Fourth Amendment violations

under appropriate circumstances. Lankford v. Gelston,

364 F.2d 197 (4th Cir. 1966); Illinois Migrant Council v.

Pilliod, 398 F. Supp. 882 (N.D.Ill. 1975). In short, the

qualified immunity of a law enforcement officer does not

18a

eliminate the wrongfulness of his conduct. Av: otherwise

illegal search does not attain legality merely because the

offending officer is not subject to monetary liability. Ac-

cordingly, the plaintiff herein is not attempting to impose

liability without fault. On the contra, the Court has

already concluded that fault exists. The pertinent issue is

whether the plaintiff’s injuries are compensable under the

FTCA regardless of the potential immunity of the individ-

ual defendants.

The second argument advanced by the United States is

of more substance. As the government’s liability under

the FTCA is in the nature of respondeat superior, the

United States asserts that it is entitled to the defenses ot

its employees. There is no disputing that both the struc-

ture of the FTCA® and the case law arising thereunder

establish that “the Government was to be made liable ac-

cording to state law under the doctrine of respondeat

8 see 28 U.S.C. §2674 which provides in part:

The United States shall be liable, respecting the pro-

isions of this title relating to tort claims, in the same

manner and to the same extent as a private individual

under like circumstances. (emphasis supplied)

28 U.S.C. §1346(b) provides in part:

(b) Subject to the provisions of chapter 171 of this

title, the district courts, together with the United

States District Court for the District of the Canal Zone

and the District Court of the Virgin Islands, shall have

exclusive jurisdiction of civil actions on claims against

the United States, for money damages, accruing on and

after January 1, 1945, for injury or loss of property, or

personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Gov-

ernment while acting within the scope of his office or

employment, under circumstances where the United

States, if a private person, would be liable to the claim-

ant in accordance with the law of the place where the

act or omission occurred.

19a

superior ...’’ Laird v. Nelms, supra, 406 U.S. at 801. See

also Feres v. United States, 340 U.S. 135 (1950). Em-

ployers, moreover, are generally entitled to assert defenses

available to their employees. Restatement (Second)

of Agency §219 (1957).

A colorable argument can be fashioned that an agent’s

immunity from civil liability is not a defense which can

be asserted by a principal.? This Court is not satisfied,

however, that the resolution of the important legal issue

presented in the instant case should be dictated by the

conceptual niceties which constitute the basis for this

contention. A more concrete foundation for the Court’s

conclusion lies in the intent of Congress in enacting the

legislation creating a cause of action against the United

States.

Prior to 1974, the doctrine of sovereign immunity and

the explicit exclusion of intentional torts from the cover-

age of the FTCA precluded a victim of an illegal search

and seizure from obtaining a remedy against the United

9Commentators have made a distinction between privileges

and immunities describing a principal’s ability to assert the de-

fenses of his agent under vicarious liability theory. See Restate-

ment (Second) of Agency §217 (1957); Cf. W. Prosser, The Law

of Torts, ch. 26 p. 970 (4th ed. 1971). A principal is said to be able

to avail himself of his agent’s privileges, but not his immunities. A

law enforcement officer’s defense to monetary liability has been

termed an immunity by some, see, e.g., Pierson v. Ray, supra,

386 U.S. at 555; Bivens v. Six Unknown Agents, supra, 406 U.S.

at 397; W. Prosser, The Law of Torts §132 (4th ed. 1971); 2 F.

Harper and F. James, The Law of Torts §29.8 (1956); but as a

privilege by others; see, e.g., Restatement (Second) of Torts

§§10, 121(b), and a simpie defense as opposed to either an im-

munity or privilege by at least one court. See Bivens v. Six Un-

known Agents, supra, 456 F.2d at 1347. Faithful adherence by the

courts to these distinctions in discussing the shielding of officers

from monetary liability is absent.

20a

States. An aggrieved citizen’s sole source for monetary

compensation lay in an action against the individually

offending officer brought under Bivens v. Six Unknown

Agents, 403 U.S. 388 (1971). In 1974, however, the

FTCA was amended to include the following:

Provided, That, with regard to acts or omissions

of investigative or law enforcement officers of the

United States Government, the provisions of this

chapter and section 1346(b) of this title shall apply

to any claim arising, on or after the date of the en-

actment of this proviso, out of assault, battery, false

imprisonment, false arrest, abuse of process, or

malicious prosecution. For the purpose of this sub-

section, “investigative or law enforcement officer”

means any officer of the United States who is em-

or to make arrests for violations oi Federal law. 28

U.S.C. § 2680(h) (as amended).

As expressed in the Senate Report accompanying the

amendment, “(t]he effect of this provision is to deprive

the Federal Government of the defense of sovereign

immunity in cases . . . [involving] the same kind of con-

duct that is alleged to have occurred in Bivens (and for

which the case imposes liability upon the individual

Government officials involved.)’!® §. Rep. No. 93-588,

93d Cong. 2d Sess., 1974 U.S. Code Cong. & Ad. News

2789, 2790 (1974).

The 1974 amendment to the FTCA!! had its genesis

in a series of ill-conceived and highly publicized narcotic

10 The above-quoted passage and the entire Senate Reports

amply refute the defendants’ contention that the 1974 amendment

does not apply to the so-called constitutional torts.

\1 pub. L. 93-253 §2, 88 Stat. 50 (March 16, 1974). The legis-

lative history of this provision is somewhat less developed than one

[footnote continued]

2la

raids which took place in the spring of 1973. The most

widely publicized incidents involved the unannounced

forcible night-time entry into the homes of two families

by federal narcotic agents. These raids occurred in Collins-

ville, linois. Senator Percy of Illinois was scheduled to

conduct hearings concerning the reorganization of the

various drug law enforcement agencies. These hearings

might have anticipated. The amendment was attached by the Sen-

ate to legislation initiated in the House of Representatives which

pertained to the reorganization of certain drug law enforcement

agencies. The only apparent association between the amendment

to the FTCA and the House bill is the fact that the Collinsville

raid was carried out by narcotics agents. The only source of legis-

lative intent of the FTCA amendment in the House of Representa-

tives is to be found in the debates occurring after the Senate had

passed the amendment. The debate in the House focuses on the

germaneness of the provision to the proposed reorganization of

drug law enforcen:ent agencies and the desirability of a more

comprehensive approach to the problem of remedying illegal

searches and seizures. See 120 Cong. Rec. 5285-5290 (1974).

The only substantive analysis of the legislation was provided by

Representative Wiggins who stated:

“(t]he amendment creates a civil cause of action by

amendment to the Federal Tort Claims Act for inten-

ional torts committed by law enforcement officers.

The specific problem envisioned by the proponents of

the amendment were Fourth Amendment violations

where a police officer may improperly enter the prem-

ises of a suspect.

The purpose of the amendment was to give a civil

remedy to the aggrieved person for injury and damages

sustained by reason of the entry.” 120 Cong. Rec.

5286-5287 (1974) (Remark by Rep. Wiggins).

These comments support the Court’s view discussed infra, to the

effect that the legislation was remedially oriented.

A more detailed account of the political considerations sur-

rounding the passage of the amendment can be found in Boger,

Gitenstein and Verkuil, The Federal Tort Claims Act Intentional

Torts Amendment: An Interpretative Analysis, 54 U.N.C. L. Rev.

497, 500-517 (1976).

22a

were expanded to include testimony concerning the

Collinsville incidents. In the report stemming from these

hearings, Senator Percy proposed to limit the abuses done

by federal officers, in part, by amending FTCA so as to

allow actions by aggrieved citizens against the United

States.'* The Senator gave two reasons why an action

must lie against the United States as opposed to one

solely against the agents.

While this [an action against an individual agent]

gives victims of abusive tactics some opportunity for

relief, their remedy is severly limited by the ease

with which agents can usually establish the defense

of having acted in good faith and wtth probable

cause. Moreover, causes of action against officials as

individuals will, on occasion, be virtually worthless

since government employees may be so lacking in

funds as to be judgment proof.

S. Rep. No. 93-469, 93d Cong., Ist Sess. 36 (1973) (In-

dividual views of Senator Percy) (emphasis supplied).

Senator Percy concluded his statement with an expressed

intention to introduce legislation implementing his views.

It is clear from the above quoted passage that Senator

Percy’s view of an effective tort remedy did not include

the invocation by the United States of the immunity

defenses of its agents.

Shortly thereafter Senator Percy introduced the pro-

mised legislation.!? The Senate Report accompanying

the bill states that

d prong of

12 _ No. 93-469, 93d Cong. Ist Sess. The secon

inehae fers attack on law enforcement abuses was the ee

of the “no-knock” authority granted under 21 U.S.C. aps )

This was eventually accomplished in Pub. L. No. 93-481, ai

1455.

13.4 similar pi f legislation drafted by the Justice Depart-

A similar piece of legis

ment saa introduced by Senator Hruska of Nebraska was also

[footnote continued]

Oe ee ee ee ce oe

wb hari or.

23a

this provision should be viewed as a counterpart to

the Bivens case and its progeny, in that it waives

the defense of sovereign immunity so as to make the

Government independently liable in damages for the

same type of conduct that is alleged to have occurred

in Bivens (and for which that case imposes liability

upon the individual Government officials involved).

S. Rep. No. 93-588, 93d Cong. 2d Sess., 1974 U.S. Code

Cong. & Ad. News 2789, 2791 (1974). The Senate Report

had earlier characterized the Supreme Court’s decision in

Bwens as creating “‘a right of action against Federal agents

for illegal searches and seizures conducted in bad faith or

without probable cause.” 1974 U.S. Code Cong. & Ad.

News at 2790 (1974) (emphasis supplied). The Report

continues to note that the amendment “would submit

the Government to liability whenever its agents act under

color of law so as to injure the public through search and

seizures that are conducted witivout warrants or with war-

rants wsued without probable cause.” 1974 U.S. Code

Cong. & Ad. News at 2791 (1974) (emphasis supplied).

Both the United States and the plaintiff point to the

Senate Report in support of their respective positions.

The United States contends that the repeated references

to Bivens reflect an intent to make the government’s li-

ability coterminous with that of its agents. In other words,

being considered at that time. S. Bill 2558, 93d Cong., Ist Sess.,

119 Cong. Rec. 33499 (1973). While there were differences

between Senator Hruska’s proposed bill and the ultimately enacted

legislation, those differences do not bear on the issue before the

Court. See Boger, Gitenstein and Verkuil, The Federal Tort Claims

Act Intentional Torts Amendment: An Interpretative Analysis, 54

U.N.C, L. Rev. 497, 510-517 (1976). For a discussion of other

proposals concerning illegal searches and seizures, see Geller,

Enforcing the Fourth Amendment: The Exclusionary Rule and its

Alternatives, 1975 Wash. U.L.J. 621 (1975).

24a

Congress intended to incorporate Bivens in its entirety,

including the immunity doctrines arising thereunder.

While the Court cannot conclude the government’s

argument to be unreasonable, it is the Court’s view that

the more logical interpretation is that the Senate Report

illustrates the congressional intention of providing a

remedy to victims of illegal searches and seizures regard-

less of the motivation of the offending governmental

agent. The Senate repeatedly utilized disjunctive language

in describing the circumstances under which liability

would attach. By using phrases such as “bad faith or

without probable cause’’, and ‘‘without warrants or with

warrants issued without probable cause”’ Congress seem-

ingly intended to provide for monetary recovery in in-

stances where the offending federal agent would enjoy

immunity.'* The defendant attributes this language to

a mistakingly broad reading of Bivens by the Senate.

While this may or may not be accurate, the relevant in-

quiry is into what the Senate thought Bwens stood for.

The Senate Report outlined the reasons behind the

considered need to amend the FTCA as follows:

For years scholars and commentators have con-

tended that the Federal Government should be

liable for the tortious acts of its law enforcement

officers when they act in bad faith or without legal

justification. However, the Federal Tort Claims Act

(28 U.S.C. 2671-2680 the embodiment of sovereign

141+ is difficult to conjure a situation not involving actual

malice where an agent acting under a warrant later found to have

been improvidently issued could be found liable for monetary

damages in an action under 42 U.S.C. §1983 or under Bivens. It

must be pointed out, however, that it is not clear whether Congress

was using the term “‘probable cause’’ in the constitutional sense,

or in the context of immunity. See note 6, supra.

25a

immunity in the United States Code, protects the

Federal Government from liability where its agents

commit intentional torts such as assault and battery.

The injustice of this provision should be manifest—

for under the Federal Tort Claims Act a Federal

mail truck driver creates direct federal liability if

he negligently runs down a citizen on the street but

the Federal Government is held harmless if a fed-

eral narcotics agent intentionally assaults that same

citizen in the course of an illegal ‘‘*no-knock”’ raid.

1974 U.S. Code Cong. & Ad. News at 2791 (1974). The

foregoing passage is revealing in two respects. First,

it once again states the need to impose liability against

the government in terms of “bad faith or without legal

justification.’’ Secondly, the Senate compares the victim

of an illegal search to the victim of an automobile acci-

dent—the latter being entitled to compensation regard-

less of the good faith of the government’s driver. These

statements reflect a concern with providing a remedy.

The remedial orientation of the legislation is made ex-

plicit in the closing sentence of the Report which states:

“The Committee urges speedy adoption of this measure

as a minimal first step in providing a remedy against the

Federal Government for innocent victims of Federal law

enforcement abuses.’’ An innocent victim is no less in

need of a remedy where the injurious conduct, though

illegal, is motivated by a reasonable good faith belief in

its legality.

There is more direct support for the Court’s conclusion

that Congress did not intend to permit the United States,

as one commentator put it, “‘to escape liability under the

new statute by retreating behind various defenses that

had been created under Bivens or Section 1983.” Boger,

Gitenstein and Verkuil, The Federal Tort Claims Act

Intentional Torts Amendment: An Interpretative Anal-

26a

ysis, 54 U.N.C.L. Rev. 497, 515 (1976). The specific

issue before the Court had been raised by the authors

of the legislation and discussed in a memorandum ex-

plaining the proposed amendment. The Senate mem-

orandum succinctly states:

“It is not the intention of this amendment to allow

any other defenses [besides those in section 2080

(h)] that may be available to individual defendants

by state or federal law, custom or practice to be

asserted [by] the government. Congress does not

oppose, however, the assertion of defenses of good

faith and reasonable belief in the validity of the

search and arrest on behalf of individual government

defendants, so long as it is understood that the gov-

ernment’s liability is not coterminous with that of

the individual defendants.”

Senate Comm. on Gov’t Operations, Memorandum No-

Knock Legislation, August 28, 1973, at 5.!° This memo-

randum, the views of the amendment’s author and the

remedial orientation of the Senate Report all lead to the

conclusion that the immunity available to an individual

agent in a Bivens-type action is not a defense available to

the United States to a claim brought under the FTCA.

The congressional decision to remove the shield of

official immunity from the government is founded on

solid policy considerations. The doctrine of sovereign

immunity curiously!® impregnated American _juris-

15 The Court, regretfully, has been unable to secure an exact

copy of this memorandum. The portion quoted herein is found in

Boger, Gitenstein and Verkuil, The Federal Tort Claims Act

Intentional Torts Amendment: An Interpretative Analysis, 54

U.N.C. L. Rev. 497, 515 (1976).

Ge tust how an immunity which had its roots in feudalism

and in a political philosophy associated with the divine right of

kings was transplanted to the aew republic in America remains

[footnote continued]

as a Oe ee Se ee See eee ee

27a

prudence at an early age. See, e.g., Cohens v. Virginia,

19 U.S. (6 Wheat) 264, 411-412 (1821). This doctrine

precluded an aggrieved citizen from moving directly

against the government to redress injuries suffered at

the hands of government officials. In order to provide

some relief to the victim of governmental illegalities,

the Supreme Court fashioned a concept which has been

described as “purest fiction.”!? In Ex Parte Young,

209 U.S. 123 (1908), the Court ruled that ‘‘when a state

official acts under state law in a manner violative of the

Federal Constitution, he ‘comes into conflict with the

superior authority of that Constitution, and he is in that

case stripped of his official or representative character

and is subjected in his person to the consequences of his

individual conduct. The State has no power to impart

to him any immunity from responsibility to the supreme

authority of the United States.’” Scheuer v. Rhodes,

416 U.S. 232, 237 (1974) quoting Ex Parte Young,

supra, 209 U.S. at 159-160. The fictional basis of Ex

Parte Young also limits the relief that can be granted.

Monetary recovery must come from the pocket of the

individual officer and not the sovereign. Edelman v.

Jordon, 415 U.S. 651 (1974). See generally C. Wright,

Law of Federal Courts, §48 (3rd ed. 1976).

The possibility of being subjected to personal liabil-

ity for money damages as a result of the performance of

official duties necessitated the creation of a doctrine

which would provide some degree of protection to the

something of a mystery.” F. James and F. Harper, The Law of

Torts, §29.2 p. 1609 (1956). For a thorough discussion of the

topic, see Jaffe, Suits Against Governments and Officers; Sover-

eign Immunity, 77 Harv. L. Rev. 1 (1963); Borchard, Govern-

ment Liability in Tort, 34 Yale L.J. 1, 129, 229 (1924-1925).

17, Wright, Law of Federal Courts § 48, p. 209 (3d ed. 1976).

28a

well-meaning public servant. The resulting doctrine of

official immunity is premised upon

two mutually dependent rationales: (1) the injus-

tice, particularly in the absence of bad faith, of sub-

jecting to liability an officer who is required, by the

legal obligations of his position, to exercise discre-

tion; (2) the danger that the threat of such liability

would deter his willingness to execute his office

with the decisiveness and the judgment required by

the public good.

Scheuer v. Rhodes, supra, 416 U.S. at 940. (footnote

omitted). Accord, Wood v. Strickland, 420 U.S. 308, 319

(1975); Rowley v. McMillan, 502 F.2d 1326, 1332 (4th

Cir. 1974). Cf. Barr v. Matteo, 360 U.S. 564, 571 (1959).

The need to provide a remedy to the victim of govern-

mental illegality thus comes in cenflict with the consider-

ations giving rise to the doctrine of official immunity.

As Mr. Justice Harlan pointedly observed, there are

“‘two considerations of high importance which now

and again come into sharp conflict—on the one

hanc, the protection of the individual citizen against

pecuniary damage caused by oppressive or malicious

action on the part of officials of the Federal Govern-

ment; and on the other, the protection of the public

interest by shielding responsible governmental

officers against the harassment and inevitable haz-

ards of vindictive or ill-founded damage suits

brought on account of action taken in the exercise

of their official responsibilities.”

Barr v. Matteo, supra, 360 U.S. at 564-565. The doc-

trine of official immunity represents the judicial resolu-

tion of those competing interests. Law enforcement

agents do not enjoy an absolute immunity from suit des-

pite the discretionary nature of their duties ‘because of

29a

the belief that the benefit to society derived from the

protection of personal liberties outweighs the detriment

of perhaps deterring vigorous police action.” Bivens v.

Six Unknown Agents, supra, 456 F.2d at 1346.

The injustices occasioned by the doctrine of sovereign

immunity gave rise to Ex Parte Young and the imposition

on government officials of personal liability for monetary

damages. The fear that this personal liability would un-

duly inhibit public servants from executing their official

responsibilities gave rise to the doctrine of official im-

munity.!® In the context of law enforcement, this im-

munity is articulated in terms of a reasonable good faith

belief in ihe legality of the conduct. Thus, “[t]he con-

cept of the immunity of government officers from per-

sonal liability springs from the same root considerations

that generated the doctrine of sovereign immunity.”

Scheuer v. Rhodes, supra, 416 U.S. at 239. Where, as is

the case with the FTCA, the sovereign has waived its

immunity, the policy considerations which justify im-

munizing individual law enforcement officers are no

longer applicable. See 2 F. Harper and F. James, The Law

of Torts §29.14 at pp. 1656-1657 {1956).

This has been recognized by other courts as well. The

United States sought to raise the defense of immunity in

an action brought under the negligence provisions of the

FTCA by a person injured in the course of an FBI agent’s

efforts to foil an attempted act of air piracy. The district

court ruled that the United States was not entitled to

assert the immunity defenses of its agents. Downs v.

United States, 382 F. Supp. 713, 749-751 (M.D.Tenn.

I8 This is not to say that the law in this area originated with

Ex Parte Young, supra. See Scheuer v. Rhodes, supra, 416 U.S.

at 239 n. 4. The development of the public servant’s defenses to

monetary liability, however, has escalated with the increase in

actions brought against government officials.

30a

1974). In reversing the trial court on other grounds, the

Court of Appeals stated ‘‘[t]the prospect of govern-

mental liability for the actions of law enforcement

officers should not cause those officers less vigorously

to enforce the law. The need for compensation to citizens

injured by the torts of government employees outweigh

whatever slight effect vicarious liability might have on

law enforcement efforts.”” Downs v. United States, 522

F.2d 990, 998 (6th Cir. 1975).

To allow the government to benefit from a doctrine

born of sovereign immunity would pervert the clear con-

gressional directive to eliminate sovereign immunity from

actions of this nature. As noted by the author of the

1974 amendment to the FTCA, Senator Percy, the effec-

tiveness of a Bivens-type remedy is ‘“‘severely limited”

by the doctrine of official immunity. S. Rep. No. 93-469,

93d Cong., Ist Sess. 36. The promise of an effective

remedy contained in the 1974 amendment to the FTCA

would be largely illusory if the government could assert

the immunity defense of its agents. Cf. Downs v. United

States, supra, 382 F. Supp. at 750.

Concluding therefore that (1) the forcible nighttime

entry into the plaintiff’s apartment was in violation of

her rights secured to her by the Fourth Amendment to

the Constitution of the United States; and (2) the United

States is not entitled, as a matter of law, to assert the im-

munity defense available to the individual defendants in

an action brought under the Federal Tort Claims Act, the

plaintiff is entitled to judgment against the United States

on the issue of liability.

An appropriate order will follow.

/s/ Robert R. Merhige, Jr.

Date: 1/26/77 United States District Judge

——

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3la

| Published]

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1919

Elizabeth Ann Norton, Appellee,

United States of America, Appellant,

and

John Turner, Robert O’Brien, Defendants.

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. Robert R.

Merhige, Jr., District Judge.

Argued April 6, 1978 Decided July 19, 1978

Before WINTER, BUTZNER and WIDENER, Circuit

Judges.

Paul Blankenstein, Attorney, Appellate Section, Civil Div-

ision, Department of Justice (Barbara Allen Babcock,

Assistant Attorney General; William B. Cummings, United

States Attorney and William Kanter, Appellate Section,

Civil Division, Department of Justice, on brief) for Appel-

lant; John D. Grad (Philip J. Hirschkop, Hirschkop and

Grad, P.C.; Arthur H. Blitz; Robert D. Salzer on brief)

for Appellee.

WINTER, Circuit Judge:

Elizabeth Ann Norton was awarded summary judgment

against the United States and damages in the sum of

32a

$12,500 in her suit under the fourth amendment for

violation by federal law enforcement officers of her rights

secured by that amendment. In reaching this result, the

district court ruled that the United States could not as-

sert as a defense to its liability the good faith and reason-

able belief of the officers in the legality of their conduct

which provided the basis of the suit. Norton v. Turner,

427 F.S. 138 (E.D. Va. 1977). The correctness of that

ruling is the sole issue on appeal. We reverse and remand

for futher proceedings.

At approximately eight o’clock on the evening of

March 15, 1975, the Alexandria, Virginia, Police Depart-

ment received an anonymous telphone call advising that

the nationally-sought federal fugitive Patricia Hearst was

occupying an apartment in the Alexandria area. Federal

arrest warrants for her arrest were outstanding. The FBI

was immediately notified and, at approximately 9:30

p.m. on the same evening, four FBI agents, together with

two local detectives, arrived at the reported address.

After surveying the site for approximately thirty min-

utes, the officers sought entry into the suspect apart-

ment. The officers had been warned that Ms. Hearst

should be considered armed and dangerous. No search

warrant was either sought or obtained.

The apartment was that of plaintiff who was alone in

the apratment. Since it was ten o’clock at night and her |

door had no peephole for veiwing visitors, she refused to

admit the agents. Conversation ensued. Unable to prevail

upon plaintiff to open the door, the agents began a for-

cible entry. Plaintiff, fearing that the door would be

destroyed, unlatched the lock and the law enforcement

officers entered with weapons drawn. A search of the

a Oe nana

Setbests etn niente

33a

apartment revealed no traces of either Patricia Hearst

or her suspected companions. After concluding that the

anonymous tip was either a hoax or an attempt by a

disgruntled neighbor to harass plaintiff, the officers

departed.

Plaintiff subsequently brought this suit for damages

against both the law enforcement officers involved and

the United States. Suit against the local police officers

was brought under 42 U.S.C. § 1983, while suit against

the federal agents was brought directly under the fourth

amendment to the Constitution of the United States.

See Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). Both the local

and federal agents defended the suit, inter alia, on the

ground that they acted in good faith and with a reason-

able belief in the lawfulness of their actions. Damages

were claimed against the United States under the Fed-

eral Tort Claims Act (FTCA), then recently amended to

allow suit against the United States where federal investi-

gative or law enforcement officers commit certain types

of intentional torts in the course of conducting searches

or making arrests. Pub. L. No. 93-253, §2, 88 Stat. 50

(1974) (amending 28 U.S.C. §2680(h)).! The United

I Pub. L. 93-253, §2, amended 28 U.S.C. §2680(h) by adding

a provisio to it. Section 2680 is the portion of the Federal Tort

Claims Act which excepts certain claims from the general waiver of

sovereign immunity, thus preserving sovereign immunity as to them.

Sub-section (h) preserves immunity with respect to claims arising

out of false imprisonment, false arrest, etc., and the provisio

reads: :

That, with regard to acts or omissions of investigative

or law enforcement officers of the United States Gov-

ernment, the provisions of this chapter [Tort Claim

Procedures] and section 1346(b) of this title shall ap-

ply to any claim arising, on or after the date of the

[foutnote continued}

34a

States also defended on the ground, inter alia, of the

good faith and reasonable belief in the lawfulness of their

actions on the part of its agents.

On cross-motions for summary judgment, the district

court first determined that the officers’ entry into and

search of the apartment had violated palintiff’s fourth

amendment rights since the officers had insufficient cause

to believe that Hearst was inside plaintiff’s apartment.

427 F.S. at 143-44. With respect to the good-faith and

reasonable-belief defenses of the individual defendants,

the court concluded that unresolved issues of facts made

summary judgment inappropriate. Jd at 145-46. As to the

United States, however, summary judgment was entered

for the plaintiff. After carefully considering both the

legislative history surrounding the enactment of the 1974

amendment to the Federal Tort Claims Act and the

policy implications of expanded govenmental liability

thereunder, the district court concluded that proof of a

constitutional violation by federal law enforcement of-

ficers is sufficient per se to render the government liable

for any damages sustained as a result of the unconsti-

tutional conduct. Jd. at- 146-52. Stated otherwise, the

United States could not defend its liability on the basis

of its agents’ good faith and reasonable belief even if it

could prove both. Thereafter, upon motion of plaintiff,

the district court dismissed the suit against the individual

defendants and entered judgment against the United

States in the amount of $12,500. This appeal followed.

enactment of this provisio, out of assault, battery, false

imprisonment, false arrest, abuse of process or mali-

cious prosecution. For the purpose of this subsection,

“investigative or law enforcement officer’? means any

officer of the United States who is empowered by law

to execute searches, to seize evidence, or to make

arrests for violations of Federal Law. (Emphasis added.)

35a

II.

In this appeal the government does not contest the

district court’s finding that a violation of plaintiff's

fourth amendment rights occurred. Nor does it dispute

the applicability of 28 U.S.C. §2680(h), as amended in

1974, to the instant action. The amendment to § 2680(h)

is clearly intended to waive the federal government’s

sovereign-immunity defense in suits brought to redress

violations of the fourth amendment committed by fed-

eral law enforcement officers. See S. Rep. No. 93-588,

93rd Cong., 2d Sess., reprinted in [1974] U.S. Code

Cong. & Ad. News 2789.

What is the only issue raised by the government in

this appeal is the extent of its liability under FTCA. The

United States urges that its liability is no greater than

that of its employees. It submits that, under both tradi-

tional principles of respondeat superior and established

FTCA precedent, it is entitled to assert all defenses

available to its agents individually, including the defenses

of good faith and reasonable belief. Plaintiff, on the other

hand, urges that we uphold the district court’s more ex-

pansive view of governmental liability. We adopt the

more limited view of liability urged upon us by the gov-

ernment and hold that the liability of the United States

under §2680(h) is coterminous with the liability of its

agents under Bivens.

III.

‘In 1971, the Supreme Court announced a federal dam-

ages remedy to redress violations of the fourth amend-

ment by federal law enforcement officers. Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics,

supra. While Bivens created a federal cause of action

sounding in tort cognizable in federal courts under 28

36a

U.S.C. § 1331, it did not delineate the scope of the of-

ficer’s tort duty. On remand, the Second Circuit con-

cluded that an officer’s tort duty under Bivens should

not be coextensive with his constitutional duty under the

fourth amendment. Looking to the traditional doctrine

of police-officer liability for common-law torts, the

court concluded that an individual officer should escape

personal liability if he establishes that he acted “in good

faith and [with a] reasonable belief in the validity of the

arrest and search and in the necessity for carrying out the

arrest and search in the way the arrest was made and the

search was conducted.” 456 F.2d 1339, 1348 (2 Cir.

1972). This definition of an individual officer’s tort duty

under Bivens has been widely accepted.”

While Bivens created a federal tort for certain viola-

tions of the fourth amendment, it did not (and indeed

could not) impose liability on the officer’s employer, the

federal government. The federal fisc was protected by the

traditional doctrine of sovereign immunity.? The inabil-

2 See, ¢.g., G.M. Leasing v. United States, 560 F.2d 1011,

1015 (10 Cir. 1977), cert. denied, __U.S.__ (Mar. 20, 1978);

Ervin v. Ciccone, 557 F.2d 1260, 1262 (8 Cir. 1977); Rodriquez v.

Ritchey, 539 F.2d 394, 400-01 (5 Cir. 1976); Mark v. Groff, 521

F.2d 1376, 1379-80 (9 Cir. 1975); Apton v. Wilson, 506 F.2d

83 (D.C. Cir. 1974); Tritsis v. Backer, 501 F.2d 1021, 1022-23

(7 Cir. 1974). While this court has never directly held that a

federal law enforcement officer is entitled to assert the good-

faith and reasonable-belief defenses when confronted with a

Bivens claim, we have so held as to local law enforcement officers

who are sued under 42 U.S.C. §1983. Hill v. Rowland, 474 F.2d

1374 (4 Cir. 1973). In relying heavily on the Second Circuit’s

analysis in Bivens, Hill clearly implies (and we agree) that the scope

of liability should be the same for federal, state and local law en-

forcement officers, regardless of whether the claim is predicated

on § 1983 or on Bivens.

51t was reasoned that the tort created by Bivens was an in-

tentional tort and that suit against the United States was there-

[footnote continued]

2 a ae cee eee

MO «ee ree

37a

ity to secure a remedy against the United States severely

restricted the effectiveness of the Bivens remedy. As Sen-

ator Percy remarked after conducting hearings into the

much-publicized Collinsville drug raids in which innocent

persons suffered not insubstantial abuse at the hands of

federal narcotics agents:

While [Bivens] gives victims of abusive tactics some

opportunity for relief, their remedy is severely limi-

ted by the ease with which agents can usually estab-

lish the defense of having acted in good faith and

with probable casue. Moreover, causes of action

against officials as individuals will, on occasion. be

virtually worthless since government employees may

be so lacking in funds as to be judgment proof.

S. Rep. No. 93-469, 93rd Cong., Ist Sess. 36 (1973) (in-

dividual views of Senator Percy).

Consistent with these remarks, Senator Percy proposed

a rider to H. R. 8245* “to provide a remedy against the

United States for the intentional torts of its investiga-

tive and law enforcement officers.” S. Rep. No. 93-588,

supra, [1974] U.S. Code Cong. & Ad. News at 2789. En-

acted in March, 1974, as Pub. L. NO. 93-253, §2, this

legislation amended FTCA so as to create an exception to

the intentional-tort exception of 28 U.S.C. § 2860(h).

fore barred by 28 U.S.C. §2680(h) which, prior to 1974, flatly

excepted from FTCA “{a] ny claim arising out of assault, battery,

false imprisonment, false arrest, malicious prosecution, abuse of

process, libel, slander, misrepresentation, deceit, or interference

with contract rights.”

4 .

Then pending before the Senate Government Operations

Committee, H.R. 8245 concerned the reorganization of various

drug law enforcement agencies.

38a

IV.

In waiving sovereign immunity with regard to inten-

tional torts committed by federal investigative or law en-

forcement officers, Congress did not enact a discrete

statutory provision; rather, it used as its vehicle the Fed-

eral Tort Claims Act, 28 U.S.C. § §1346(b), 2671 et seq.

Section 2674, which waves the sovereign immunity of

the United States and thus renders it liable for the torts

described in the Act, states that the United States ‘‘shall

be liable . . . in the same manner and to the same extent

as a private individual under like circumstances - <

(Emphasis added). Section 1346(b), the basic jurisdic-

tional grant of FTCA, vests exclusive jurisdiction in

United States district courts over suits involving

claims against the United States, for money dam-

ages, accruing on and after January 1, 1945, for

injury or loss of property, or personal injury or

death caused by the negligent or wrongful act or

omission of any employee of the Government

while acting within the scope of his office or em-

ployment, under circumstances where the United

States, if a private person, would be liable to the

claimant in accordance with the law of the place

where the act or omission occurred. (Emphasis

added.)

As evidenced by the clear language of these provisions

as well as by subsequent case law, Congress did not in-

tend to create substantive federal law in enacting FTCA;

it limited the liability of the United States to vicarious

liability for the acts or omissions of its employees which,

in turn, were tortious under the law of the place where

the acts or omissions occurred. Both the precipitating

tort and the scope of the government’s vicarious liability

were to be governed by ‘“‘the law of the [state] where

Peres —

39a

the act or omission occurred.”’ See Laird v. Nelms, 406

US. 797, 801 (1972); Richards v. United States, 369

U.S. 1, 6-7 (1962).

It is therefore incongruous that Congress utilized

FTCA as the means of waiving sovereign immunity in the

Bivens context. Bivens created a federal tort, and the

scope of governmental liability under the 1974 amend-

ment presents essentially a question of federal law.° In-

stead of looking to a particular state’s doctrine of res-

pondeat superior, as we would in the typical FTCA

case,° we must seek to determine the scope of liability

intended by Congress in enacting the 1974 proviso to

§ 2680(h).’

5 Cf. Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, supra, 403 U.S. at 409 (Harlan, J., concurring). In

finding a federal damages remedy directly under the fourth amend-

ment to be an appropriate exercise of judicial power, Mr. Justice

Harlan cites as one reason the need for fourth amendment viola-

tions to “be compensable according to uniform rules of federal

law.” Clearly a necessary component to such uniformity is a fed-

eral rule as to the scope of the government’s vicarious liability

under FTCA. Therefore, we find it inappropriate, as the govern-

ment would have us do, to rely upon traditional state-law doctrines

of respondeat superior. See n.8 infra.

SSee, e.g., Williams v. United States, 350 U.S. 857 (1955),

vacating, 215 F.2d 800 (9 Cir. 1954); James v. United States,

467 F.2d 832 (4 Cir. 1972); Yates v. United States, 365 F.2d

663 (4 Cir. 1966); Jennings v. United States, 291 F.2d 880 (4

Cir. 1961).

"We view this case solely as one of statutory interpretation.

While we recognize the force of the district court’s policy argu-

ments in favor of expanded liability, 427 F.S. at 150-52, they are

largely irrelevant to our decision. If we were writing on a clean

slate, the policy arguments of both parties would receive our care-

full attention; however, where Congress has spoken, as it has here

by means of the 1974 amendment to §2680(h), we must be guided

not by our own policy judgments but by those of Congress.

40a

The plain language of the amendment offers no clue

as to congressional intent with regard to the scope of the

government’s liability. Indeed, reading only the amend-

ment itself, one might even question its applicability to

the federal tort created by Bivens. The statutory lan-

guage, as well as the placement of the waiver within the

confines of FTCA,® suggests that its applicability is limi-

ted to suits alleging certain state-created intentional torts

committed by federal law enforcement officers. The leg-

islative history, however, makes clear that the 1974

amendment was viewed by Congress as ‘‘a counterpart

to the Bivens case... .”’ S. Rep. No. 93-588, supra,

[1974] U.S. Code Cong. & Ad. News at 2791.

8 The government has argued both in the court below and be-

fore us that the preexisting structure of FTCA and the case law

arising thereunder support its view that the government is entitled

to assert the defenses of its agents to defeat plaintiff’s claim. Speci-

fically, the government has argued (1) that § 1346(b) makes the

government liable only for tortious conduct and that in the Bivens

‘context no tortious conduct occurs unless the constitutional vio-

lation is committed either in bad faith or with an unreasonable

belief; (2) that the imposition of liability without regard to the

individual motives or beliefs is tantamount to the imposition of

absolute liability, which would contravene two Supreme Court

decisions holding that the FTCA will not support “the imposition

of strict liability of any sort upon the Government,” Laird v.

Nelms, supra, 406 U.S. at 803; see also Dalehite v. United States,

346 U.S. 15 (1953); and (3) that the defenses of good faith and

reasonable belief constitute a privilege rather than an immunity

and that under general respondeat superior doctrine a principal

has a defense if his agent had a privilege which he properly exer-

cised in his principal’s behalf. Restatement (2d), Agency, § 217(a)

(iii)(1958). While each of these arguments supports the result we

reach, we do not ground our decision on these rationale. Despite

the amendment’s placement in FTCA, we are convinced that the

waiver of sovereign immunity to Bivens-type liability is sui generis

and therefore the structure of FTCA, prior cases construing other

provisions of FTCA or general principles of responeat superior in

interpreting the 1974 amendment, singly or in combination, does

not answer the question before us.

SEEEDPIABE Low

tr Chine ots at te ES

4la

While the legislative history makes clear that the fed-

eral government may be sued for Bivens torts committed

by its agents, the history is not as clear with regard to the

intended scope of the government’s vicarious liability.9

It was the district. court’s view that on balance the legis-

lative history disclosed an intent to impose liability on

the government for fourth amendment violations irres-

pective of any individual defenses that might be asserted.

We think not.

Senate Report No. 93-588, which accompanied the

amendment to §2680(h), states that the amendment

“should be viewed as a counterpart to the Bivens case and

its progenty [sic], in that it waives the defense of sover-

eign immunity so as to make the Government indepen-

dently liable in damages for the same type of conduct

that ts alleged to have occurred in Bivens (and for which

that case imposes liability upon the individual Govern-

ment officials involved).”” S. Rep. No. 93-588, supra

[1974] U.S. Code Cong. & Ad. News at 2791 (em.

phasis added). We think that this explanation of purpose

strongly suggests an intent to allow vicarious liability

only in those cases where individual liability would lie

under Bivens. The district court concluded, however, that

this expression of purpose was outweighed by other evi-

dence in the legislative history indicating a more expan-

sive view of governmental laibility.

First, the district court concluded that the overall

tenor of the Senate Report reflects a concern with pro-

viding an effective remedy to individuals whose fourth

9 :

For a detailed account of the legislative history surroundi

enactment of the amendment, see 1. Boger, i: Gamo 2

Verkuil, The Federal Tort Claims Act Intentional Torts pene’

ment: An Interpretive Analysis, 54 N.C.L. Rev. 497, 505-17

(1976); see also Norton v. Turner, supra, 427 F.S. at 148 n.11.

42a

amendment rights have been violated. As we read that

report, however, we think that it shows a concern with

providing an effective remedy “for innocent victims of

Federal law enforcement abuses.” S. Rep. 93-588,

supra, [1974] U.S. Code Cong. & Ad. News at 2792

(emphasis added). It must be remembered that Congress

passed this legislation in the wake of the Collinsville

drug raids where government officials had engaged in

what may fairly be described as outrageous behavior.'°

As the report stresses, it is the type of conduct alleged

both in Bivens and by the victims of the Collinsville

raids—intentional and abusive conduct on the part of

law enforcement officers—about which Congress was

concerned. It was, we think, to remedy these more

egregious wrongs that Congress waived sovereign im-

munity.

Second, the district court thought that other docu-

ments in the legislative history—specifically Senator Per-

cy’s remarks quoted earlier and a memorandum pre-

pared by the staff of the Senate Government Operations

Committee—provide direct support for the conclusion

that Congress intended to impose vicarious liability with-

out regard to individual defenses. While we recognize that

both of these documents support this conclusion, we do

not think that they are entitled to the weight accorded

them by the district court.!! What must guide us is not

10 For a vivid description of the Collinsville raids, see J. Boger,

et al. The Federal Tort Claims Act Intentional Torts Amendment,

supra, 54 .N.C.L. Rev. at 500-02 (1976).

1lin the Boger, Gitenstein and Verkuil article, supra n.9, it

is suggested that the staff memorandum is conclusive as to congres-

sional intent:

On one point, however, the Senate committees were

clearly insistent on distinguishing their recommend-

[footnote continued]

;

43a

Senator Percy’s intent nor the intent of the committee

staff, but rather the intent of Congress. We therefore give

most weight to Senate Report No. 93-588, which rep-

resents the explanatory remarks of the committee. The

Senate Report itself contains none of the clear language

found in Senator Percy’s remarks or in the staff mem-

orandum. To the contrary, a fair reading of the Report

supports the government’s position that the remedy

against the government under FTCA is inextricably tied

to the remedy against the individual officer under

Bivens. !*

ation from prior law. The federal govenment was not

to be allowed to escape liability under the new statute

by retreating behind various “defenses” that had been

created under Bivens or section 1983... . Thus, despite

the constant reference in legislative documents to

Bivens and section 1983, the proposed federal liability

was meant to differ in this very crucial aspect form its

historical analogues.

54 N.C.L. Rev. at 515.

The fact is that the memorandum was not made part of the

legislative record; it was not referred to, nor mentioned at any

point during the legislative consideration of the 1974 amendment.

Indeed, we call attention to footnote 15 of the district court’s

opinion, 427 F.S. at 150, where the court acknowledges that it

was unable to secure a copy of this memorandum in the legis-

lative documents available. Instead the court was forced to rely

upon the Boger, Gitenstein and Verkuil article both for proof of

the existence of the memorandum and for its contents. If, as the

article’s authors say, the committee was “clearly insistent” on the

point and if this is what the committee clearly “meant,” the com-

mittee’s failure to note this departure from Bivens clearly in its

report is totally inexplainable.

12-The district court also placed weight on other language in

the report suggesting an intent to impose liability when federal

agents act in “bad faith or without probable cause” or when sear-

ches are conducted “without warrants or with warrants issued

without probable cause.” 427 F.S. at 149. To the extent that

either of these phrases support an expansive view of governmental

liability, we discount them as attributable to imprecise draftsman-

ship.

44a

The decision we reach is also supported by the well-

established principle of statutory interpretation that

“statutes which waive immunity of the United States

from suit are to be construed strictly in favor of the

sovereign.’” McMahon v. United States, 342 U.S. 25, 27

(1951). While we are mindful of Mr. Justice Frank-

furter’s admonition not to view ourselves as a “‘self-con-

stituted guardian of the Treasury [importing] immunity

back into a statute designed to limit it,” Indian Towing

Co. v. United States, 350 U.S. 61, 69 (1955), there can

be little question but that imposition of liability without

regard to the individual officer’s defenses of good faith

and reasonable belief would be a substantial enough

departure from general principles of respondeat super-

ior'3 and would impose a potentially burdensome

enough impact on the federal treasury that it should be

supported by a clear expression of legislative intent in

either the statute itself or in the accompanying legis-

lative history. Cf Laird v. Nelms, supra, 406 U.S. at

802; Feres v. United States, 340 'J.S. 135, 146 (1950).

Because we find no clear statement of a legislative

policy to expand the government’s vicarious liability be-

yond the scope of its agents’ direct liability, this rule

of construction requires that we reverse the decision

of the district court and remand this case in order to

allow the government to produce evidence of its agent’s

good faith and reasonable belief in the legality of their

conduct.'*

13 as the district court itself noted, employers are generally

entitled under traditional principles of respondeat superior to as-

sert all defenses available to their employees. Restatement (2d),

Agency, §219 Comment c (1958); Norton v. Turner, supra, 427

F.S. at 147.

14 For an interesting proposal that would achieve legislatively

the result reached by the court below, see J. Newman, suing the

[footnote continued]

SSS rr

45a

REVERSED AND REMANDED.

BUTZNER, Circuit Judge, dissenting:

I dissent primarily for the reasons states in the opinion

of the district court, Norton v. Turner, 427 F.Supp. 138

(E.D. Va. 1977), which, in my view, correctly analyzes

the legislative history and the scope of the 1974 amend-

ment to the Federal Tort Claims Act, 28 U.S.C. § 2680

(h). Consequently, I write briefly only to emphasize the

incongruity of allowing the government to escape liabil-

ity on the basis of the personal immunity of its officers.

The Supreme Court has treated the good faith defense

of executive officials, including law enforcement officers,

as a qualified immunity. See Wood v. Strickland, 420

U.S. 308, 313-22 (1975); Scheuer v. Rhodes, 416 U.S.

232, 238-249 (1974); Pierson v. Ray, 386 U.S. 547,

555-57 (1967).! Immunity is conferred because of the

Lawbreakers: Proposals to strengthen the Section 1983 Damage

Remedy for Law Enforcers’ Misconduct, 87 Yale L. J. 447 (1978).

Judge Newman propsoes that 42 U.S.C. §1983 be amended to im-

pose vecarious liability on every employing department of govern-

ment—federal, state or local—for the constitutional torts of its em-

ployees. “(T]he imposition of liability upon the wrongdoer’s em-

ployer would make it entirely appropriate to eliminate . . .” those

defenses available to the wrongdoer himself. Jd. at 459.

! Other authorities refer to police officers’ pleas of good faith

and reasonable belief in the legality of their conduct as a simple

defense or as a privilege. See, e.g., Bivens v. Six Unknown Named

Agents, etc., 456 F.2d 1339 (2nd Cir. 1972) (defense); Restate-

ment (Second) of Torts §§10, 121(b) (privilege). See generally,

Norton v. Turner, 427 F.Supp. 138, 147 n.9 (E.D. Va. 1977).

Under these theories officers are considered to have done no

wrong. Pressing for the acceptance of this nomenclature the gov-

ernment contends that it is not vicariously liable.

Of course, I prefer to follow the Supreme Court’s analysis which

recognizes that the defense is a true immunity. That is to say, even

[footnote continued]

46a

status of the official, but it does not diminish the tort.

W. Prosser, The Law of Torts, ch. 26 at 970 (4th ed.

1971). The Chief Justice succinctly explained these con-

cepts in Scheuer v. Rhodes, supra, 416 U.S. at 241-42:

Public officials, whether governors, mayors or

police, legislators or judges, who fail to make de-

cisions when they are needed or who do not act to

implement decisions when they are made do not

fully and faithfully perform the duties of their

offices. Implicit in the idea that officials have some

immunity—absolute or qualified—for their acts, is

a recognition that they may err. The concept of

immunity assumes this and goes on to assume that

it is better to risk some error and possible injury

from such error than not to decide or act at all.

[emphasis added]

The government never previously relied on the im-

munity of its officers as a defense. It asserted its own

sovereign immunity. But the 1974 amendment to the Act

unequivocally waived sovereign immunity for specified

torts committed by law enforcement officers. The Act

does not condition the waiver of sovereign immunity on

the absence of the officers’ personal immunity. No prin-

ciple of common law, no statute or decisional prece-

dent, either federal or state, authorizes the government

to substitute its officers’ personal immunity for the

sovereign immunity which an Act of Congress waives.

Indeed, the common law ordinarily does not permit an

employer to escape liability because his employee is per-

though the officer has erred, the public interest in assuring the dis-

charge of his duties grants him a qualified or absolute immunity as

the case may be. Of the three theories—simple defense, privilege,

and immunity—the most realistic concept is immunity. See Stump

v. Sparkman, 98 S.Ct. 1099 (1978) (absolute immunity) ; Scheuer

v. Rhodes, 416 U.S. 232 (1974) (qualified immunity).

ere

47a

sonally immune. The rule is stated as follows in Restate-

ment (Second) of Agency §217(b) (ii) (1958):

(b) The principal has no defense because of the

fact that:

(ii) the agent had an immunity from civil liability

as to the act.

The acceptance of this principle in Virginia, where the

illegal search occurred, is illustrated by Worrell v. Worrell,

174 Va. 11, 25, 4 S.E.2d 343, 348 (1939).?

There is a fundamental difference between the qual-

ified immunity granted a public official and sovereign

immunity. A public official is afforded protection from

personal liability because the public interest requires that

he be free to discharge his duties in good faith without

fear of being impoverished if he errs. See Scheuer v.

Rhodes, supra, 416 U.S. at 241-42. On the other hand,

sovereign immunity is based on the recognition “that

there can be no legal right as against the authority that

makes the law on which the right depends.”” Kawanana-

koa v. Polyblank, 205 U.S. 349, 353 (1907); Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 411-12 (1821). The

basic flaw in the government’s position is the premise

that these distinctive immunities are interchangeable.

They are not. By amending the Act in 1974, Congress

preserved the qualified immunity of federal law enforce-

ment officers; at the same time, it allocated to the public

at large the risk of a mistake, instead of visiting the cost

solely on the innocent victim of the error.

2In Worrell, the court cited with approval cases from other

states permitting recovery against employers of family members

based on the members’ negligence as employees even though

intra-family immunities protected the employees from liability to

their families.

48a

Because the judgment of the district court conformed

unexceptionably to the 1974 amendment and the con-

gressional intent that prompted this reform, I respect-

fully dissent.

49a

[Filed Aug. 18, 1976]

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1919

Elizabeth Ann Norton, Appellee,

versus

United States of America, Appellant.

and

John Turner, Robert O’Brien, Defendants.

ORDER

Upon consideration of the appellee’s petition for

rehearing and suggestion for rehearing en banc, and no

judge having requested a poll on the suggestion for re-

hearing en banc,

It is ADJUDGED and ORDERED that the petition for

rehearing is denied.

Rehearing is denied on the concurrence of Judge

Widener and Judge Winter. Judge Butzner dissents from

the denial of the rehearing.

FOR THE COURT,

/s/ William K. Slate, I

CLERK

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.