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郗小星教授的诉讼案 - 我们(美国人)应该知道什么、做些什么? ...

热度 3已有 22396 次阅读2017-6-1 01:26 |系统分类:转帖--非原创请选择| 美国人

https://www.linkedin.com/pulse/what-every-us-person-should-know-do-professor-xiaoxing-jeremy-wu?published=t

https://www.linkedin.com/pulse/%E9%83%97%E5%B0%8F%E6%98%9F%E6%95%99%E6%8E%88%E7%9A%84%E8%AF%89%E8%AE%BC%E6%A1%88-%E6%88%91%E4%BB%AC%E7%BE%8E%E5%9B%BD%E4%BA%BA%E5%BA%94%E8%AF%A5%E7%9F%A5%E9%81%93%E4%BB%80%E4%B9%88%E5%81%9A%E4%BA%9B%E4%BB%80%E4%B9%88-jeremy-wu 

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(英文原作)胡善庆博士 jeremy-wu.info(中文翻译)殷余民,王文奎

English | 简体 | 繁體

天普大学教授郗小星最近提出的民事诉讼 [123] 对每个美国人、尤其是华裔来说都具有非常重要和深远的意义。这里的“美国人”是从法律意义上讲的 [4],涵盖任何美国公民或者永久居民,以及根据美国法律成立的实体。

郗教授的诉讼案提醒我们,美国人享有宪法赋予的权利,并受到法律保护。毋庸置疑,国家安全是很有必要的,一个国家只有强大才能保障我们的自由。然而,如果政府根据种族和原籍背景而针对无辜的人选择性执法,以国家安全为幌子滥用权力,那么就破坏了人民的生活,践踏了宪法赋予我们的权利。任何美国人可以因为这些不法行为而起诉政府。

本文试图对郗小星教授这次诉讼的背景和社会环境作一分析,并提出如下四条建议,以帮助支持郗教授,支持我们的社区:

  1. 主动了解郗小星教授的遭遇,并广泛宣传和推动对郗教授的支持。
  2. 向郗小星教授法律维权基金捐款:http://www.xiaoxingxi.org/
  3. 积极与代表自己选取的议员联系,参与立法改革过程,保护我们的权利。
  4. 在适当的时候,向法庭呈递支持郗小星教授的“法庭之友”书状(Amicus Briefs)[40]。

美国宪法第四、第五修正案

美国宪法的前十项修正案,统称为“权利法案”(Bill of Rights),于1791年由美国国会通过,并由各州批准。

具体而言,美国宪法第四修正案 [5] 规定:

“不得侵犯人民的人身、住宅、文件和财产免受不合理搜查、扣押的权利。除非有合理依据,同时以宣誓或代誓宣言保证,并具体说明要搜查的地点、要扣押的人、物,不可签发搜捕状。”

第四修正案的最终目标是保护人民的隐私权、和免遭政府随意入侵的权利。

美国宪法第五修正案 [6] 规定:

“无论何人,除非依据大陪审团的报告或起诉书,不可被判死罪或其他罪行,除非案件发生在陆军、海军或者民兵队伍中,并且当事人正在服役,而且发生在战时、或出现公共危险情况时。任何人不得因同一犯罪行为而两次遭对受生命、人身的惩罚。任何人不得在刑事案件中被迫自证其罪,或者未经正当法律程序而被剥夺生命、自由或财产。不给予公正的补偿,私有财产不得充作公用。”

第五修正案的最终目标是确保人民在法律诉讼过程当中受到平等的法律保护(Equal Protection),和司法公正(Due Process)。

随着时间的推移,新的法律条文和法庭裁决为这些基本的宪法权利提供了进一步的解释和支持。例如,随着我们进入信息时代,最高法院于1967年 [7] 解释到 ,宪法第四修正案中针对实地搜查的要求同样适用于电子监视。

随着快速搜集与合并大量电子数据的技术不断发展,1974年通过了“隐私权法案” [8],旨在“避免由于对联邦记录的滥用而对个人隐私的侵犯”,以及“允许个人获得查看与自己相关的联邦记录的权限”。

美国的大规模监视活动

据报道,美国政府对人民的大规模监视起始于第一次世界大战期间 [9],在1917年“间谍法案” [10] 颁布后。

20世纪70年代的水门事件丑闻揭露了尼克松总统利用联邦资源(包括执法部门),来监视国内的政治团体、社会活动团体。弗兰克·车尔驰参议员领导美国参议院一个调查委员会 [11] 对情报机关和其他联邦机构在1975年滥用权力的情况进行了调查。

随后,1978年通过了“外国情报监视法案”(FISA)[12],旨在“保障司法部门和国会对美国政府监视外国实体和个人的活动进行监督”。

FISA法案允许政府在获得法院许可的前提下对外国组织和个人监视长达一年。只有指定的FISA法院才有权提供许可,并且必须有正当的监视理由、和具体的监视场所。法院必须确保拟报批的监视活动中涉及到美国人的信息的部分,满足某些“最低要求”。最小化(Minimization)[13] 是一个法律术语,指“限制政府通过合法途径收集不相关的个人信息的能力”。

1981年,里根总统签署了12333号总统令 [1415],以扩大美国情报机构的职权,进一步加强了情报收集和监视活动。

1996年通过的“经济间谍法案”(EEA)[1617],把为盗取商业秘密为国外势力谋利,或伤害商业秘密所有人的行为定为联邦犯罪。EEA不同于1917年“间谍法案”,涵盖商业信息,而不是机密、国防信息。

2001年的9·11恐怖袭击震动了美国和全世界,美国政府迅速加强了安全管制,并于2001年10月26日颁布“爱国者法案” [18],开始打破了公民自由与国家安全之间微妙的平衡。“爱国者法案”引起了大量的关于违反宪法权利、特别是第四修正案的争议,而且这个趋势还在继续。值得注意的是,中国人或者华人并没有参与任何恐怖袭击事件。

在9·11事件发生之后,布什政府还搞了一系列秘密的、没有搜捕许可的窃听活动,其中包括对数百万美国人的电话、电子邮件和其他电子通讯的监测。

2014年,PBS播出了一部两集纪录片 [19],描述了对外国目标的监视如何转向美国国内,以及美国国家安全局(NSA)与高科技公司之间的秘密合作。

许多这些秘密计划一直等到2013年被美国政府的合同工爱德华·斯诺登 [20] 披露之后,才被公众所了解。

斯诺登所披露的信息中令人不安的一个内容,是“2008年FISA修正法案”第702节[21],被NSA用来直接从互联网服务提供商那里大量收集电子数据。虽然该法律原本只是针对美国以外的非美国人,但NSA据此来收集“附带性的”(Incidental)美国人的通讯,并使用“后门漏洞” [22] 等有争议的做法 [23],在没有获得搜捕许可的情况下获取这些信息。

在2010年美国外交电报大规模泄漏 [24] 之后,2013年斯诺登泄密之前,奥巴马总统于2011年发布了13587号总统令 [25],以“提高机密网络的安全性”。随后,2012年又开始在政府机构中施行“国家内部威胁管理条例” [26],并预定在2016年底前全面实施。

对美国华裔的影响

每个美国人,特别是华裔,都应该关心和了解这些影响到我们宪法权利和国家安全的事件。

FISA法案于2008年被修订,并于2012年重新授权五年(有效期延至2017年底)。美国政府监视的范围就从只针对基地组织和恐怖组织,扩大到总体的国家安全。

美国司法部(DOJ)和联邦调查局(FBI)开始了公开宣传,把经济间谍活动视为排在恐怖主义之后的,对美国国家安全的第二大威胁,并将中国当作罪魁祸首。联邦调查局 [27] 的一个报道说,2015年有数百起经济间谍案件,比上一年上升53%,中国是导致这个上升的原因。

在短短两年的时间内,至少有四名入籍归化的华裔美国科学家,包括郗小星教授,被起诉、逮捕和指控为中国间谍。不过,无一例外,政府最终都撤销了对他们的指控,而且没有给出任何解释。然而,这些无辜的个人和他们的家庭却由此蒙受了重大的损失。

尽管在过去两年来,美国国会、美国民权委员会、各种媒体、社区组织和专业组织,以及关心这些事件的有关人士多次提出质询和呈请,司法部却拒绝对这些明显的针对华裔美国科学家的错误指控的现象展开独立调查,或提供充分的解释和道歉。

1997年至2015年间,在“经济间谍法案”(EEA)下进行诉讼的有136起案件,涉及187名被告。通过对这些案件的实证研究,百人会最近发布了一份白皮书 [2829],其中发现:

  1. 自2009年以来,EEA指控的华裔百分比增加了两倍
  2. 在大约一半的案件中,美国实体是受益方,大约三分之一的案件涉及中国受益人
  3. 涉嫌间谍罪的亚裔被告人,被判决的刑罚比其他族裔人士严重程度超过一倍
  4. 在间谍案中被起诉的,亚裔有五分之一可能是无辜的;这个比例是比其他族裔的两倍

郗小星教授的起诉书共有21页 [1],其中被告是联邦调查局的首席探员,和几个没有指定姓名的探员。郗教授的起诉书指出,他们有以下五项侵犯他的宪法第四、第五修正案权利的行为:

  1. 恶意检控 (Malicious Prosecution)
  2. 违反平等保护和正当司法程序 (Equal Protection and Due Process Violation)
  3. 非法搜索和扣押 - FISA监视令 (Unlawful Search and Seizure - FISA Orders)
  4. 非法搜查和扣押 - 无证监视 (Unlawful Search and Seizure - Warrantless Surveillance)
  5. 非法搜查和扣押财产 (Unlawful Search and Seizure of Property and Belongings)

可能还会有更多联邦调查局探员被加到被告名单里。据媒体报道 [30],郗小星教授还可能会依据“联邦侵权索赔法” [31] 对政府提出索赔。

在法律界,郗教授的案件被认为是一起“比文斯诉讼”(Bivens action)[32];比文斯诉讼通常是指“联邦官员违反美国宪法导致损害的行为”。最高法院于1972年裁定,“联邦官员违反宪法第四修正案的行为,可以作为针对非法搜查和拘捕造成的伤害而发起联邦诉讼的依据。”

对宪法第四修正案权利的关切是广泛的,特别是随着现代技术进步,社会正在快速变化 [33, 34]。2016年7月,美国国会设立了由两党共同组成的“国会第四修正案核心小组” [35], 由共和党议员泰德·波(R-Texas)和民主党议员佐夫·洛夫格伦(D-California)主持,旨在保护数字时代美国人的隐私和安全。

由背景多样化、跨党派的公民自由权研究专家联合起来成立了“宪法第四修正案咨询委员会”,以辅助国会第四修正案核心小组的工作。该委员会已经在国会大厦组织了一系列的讨论会,以教育国会工作人员,促进公众参与,讨论如何保护公众的隐私权。2016年12月1日,郗教授作为特邀讲员,在他们组织的“常见的嫌疑人:政府监视活动中的偏见”讨论会 [36] 上演讲。

2017年,国会第四修正案核心小组的一个重要任务是对FISA修正法案的重新授权,特别是第702节----该法案将于12月31日到期。虽然基于政治和国家安全的原因,不会让这项法律失效。但是,在重新授权的过程中,一定要增强透明度和问责机制。

目前,越来越多的报道指出,华裔美国人常常被“国家内部威胁者项目” [37] 选择性地追踪。美国国土安全部和联邦调查局等联邦机构已经开始着手改变法律程序,以在“隐私法案”下豁免他们自己 [38]。例如,拒绝正在被调查的个人查看自己的文件等。这些隐蔽做法如果得到实施,将为绕过宪法赋予的个人权利提供方便,使无辜个人被不法指控的可能性增加,并且没有追索权。

我们如何帮助郗教授、帮助我们自己

美国的立国宪法,只包含了核心的基本原则和法律规则。尽管她不是一个完美的国家,但是由于包括亚裔内的美国人民的智慧和贡献,她在不断地改进。

亚裔美国人经历了长期被歧视、排斥、甚至拘禁的历史。我们不能继续容忍政府行为中那些拿亚裔当替罪羊、或者用定向思维把亚裔与特定的不良行为联系起来的做法(或者针对任何一个美国人这样做),任由恶意歧视、隐性族群偏见[39]、或者粗暴的疏忽大行其道。然而,在现实中,选择性执法、种族形象定性还在继续破坏人们的生活,践踏宪法赋予我们的权利。

美国政府和国家司法系统不仅有义务惩罚有罪的人,还有义务保护无辜的人。

郗小星和他的家人,以及陈霞芬和其他的无辜人士,遭到了错误的检控和调查,是在国家安全的幌子下遭受长期不公正对待的最新受害者。

对于许多人来说,郗小星教授这次起诉政府,象征着在恢复公民宪法权利道路上的一个突破性的步骤;这有别于过去的只是针对错误指责作出被动反应的做法。无辜、守法的美国人应该能够自由地在电话中交谈、发送电子邮件、参与科学交流、进行正常的社会活动和职业活动,而不受政府的持续监听,不用担忧会像住在由警察控制的国家里一样遭到迫害。

缘此,我们可以从以下四个方面来帮助郗小星教授、帮助我们自己:

  1. 主动了解郗小星教授的遭遇,并广泛宣传和推动对郗教授的支持。
  2. 向郗小星教授法律维权基金捐款:http://www.xiaoxingxi.org/
  3. 积极与代表自己选取的议员联系,推动加强政府工作透明与文责机制的立法改革,尤其今年FISA修正法案的重新授权,保护我们的权利。
  4. 在适当的时候,向法庭呈递支持郗小星教授的“法庭之友”书状(Amicus Briefs)[40]。

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[2] Apuzzo, Matt (2017). Former Espionage Suspect Sues, Accusing F.B.I. of Falsifying Evidence. New York Times. http://nyti.ms/2qSOtrV.

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[26] The White House (2012). Presidential Memorandum -- National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs. http://bit.ly/2qdM3CU.

[27] Chon, Gina (2015). FBI blames China for 53% spy case surge. Financial Times. http://on.ft.com/2qdFJvo.

[28] Kim, Andrew (2017). Prosecuting Chinese “Spies:” An Empirical Analysis of the Economic Espionage Act. Committee of 100. http://bit.ly/2qXKHNf.

[29] Wu, Jeremy (n.d.). Federal Cases Under or Related to the Economic Espionage Act.    http://bit.ly/FedCases.

[30] Fuchs, Chris (2017). Scientist Formerly Accused of Spying Sues Alleging FBI Agent Falsified Evidence. NBC News. http://nbcnews.to/2qj2Oet.

[31] Wikipedia (n.d.). Federal Tort Claims Act.  http://bit.ly/2qfjPbe.

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[38] Wu, Jeremy (2016). ALERT: Reject the DHS Proposal. http://bit.ly/2qj2SwR.

[39] Wu, Jeremy (2016). Concerns of Implicit Bias against Asian Americans. http://bit.ly/2pyjnGa.

[40] Wikipedia (n.d.). Amicus curiae. http://bit.ly/2qjLxlh


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回复 admin 2017-6-1 03:28
403 U.S. 388 (1971)
BIVENS
v.
SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF NARCOTICS.

No. 301.
Supreme Court of United States.

Argued January 12, 1971
Decided June 21, 1971
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Stephen A. Grant argued the cause and filed a brief for petitioner.

Jerome Feit argued the cause for respondents. On the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, and Robert V. Zener.

Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

389*389 MR. JUSTICE BRENNAN delivered the opinion of the Court.

The Fourth Amendment provides that:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."
In Bell v. Hood, 327 U. S. 678 (1946), we reserved the question whether violation of that command by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.

This case has its origin in an arrest and search carried out on the morning of November 26, 1965. Petitioner's complaint alleged that on that day respondents, agents of the Federal Bureau of Narcotics acting under claim of federal authority, entered his apartment and arrested him for alleged narcotics violations. The agents manacled petitioner in front of his wife and children, and threatened to arrest the entire family. They searched the apartment from stem to stern. Thereafter, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.

On July 7, 1967, petitioner brought suit in Federal District Court. In addition to the allegations above, his complaint asserted that the arrest and search were effected without a warrant, and that unreasonable force was employed in making the arrest; fairly read, it alleges as well that the arrest was made without probable cause.[1] Petitioner claimed to have suffered great humiliation, 390*390 embarrassment, and mental suffering as a result of the agents' unlawful conduct, and sought $15,000 damages from each of them. The District Court, on respondents' motion, dismissed the complaint on the ground, inter alia, that it failed to state a cause of action.[2] 276 F. Supp. 12 (EDNY 1967). The Court of Appeals, one judge concurring specially,[3] affirmed on that basis. 409 F. 2d 718 (CA2 1969). We granted certiorari. 399 U. S. 905 (1970). We reverse.

I

Respondents do not argue that petitioner should be entirely without remedy for an unconstitutional invasion of his rights by federal agents. In respondents' view, however, the rights that petitioner asserts—primarily rights of privacy—are creations of state and not of federal law. Accordingly, they argue, petitioner may obtain money damages to redress invasion of these rights only by an action in tort, under state law, in the state courts. In this scheme the Fourth Amendment would serve merely to limit the extent to which the agents could defend 391*391 the state law tort suit by asserting that their actions were a valid exercise of federal power: if the agents were shown to have violated the Fourth Amendment, such a defense would be lost to them and they would stand before the state law merely as private individuals. Candidly admitting that it is the policy of the Department of Justice to remove all such suits from the state to the federal courts for decision,[4] respondents nevertheless urge that we uphold dismissal of petitioner's complaint in federal court, and remit him to filing an action in the state courts in order that the case may properly be removed to the federal court for decision on the basis of state law.

We think that respondents' thesis rests upon an unduly restrictive view of the Fourth Amendment's protection against unreasonable searches and seizures by federal agents, a view that has consistently been rejected by this Court. Respondents seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship 392*392 between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting—albeit unconstitutionally—in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own. Cf. Amos v. United States, 255 U. S. 313, 317 (1921); United States v. Classic, 313 U. S. 299, 326 (1941). Accordingly, as our cases make clear, the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Bell v. Hood, 327 U. S., at 684 (footnote omitted); see Bemis Bros. Bag Co. v. United States, 289 U. S. 28, 36 (1933) (Cardozo, J.); The Western Maid, 257 U. S. 419, 433 (1922) (Holmes, J.).

First. Our cases have long since rejected the notion that the Fourth Amendment proscribes only such conduct as would, if engaged in by private persons, be condemned by state law. Thus in Gambino v. United States, 275 U. S. 310 (1927), petitioners were convicted of conspiracy to violate the National Prohibition Act on the basis of evidence seized by state police officers incident to petitioners' arrest by those officers solely for the purpose of enforcing federal law. Id., at 314. Notwithstanding the lack of probable cause for the arrest, id., at 313, it would have been permissible under state law if effected 393*393 by private individuals.[5] It appears, moreover, that the officers were under direction from the Governor to aid in the enforcement of federal law. Id., at 315-317. Accordingly, if the Fourth Amendment reached only to conduct impermissible under the law of the State, the Amendment would have had no application to the case. Yet this Court held the Fourth Amendment applicable and reversed petitioners' convictions as having been based upon evidence obtained through an unconstitutional search and seizure. Similarly, in Byars v. United States, 273 U. S. 28 (1927), the petitioner was convicted on the basis of evidence seized under a warrant issued, without probable cause under the Fourth Amendment, by a state court judge for a state law offense. At the invitation of state law enforcement officers, a federal prohibition agent participated in the search. This Court explicitly refused to inquire whether the warrant was "good under the state law . . . since in no event could it constitute the basis for a federal search and seizure." Id., at 29 (emphasis added).[6] And our recent decisions regarding electronic surveillance have made it clear beyond peradventure that the Fourth Amendment is not tied to the 394*394 niceties of local trespass laws. Katz v. United States, 389 U. S. 347 (1967); Berger v. New York, 388 U. S. 41 (1967); Silverman v. United States, 365 U. S. 505, 511 (1961). In light of these cases, respondents' argument that the Fourth Amendment serves only as a limitation on federal defenses to a state law claim, and not as an independent limitation upon the exercise of federal power, must be rejected.

Second. The interests protected by state laws regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment's guarantee against unreasonable searches and seizures, may be inconsistent or even hostile. Thus, we may bar the door against an unwelcome private intruder, or call the police if he persists in seeking entrance. The availability of such alternative means for the protection of privacy may lead the State to restrict imposition of liability for any consequent trespass. A private citizen, asserting no authority other than his own, will not normally be liable in trespass if he demands, and is granted, admission to another's house. See W. Prosser, The Law of Torts § 18, pp. 109-110 (3d ed. 1964); 1 F. Harper & F. James, The Law of Torts § 1.11 (1956). But one who demands admission under a claim of federal authority stands in a far different position. Cf. Amos v. United States, 255 U. S. 313, 317 (1921). The mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist an unlawful entry or arrest by resort to the local police; and a claim of authority to enter is likely to unlock the door as well. See Weeks v. United States, 232 U. S. 383, 386 (1914); Amos v. United States, supra.[7] "In such cases there is no safety for the citizen, 395*395 except in the protection of the judicial tribunals, for rights which have been invaded by the officers of the government, professing to act in its name. There remains to him but the alternative of resistance, which may amount to crime." United States v. Lee, 106 U. S. 196, 219 (1882).[8] Nor is it adequate to answer that state law may take into account the different status of one clothed with the authority of the Federal Government. For just as state law may not authorize federal agents to violate the Fourth Amendment, Byars v. United States, supra; Weeks v. United States, supra; In re Ayers, 123 U. S. 443, 507 (1887), neither may state law undertake to limit the extent to which federal authority can be exercised. In re Neagle, 135 U. S. 1 (1890). The inevitable consequence of this dual limitation on state power is that the federal question becomes not merely a possible defense to the state law action, but an independent claim both necessary and sufficient to make out the plaintiff's cause of action. Cf. Boilermakers v. Hardeman, 401 U. S. 233, 241 (1971).

Third. That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty. See Nixon v. Condon, 286 U. S. 73 (1932); 396*396 Nixon v. Herndon, 273 U. S. 536, 540 (1927); Swafford v. Templeton, 185 U. S. 487 (1902); Wiley v. Sinkler, 179 U. S. 58 (1900); J. Landynski, Search and Seizure and the Supreme Court 28 et seq. (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. Pa. L. Rev. 1, 8-33 (1968); cf. West v. Cabell, 153 U. S. 78 (1894); Lammon v. Feusier, 111 U. S. 17 (1884). Of course, the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But "it is . . . well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Bell v. Hood, 327 U. S., at 684 (footnote omitted). The present case involves no special factors counselling hesitation in the absence of affirmative action by Congress. We are not dealing with a question of "federal fiscal policy," as in United States v. Standard Oil Co., 332 U. S. 301, 311 (1947). In that case we refused to infer from the Government-soldier relationship that the United States could recover damages from one who negligently injured a soldier and thereby caused the Government to pay his medical expenses and lose his services during the course of his hospitalization. Noting that Congress was normally quite solicitous where the federal purse was involved, we pointed out that "the United States [was] the party plaintiff to the suit. And the United States has power at any time to create the liability." Id., at 316; see United States v. Gilman, 347 U. S. 507 (1954). Nor are we asked in this case to impose liability upon a congressional employee for actions contrary to no constitutional 397*397 prohibition, but merely said to be in excess of the authority delegated to him by the Congress. Wheeldin v. Wheeler, 373 U. S. 647 (1963). Finally, we cannot accept respondents' formulation of the question as whether the availability of money damages is necessary to enforce the Fourth Amendment. For we have here no explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress. The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. Cf. J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964); Jacobs v. United States, 290 U. S. 13, 16 (1933). "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 1 Cranch 137, 163 (1803). Having concluded that petitioner's complaint states a cause of action under the Fourth Amendment, supra, at 390-395, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the Amendment.

II

In addition to holding that petitioner's complaint had failed to state facts making out a cause of action, the District Court ruled that in any event respondents were immune from liability by virtue of their official position. 276 F. Supp., at 15. This question was not passed upon by the Court of Appeals, and accordingly we do not consider 398*398 it here. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

So ordered.
回复 admin 2017-6-1 03:36
456 F.2d 1339 (1972)
Webster BIVENS, Plaintiff-Appellant,
v.
SIX UNKNOWN NAMED AGENTS OF the FEDERAL BUREAU OF NARCOTICS, Defendants-Appellees.

No. 422, Docket 32537.
United States Court of Appeals, Second Circuit.

Argued December 3, 1971.
Decided March 8, 1972.
1340*1340 1341*1341 Stephen A. Grant, New York City, for plaintiff-appellant.

Walter H. Fleischer, Dept. of Justice, Washington, D. C. (L. Patrick Gray, III, Asst. Atty. Gen., Thomas J. Press, Dept. of Justice, Washington, D. C., and Robert A. Morse, U. S. Atty., for the E. D. N. Y., Brooklyn, N. Y. on the brief), for defendants-appellees.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

MEDINA, Circuit Judge:

The decision of the Supreme Court (403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ) establishes for the first time since the founding of the Republic the federal common law right of an aggrieved person to sue for damages caused by a violation of the Fourth Amendment guarantee against unreasonable searches and seizures. Obeying the mandate of the remand we must now decide the important and highly controversial question whether the acts of these Federal Bureau of Narcotics Agents are clothed with immunity, and, if not, to formulate the standard which judges and juries are to apply in deciding the issue of the liability of such officers to pay damages to an allegedly wronged plaintiff.

The decisional background against which we must answer these questions is extensive, conflicting and complex. We must take into consideration: (1) the theoretical basis for immunity of federal officials generally; (2) the impact of the Civil Rights Act, Section 1983, 42 U.S.C. Section 1983 (1970), which does not apply to federal but only to state officers, and the desirability of formulating a federal rule that applies on the same terms to both state and federal police officers; and (3) the rule of liability of a police officer at common law.

We have concluded and now decide and hold that it is a principle of federal law that Agents of the Federal Bureau of Narcotics, and other federal police officers such as Agents of the FBI performing similar functions, while in the act of pursuing alleged violators of the narcotics laws or other criminal statutes, have no immunity to protect them from damage suits charging violations of constitutional rights. We further hold, however, that it is a valid defense to such charges to allege and prove that the federal agent or other federal police officer acted in the matter complained of 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.

The following is Mr. Justice Brennan's summary of the case, 403 U.S. at 389-390, 91 S.Ct. at 2001:

This case has its origin in an arrest and search carried out on the morning of November 26, 1965. Petitioner's complaint alleged that on that day respondents, agents of the Federal Bureau of Narcotics acting under claim of federal authority, entered his apartment and arrested him for alleged narcotics violations. The agents manacled petitioner in front of his wife and children, and threatened to arrest the entire family. They 1342*1342 searched the apartment from stem to stern. Thereafter, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.
On July 7, 1967, petitioner brought suit in Federal District Court. In addition to the allegations above, his complaint asserted that the arrest and search were effected without a warrant, and that unreasonable force was employed in making the arrest; fairly read, it alleges as well that the arrest was made without probable cause. Petitioner claimed to have suffered great humiliation, embarrassment, and mental suffering as a result of the agents' unlawful conduct, and sought $15,000 damages from each of them.
The District Court dismissed the complaint, holding that: (1) there is no right of action under the Fourth Amendment; and (2) even if there is such a right of action, defendants, being federal agents, are immune from suit. 276 F.Supp. 12 (E.D.N.Y.1967). We affirmed on the basis of the first ground and, therefore, did not pass on the immunity question. 409 F.2d 718 (2d Cir. 1969). The Supreme Court reversed, holding that a valid claim for relief had been stated, and remanded the case to us for a determination of the immunity question. 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

I

Immunity

It has long been the rule in this country that certain officers of the federal government, acting in their official capacities, are absolutely immune from lawsuits. Thus, Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 20 L.Ed. 646 (1871), held that judges enjoy an absolute immunity. This protection was extended to officers of the executive branch[1] in Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896).

The classic modern case on the subject is Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950), where Judge Learned Hand held that two successive Attorneys General of the United States, two successive Directors of the Enemy Alien Control Unit of the Department of Justice, and the District Director of Immigration at Ellis Island had immunity from civil suits brought against them for acts done in their official capacities. Noting that it was intolerable not to compensate wrongs done by public officials, Judge Hand nevertheless found that this consideration was outweighed by the public interest in having government officials perform their duties fearlessly. Few public officials, Judge Hand reasoned, would perform their functions vigorously if they knew they might have to bear the burden of standing trial and defending their actions. This immunity was absolute, moreover, and was upheld even if malice was alleged.

In Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) the Supreme Court adopted the reasoning of Judge Hand and held that the Acting Director of the Office of Rent Stabilization could not be sued for issuing an allegedly libelous press release. The plurality opinion, written by Mr. Justice Harlan,[2] first focused on the nature of the defendant. Stating that one must look to the duties performed by the officer, not to his title or place in the hierarchy, Mr. Justice Harlan held that an official is immune if he performs "discretionary acts at those levels of government 1343*1343 where the concept of duty encompasses the sound exercise of discretionary authority." 360 U.S. at 575, 79 S.Ct. at 1341. Once an official is found to be exercising this kind of discretion, the act complained of must be "within the outer perimeter of [the official's] line of duty" before the official will be granted immunity. 360 U.S. at 575, 79 S.Ct. at 1341. Other cases dealing with this subject have proceeded on one or both of these grounds.

Thus we have two issues to resolve, both on the face of the allegations of the complaint: (1) taking these allegations to be true, as we must, is there a showing that the Narcotics Agents were acting "within the outer perimeter of [their] line of duty"; and, if so, (2) were they alleged to be performing the type of "discretionary" function that entitles them to immunity from suit. There is no allegation of malice in this complaint.

We hold that what these Narcotics Agents are charged with, despite the allegations of illegality because of lack of a warrant and probable cause, and the use of unnecessary force, is precisely what Narcotics Agents are supposed to do, namely, make arrests in narcotics cases. So we hold they were alleged to be acting "within the outer perimeter of [their] line of duty." But we reject the claim of immunity because we do not agree that the Agents were alleged to be engaged in the performance of the sort of "discretionary" acts that require the protection of immunity. In the latter part of this opinion we discuss and support the defense of good faith and reasonable belief that the arrest and search were lawful and reasonable.

A

Scope of Authority

In Spalding v. Vilas, supra, 161 U.S. 483, 498, 16 S.Ct. 631, 637 (1896) the Supreme Court said that an official is within the scope of his authority if his "action[s] [have] more or less connection with the general matters committed by law to his control or supervision." Judge Hand, in Gregoire v. Biddle, supra, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950), phrased it this way:

What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him.
In Bradley v. Fisher, supra, 80 U.S. 335, 351, 13 Wall. 335, 351 (1871), the Court defined the scope of a judge's immunity by noting that "[a] distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter."

Finally, in Barr v. Matteo, supra, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341 (1959), the Court said an act is within the scope of an official's authority if such act is "within the outer perimeter of [his] line of duty."[3]

It is not surprising that subsequent courts have had trouble grappling with this concept. Depending on whether the court takes a broad view or a narrow one concerning scope of authority, the same act by the same kind of official may be characterized as within the scope of his authority by one court, and without the scope of his authority by another.

In Hughes v. Johnson, 305 F.2d 67 (9th Cir. 1962), a federal game warden, accused of conducting a search without a warrant and unsupported by an arrest, was denied immunity because such acts are beyond the scope of his official duties. Similarly, in Kelley v. Dunne, 344 F.2d 129 (1st Cir. 1965), a Postal Inspector was held liable for entering a 1344*1344 house without a warrant, restraining plaintiff's wife, and taking certain property, because such acts were deemed to be beyond the scope of his authority. Kozlowski v. Ferrara, 117 F.Supp. 650 (S.D.N.Y.1954), held that an FBI agent was liable for false arrest and malicious prosecution because such acts exceeded his authority, and because it was held that the immunity doctrine only applies to higher officials.

Using similar reasoning, other courts have come to opposite results. Norton v. McShane, 332 F.2d 855 (5th Cir. 1964), involved an action against several federal officers, including a U.S. Marshal, for unlawful arrest and detention without probable cause. Holding that all of the defendants were immune, the court said:

[W]e must assume that to the extent the defendants allegedly acted overzealously or maliciously, they were nevertheless acting within the outer perimeter of their line of duty, and the alleged acts had more or less connection with the general matters committed by law to their control and supervision. 332 F.2d at 861-862.
The dissenting judge believed that the acts complained of could not be within the defendants' scope of authority.[4]

Cooper v. O'Connor, 69 App.D.C. 100, 99 F.2d 135, cert. denied, 305 U.S. 643, 59 S.Ct. 146, 83 L.Ed. 414 (1938), involved an action against several federal officials, including a Special Agent of the FBI, for malicious prosecution. All defendants were held to be immune from suit because they were acting within the scope of their authority. Scope of authority was said to mean actions having more or less connection with the general matters committed by law to the control or supervision of the officer.[5] This definition and reasoning have been followed by other courts. See Swanson v. Willis, 114 F.Supp. 434 (D.Alaska 1953), aff'd, 220 F.2d 440 (9th Cir. 1955) (U.S. Marshal accused of false arrest and battery); Hartline v. Clary, 141 F.Supp. 151 (E.D.S.C.1956) (Internal Revenue Agents accused of false arrest and assault); Bershad v. Wood, 290 F.2d 714 (9th Cir. 1961) (Internal Revenue Agents accused of wrongfully levying on plaintiff's bank account); Scherer v. Brennan, 379 F.2d 609 (7th Cir.), cert. denied, 389 U.S. 1021, 88 S.Ct. 592, 19 L.Ed.2d 666 (1967) (Treasury Agents, assigned to protect the President, accused of trespass and unlawful interference with plaintiff's right to have access to and to occupy his place of residence).

Easy solutions of complex legal problems are not only inadequate but they are likely to impinge upon fundamental principles, and this would inevitably fog up the consideration later of other as yet undecided questions of the applicability of the immunity doctrine to a variety of other federal officials. If we were to hold in this case that the mere allegation of lack of probable cause for the search and for the arrest was sufficient, as a matter of pleading, to charge the defendants with acting beyond "the outer perimeter of [their] line of duty," we would completely subvert Judge Hand's statement in Gregoire v. Biddle, supra, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950), that the policy behind the immunity doctrine is to protect an official who "may later find himself hard put to it to satisfy a jury of his good faith." Such a holding would throw all cases of this description into the trial courts, without any consideration of the much more vital question of whether the official duty in the performance of which the defendant was engaged was or was not deemed to be worthy of the protection of immunity. 1345*1345 The critical question of the character of the official duties of the defendants would be eliminated from the cases. We cannot agree that such a holding would be a proper interpretation of the Supreme Court holdings and Gregoire, that we have discussed, or that it would be wise policy as a matter of good jurisprudence. It is better, we think, to come to grips with every phase of the problem, as a matter of legal reasoning, rather than to rely upon an unsupported ipse dixit as many courts seem to have done.

Thus we return to the old case of Spalding v. Vilas, supra, 161 U.S. 483, 498, 16 S.Ct. 631, 637 (1896), where the Supreme Court said:

[W]e recognize a distinction between action taken by the head of a Department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision.
Clearly, in the present case, the allegations in the complaint could not support a finding that the officers acted "manifestly or palpably beyond [their] authority." We believe that what is meant by the phrase "within the outer perimeter of [an officer's] line of duty" is that the officer must have been acting in his role as a government officer. Here, the duties of these defendants include making arrests in cases involving narcotics. They were doing just that. We hold that this is sufficient to satisfy the requirement that they be acting within "the outer perimeter of [their] line of duty."

B

Discretionary Functions

Once it has been established that the officers were acting within the scope of their authority, in order to be immune they must show that they perform "discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority." Barr v. Matteo, supra, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341 (1959).

In trying to apply this test to facts similar to those in the present case, some courts have simply said that the immunity doctrine only applies to high officials, not to officials performing police functions. See e. g., Kozlowski v. Ferrara, supra, 117 F.Supp. 650 (S.D. N.Y.1954). This solution is, however, unsatisfactory. As Mr. Justice Harlan pointed out in Barr:

The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activitity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.
* * * It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted—the relation of the act complained of to "matters committed by law to his control or supervision," * * * which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from civil defamation suits. 360 U.S. at 572-574, 79 S.Ct. at 1340-1341.
The question to which we must address ourselves now is, therefore, do the defendants in this case perform duties that may be termed discretionary?

In deciding this question, however, words such as "discretion" are not particularly helpful. As we said in Ove Gustavsson Contracting Co. v. Floete, 299 F.2d 655, 659 (2d Cir. 1962), cert. 1346*1346 denied, 374 U.S. 827, 83 S.Ct. 1862, 10 L.Ed.2d 1050 (1963):

There is no litmus paper test to distinguish acts of discretion, * * * and to require a finding of "discretion" would merely postpone, for one step in the process of reasoning, the determination of the real question—is the act complained of the result of a judgment or decision which it is necessary that the Government official be free to make without fear or threat of vexatious or fictitious suits and alleged personal liability?
Thus, the real question to be asked is whether or not federal officers performing police duties warrant the protection of the immunity defense. We hold that they do not.

This policy decision has been expressed by courts in terms of "discretion"—making an arrest is not deemed to be a discretionary function. See e. g., Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), cert. granted sub nom. District of Columbia v. Carter, 404 U.S. 1014, 92 S.Ct. 683, 30 L.Ed. 2d 661 (Jan. 10, 1972); Sherbutte v. Marine City, 374 Mich. 48, 130 N.W.2d 920 (1964); Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209, 218-19 (1963). "The tendency to hold a public official accountable appears to increase as the discretionary scope of his duties decrease. Hence, police officials, whose job is to enforce the law, are not given immunity." Note, Immunity of Prosecuting Officials From Suit for Alleged Deprivation of Civil Rights, 40 Temp.L. Q. 244, 250 (1967). Mr. Justice Harlan used similar reasoning in Barr, where he said that "the broader the range of responsibilities and duties, * * * the wider the scope of discretion * * *." 360 U.S. at 573, 79 S.Ct. at 1340. Whereas it is true that a police officer must exercise some discretion in making an arrest, the fiction that this act is not discretionary is maintained because of the belief that the benefit to society derived from the protection of personal liberties outweighs the detriment of perhaps deterring vigorous police action. See Developments in the Law—Remedies Against the United States and its Officials, 70 Harv.L.Rev. 827, 835 (1957). Consequently, "[t]he common law has never granted police officers an absolute and unqualified immunity * * *." Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). See also K. Davis, Administrative Law Treatise § 26.03 at 874-5 (Supp.1970).

The policy underlying this common law rule is equally applicable to federal police officers. We believe the long line of cases culminating in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), indicates a woeful laxity on the part of some police officers, state and federal, in complying with constitutional standards, and this laxity would only be encouraged by a grant of immunity. We do not agree with the reasoning of cases that support a contrary conclusion. It would be a sorry state of affairs if an officer had the "discretion" to enter a dwelling at 6:30 A.M., without a warrant or probable cause, and make an arrest by employing unreasonable force.

There is another reason for not granting immunity here. In suits brought under the Civil Rights Act, Section 1983, 42 U.S.C. Section 1983 (1970), police officers enjoy no immunity. Pierson v. Ray, supra, 386 U.S. 547, 87 S.Ct. 1213 (1967). The Civil Rights Act does not, however, apply to federal officers. Norton v. McShane, supra, 332 F.2d 855 (5th Cir. 1964).

In its decision in this case, the Supreme Court recognized a right of action against federal officers that is roughly analogous to the right of action against state officers that was provided when Congress enacted the Civil Rights Act. It would, we think, be incongruous and confusing, to say the least, if we should rule that under one phase of federal law a police officer had immunity and that 1347*1347 under another phase of federal law he had no immunity. This incongruity has been commented upon by Judge Gibbons in the Third Circuit, when considering "the liability of State prosecutors under the Civil Rights Act and the liability of federal prosecutors under the federal common law created by the Bivens decision." Judge Gibbons said he perceived "no reason for such a distinction." Bethea v. Reid, 445 F.2d 1163, 1166 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (Jan. 24, 1972).

The absurdity we refer to is highlighted by the interesting situation that arose in Carter v. Carlson, supra, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), cert. granted sub nom. District of Columbia v. Carter, 404 U.S. 1014, 92 S.Ct. 683, 30 L.Ed. 661 (Jan. 10, 1972), which involved the immunity vel non of District of Columbia police officers in a Section 1983 suit. Whereas federal officials do not come under Section 1983, District of Columbia officials do. Fortunately, the incongruity of conflicting rulings was avoided when the District of Columbia Circuit ruled that there was no immunity. As Judge Nichols commented in his concurring opinion (447 F.2d at 371, 144 U.S.App.D.C. at 401):

I do not think that a Federal officer not subject to § 1983 by its terms, and sued in tort at common law, should be held to enjoy an immunity denied his state or territorial brother similarly situated.
This same anomaly is noted in Judge Bell's concurrence in Anderson v. Nosser, supra, 438 F.2d 183, 205 (5th Cir. 1971), rehearing en banc granted, 438 F.2d 205.

Accordingly, we hold that the Agents in this case are not immune from damage suits based upon allegations of violations of constitutional rights.

II

It is a Defense to Allege and Prove Good Faith and Reasonable Belief that the Arrest and Search Were Lawful and Reasonable

Having ruled against immunity, we must not be unmindful of the fact that these FBI and Narcotics Agents, whose lives are in constant danger (see concurring opinion in United States v. Steward, 451 F.2d 1203, 1208 (2d Cir. 1971) ) perform functions indispensable to the preservation of our American way of life. They must not be left defenseless against the demands of every person who manages to escape from the toils of the criminal law. We must, however, balance this consideration against the right of citizens to be free from unlawful arrests and searches, and arrests and searches carried out in an unreasonable manner.

At common law the police officer always had available to him the defense of good faith and probable cause, and this has been consistently read as meaning good faith and "reasonable belief" in the validity of the arrest or search. Restatement (Second) of Torts § 121(b) (1965); 1 Harper & James, The Law of Torts § 3.18 at 277 (1956). Similarly, the use of force is not privileged if in excess of that which the actor "reasonably believes to be necessary." Restatement (Second) of Torts § 132 (1965).

It is of special interest in this case that the authority of agents of the Federal Bureau of Narcotics is spelled out by statute. According to 26 U.S.C. Section 7607, agents of the Federal Bureau of Narcotics may:

(2) make arrests without warrant for violations of any law of the United States relating to narcotic drugs * * * or marihuana * * * where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation.
We believe this to be the same defense held applicable to cases arising under Section 1983. Pierson v. Ray, supra, 386 U.S. 547, 87 S.Ct. 1213 (1967).

1348*1348 The numerous dissents, concurrences and reversals, especially in the last decade, indicate that even learned and experienced jurists have had difficulty in defining the rules that govern a determination of probable cause, with or without a warrant. See e. g., Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). As he tries to find his way in this thicket, the police officer must not be held to act at his peril.

Therefore, to prevail the police officer need not allege and prove probable cause in the constitutional sense. The standard governing police conduct is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable. And so we hold that it is a defense to allege and prove good faith and 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. We think, as a matter of constitutional law and as a matter of common sense, a law enforcement officer is entitled to this protection.

III

No Remand for Further Fact Finding

Having been satisfied with the present record when the case came before Judge Bruchhausen in the District Court, also when it was before us on the prior appeal and before the Supreme Court, the Government now seems to think we should remand the case for some vague form of fact finding. We disagree. Any such unorthodox procedure would introduce a new and quite unnecessary form of pretrial and it could not fail to becloud the issues. What we now do is pass upon the sufficiency of the complaint. We find it states a claim for relief and the judgment dismissing the complaint is reversed and the case is remanded to the District Court for further proceedings not inconsistent with this opinion.

We are grateful to Stephen A. Grant, Esq., who, as assigned counsel, has admirably and with great professional skill represented appellant both in the Supreme Court and in this Court.

LUMBARD, Circuit Judge (concurring):

I concur in the result, but wish to set out my understanding of what the court does today.

In future cases of this sort the issue of scope of authority will not be relevant inasmuch as we now hold that federal law enforcement agents are not immune even if acting within their powers. The trial judge will pass on the sufficiency of the complaint just as he would in a section 1983 action against a state police officer. If the complaint states a cause of action and the plaintiff adduces substantiating proof, the defendant will have to disprove the allegation that he acted without probable cause, or show that, in any event, he acted in good faith and with a reasonable belief in the validity of the arrest and search.

Ordinarily when a suit of this type is brought a court will already have determined that there was no probable cause for the arrest and search complained of. Nevertheless the agent has a complete defense if he can convince the trier of the fact that he acted in good faith and that it was reasonable for him to have believed that the arrest and search were lawful. Thus there are two standards to be considered. The first is what constitutes reasonableness for purposes of defining probable cause under the fourth amendment for the protection of citizens against governmental overreaching. The other standard is the less stringent 1349*1349 reasonable man standard of the tort action against government agents. This second and lesser standard is appropriate because, in many cases, federal officers cannot be expected to predict what federal judges frequently have considerable difficulty in deciding and about which they frequently differ among themselves. It would be contrary to the public interest if federal officers were held to a probable cause standard as in many cases they would fail to act for fear of guessing wrong. Consequently the law ought to, and does, protect government agents if they act in good faith and with a reasonable belief in the validity of the arrest and search.

[1] Legislative immunity was provided for in Art. I, § 6 of the Constitution.

[2] Significantly, perhaps, Mr. Justice Harlan said in his concurring opinion in Bivens:

But, while I express no view on the immunity defense offered in the instant case, I deem it proper to venture the thought that at the very least such a remedy would be available for the most flagrant and patently unjustified sorts of police conduct. 403 U.S. at 411, 91 S.Ct. at 2012.

[3] Interestingly, Mr. Justice Stewart dissented because he did not believe that the issuing of a libelous press release was "`action in the line of duty.'" 360 U.S. at 592, 79 S.Ct. at 1347.

[4] There is doubt as to the continuing vitality of the case in the Fifth Circuit. See Anderson v. Nosser, 438 F.2d 183, 205 (5th Cir. 1971) (Bell, J., concurring specially), rehearing en banc granted, 438 F.2d 205.

[5] This is the way the Supreme Court defined the term in Spalding v. Vilas, supra, 161 U.S. 483, 498, 16 S.Ct. 631 (1896).

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