Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

PETITIONER:Webster Bivens
RESPONDENT:Six Unknown Named Agents of Federal Bureau of Narcotics
LOCATION:Bivens Residence

DOCKET NO.: 301
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 403 US 388 (1971)
ARGUED: Jan 12, 1971
DECIDED: Jun 21, 1971
GRANTED: Jun 22, 1970

ADVOCATES:
Jerome Feit – for the respondents
Stephen A. Grant – for the petitioner

Facts of the case

In 1965, six agents of the Federal Bureau of Narcotics forced their way into Webster Bivens’ home without a warrant and searched the premises. The agents handcuffed Bivens in front of his wife and children and arrested him on narcotics charges. Later, the agents interrogated Bivens and subjected him to a visual strip search. Bivens sued the agents for $15,000 in damages each for humiliation and mental suffering. The district court dismissed the complaint for failure to state a cause of action. The U.S. Court of Appeals for the Second Circuit affirmed.

Question

(1) Does violation of an individual’s Fourth Amendment protection against unreasonable search and seizure give rise to a federal claim for damages?

(2) Does governmental privilege extend to federal agents who clearly violate constitutional rights and act outside their authority?

Warren E. Burger:

We’ll hear arguments next in number 301 Bivens against Six Unknown Agents.

Mr. Grant you may proceed.

Stephen A. Grant:

Mr. Chief Justice and may it please the Court.

25 years have elapsed since this Court in an opinion by Mr. Justice Black in Bell against Hood, left for another day the question whether violation of the Fourth Amendment gives rise to a federal claim for damages.

After long last that question is once again presented to the Court in this case.

Briefly the facts; the name of the case, Bivens against Six Unknown Federal Agents in a way tells a story.

Began in the early morning darkness in November five years ago, when six narcotics agents with guns drawn forced their way into Bivens’ home in Bronx and preceded to conduct a thorough and apparently fruitful search.

They put handcuffs on him in front of his wife and children.

They took him away to be further questioned and booked as well as subjected to an extremely thorough humiliating search of his person.

At all times the agents acted without legal authority, without a search or arrest warrant.

After complaint against Bivens was dismissed, (Inaudible) to hire a lawyer, he decided to sue the agents for the outrage he’d suffered.

He knew the US Constitution guaranteed to each citizen the right to be secured against unreasonable search and seizure.

He knew that the federal courts had general jurisdiction over cases arising under the Constitution.

He must naively have thought he had a pretty good case.

With able assistance of the US Attorneys’ Office, the District Court made a short trip to Bivens handwritten compliant.

No statute afforded a remedy against federal officers.

In any case, the defendants had acted in their performance of duty, compliant dismissed.

Leave to appeal in forma pauperis denied, and the District Court judge’s certification that an appeal with frivolous.

Fortunately for Bivens, a distinguished judge in the Second Circuit Court of Appeals, considered the appeal not so frivolous.

Leave was granted and I was assigned counsel.

This time the Department of Justice represented the defendants, arguing with the admirable dexterity that the Fourth Amendment was intended simply to bar the defensive privilege for an unreasonable search and seizure.

Would you keep your voice up a little Mr. Grant?

Stephen A. Grant:

Yes, Your Honor, but that the privilege is nevertheless available here because the defendants had acted within the outer perimeter of their line of duty.

The Circuit Panel was impressed by the lack of precedent affording a damage remedy and concluded that in enforcing the Fourth Amendment, was the matter for the Congress.

It recognized that the privilege question was properly raised.

The ruling that Bivens had no cause of action found it unnecessary to decide the issue.

The judgment dismissing the compliant was affirmed.

The first question, the first issue is whether violation of the constitutional right to be secure against unreasonable search and seizure gives rise to a federal claim for damages.

The answer turns first in the intent of the framers; second, on the adequacy of existing remedies to fulfill that intent and finally on the role of the court’s in enforcing rights secured by the Constitution.

First the intent of the framers; the right of the people to be secured in their person’s house, his papers and affects against unreasonable searches and seizures shall not be violated.

Stephen A. Grant:

These words were of course a promise to the people, and an imperative to the executive, but perhaps most important of all to man acutely aware of the problems, practical problems of controlling governmental power, they were special mandate to the judiciary, it stood between the people and their government.

This is clear from Madison’s famous statement that if the Bill of Rights were incorporated into the Constitution, independent tribunals of justice would consider themselves in a peculiar manner the guardians of those rights, and would resist every encroachment by the legislative or executive.

The framers didn’t say how the courts would act as guardians.

How they were to resist the encroachments sooner or later must come, they didn’t have to.

As the members of this Court well know, the amendment itself was based on one of the great landmarks of English Constitutional Law, Entick against Carrington.

The civil action in trespass against the king’s messengers for search and seizure conducted under the invalid authority of a general warrant.

Lord Camden’s renowned denunciation of unjustifiable government intrusions in 1765 was well known to the colonists in their struggles against the king’s custom officers prior to the revolution.

There was, as this Court noted several times in a very minds of the framers when they drafted the Fourth Amendment, and with the Entick case in mind, they were no doubt confident that the courts would enforce the constitutional guarantee by the traditional remedy of civil damages.

Harry A. Blackmun:

Mr. Grant, do you know whatever happened to the Bell and Boyd on remand?

Stephen A. Grant:

Yes, Your Honor.

On remand to the District Court, the plaintiff’s claim for federal claim was rejected on the merits on the theory that if the agents — it was either claim against the agent personally, in which case they were immune from suit or if it was a claim against the government, they were also immune under sovereign immunity.

Harry A. Blackmun:

And no further appeal was taken?

Stephen A. Grant:

It was affirmed, I believe by the Ninth Circuit and that was where the matter rested.

Harry A. Blackmun:

And it ended there?

Stephen A. Grant:

Yes.

Harry A. Blackmun:

Do you have any comment as to why this issue really comes up only in 1971?

Stephen A. Grant:

I think that is an extraordinary question and if I could, I would like to reserve that for later, if I can.

I think that’s one of extraordinary questions in this case.

Having said this much as to which I believe there is no disagreement, the precise question becomes the presumed intent of framers as to the application of the constitutional guarantee in such a civil damage action, our position is that federal common law is the source of the plaintiff’s right that the constitutional guarantee provides a basis in federal law for all subsequent incidents of the suit, including the claim itself whether there’s been an unreasonable search and seizure, the measure of damages, and the scope of the officer’s defense.

In saying this, I rely first and foremost on the language of the Amendment which says that, “the constitutional freedom shall not be violated, speaking in categorical terms of securing the fundamental right and in no way suggesting a more limited application such as merely foreclosing a defense in a suit.”

And I rely secondly, on the historical background, on the very fact that the amendment’s adoption at a time when everyone knew that common law under Entick against Carrington already protected against unreasonable search and seizure.

The Amendment meant nothing, unless it elevated the common law right to the level of the guarantee that could not negated by the state or even federal law.

And it meant little as a guarantee of it was merely lofty statement of principle, a right without a remedy, depended on legislative action for its enforcement or was otherwise subject to the vicissitudes of state law.

How little indeed when we consider that the Congress has enacted in 180 years and under the uncertainties of varying local rules, remedy under state law has become all but completely impotent.

The Government however argues —

Warren E. Burger:

Mr. Grant when you speak of the vicissitudes of the state laws, as I am not quite sure what that embraces —

Stephen A. Grant:

I speak of vicissitudes not in the sense — vicissitudes in the sense that state law has developed in response to different considerations in the area of trespass and those considerations are more or less developed in all of the 50 States.

Warren E. Burger:

Well, I would — I would have thought that most of the law of trespass developed in states courts, very little of different in federal courts?

Stephen A. Grant:

It certainly did, Your Honor.

But it developed with respect to and I think Mr. Justice Harlan pointed this out in Monroe against Pape.

Stephen A. Grant:

It developed in a context where the only question was a private right of action against another private citizen and the facts, the measure of recovery particularly, the question whether you could only recover for the damages to — physical damage to property.

Warren E. Burger:

Well, isn’t the correct that many states provide by statute for cause of action against official conducts, that is conduct of officials that is not authorized official conduct?

Stephen A. Grant:

If they do, which I cannot answer when you say is any of the fact because I do not know, but if they do, again, I would rely on the argument that it happens to be a coincidence than which state does and which state doesn’t, and what principles govern that cause of action as well.

And it’s precisely that element of chance and what State you’re in and whether state law happens to provide for it, that I don’t think a federal right can prevail.

The Government however, argues that the framers must have been thinking in procedural terms, merely a foreclosing the defense of justification, that the Amendment was intended simply to bar a claim, that an unreasonable search and seizure was justified in the name of the law. The argument is weak at both ends.

First it tests too little.

In failing to explain how under a long line of decisions upholding constitutional claims in equity, the Amendment could provide the basis for one type of relief but another.

Emphasis in decisions clearly suggests, an injunction would be available to bar threat in Fourth Amendment violation.

Surely, this must be because the framer’s intent in a federal interest goes beyond procedural niceties like foreclosing defenses to the very securing of the constitutional right.

Yet, how can this interest be sufficient for an injunction and not for damages, particularly under a system of law where equitable relief is the exception rather than the rule.

On the other hand, the Government’s position says too much.

For the mere fact, a foreclosing the justification defense, implies an intent on the part of the framers to vindicate the constitutional right by an award of civil damages.

Yet, if absent congressional actions state law were intended to govern the plaintiff’s claim, then the states we are in are free, not only to leave the right uncertain as it now is but even to oppose affirmative obstacles or bar a civil remedy all together.

Byron R. White:

You think that what’s involved here is both whether the federal court has jurisdiction and what the applicable law is?

Stephen A. Grant:

I want to make my position very clear that these — the two questions are very definitely raised in this case, but I want to focus on the substantive law in particular and not on the question of which forum the case is decided.

To my mind, if the plaintiff is sued in the state court, the law that should govern this claim is federal law because it’s the federal right that he will be seeking to vindicate.

Byron R. White:

It wouldn’t necessarily mean that state law would govern, if the Federal courts didn’t have jurisdiction.

In other words —

Stephen A. Grant:

That’s right!

Byron R. White:

— it still could be held that there is not jurisdiction in the federal court with that in the state court, the federal law would govern?

Stephen A. Grant:

It certainly could.

The government’s final argument is that the framers cannot have intended to create a federal law — cause of action because if they had the federal courts would at the outset have been given jurisdictional of the cases arising under the Constitution.

The logic of this position compels a conclusion that the Congress can similarly not have intended to create any enforceable federal rights on the statutes until 1875, when the original jurisdiction was finally granted.

Now obviously, this wasn’t true.

The framers and the Congress assumed that the federal rights would be enforced in the state courts.

In the effectiveness of this enforcement of the Fourth Amendment was assured by then accepted omnipresence of the common law.

For when the Amendment was adopted, Entick against Carrington, was assumed to be the common law throughout the land.

There can hardly have been any compelling need for original federal jurisdiction and the state courts could be expected to enforce the principles of Entick with the uniformity derived from common custom and tradition.

Indeed, there was little need to distinguish between state and federal common law rights for well over century afterward, when under the philosophy of Swift against Tyson, the common law was regarded as single and cohesive body of principles.

This is why Slocum against Mayberry on which the Government heavily relies for its view, in fact what’s precisely the other way.

Stephen A. Grant:

If you look at the opinion of the Court, what Chief Justice Marshall did say, was the damages were to be sought in “suit at common law” but that the “common law tribunals of United States” were not available to hear the claim because Congress had not given them jurisdiction.

He went on to say that the suit had to therefore be brought in the state court.

But contrary to the Government’s suggestion, what he did not say, was that, “the claim therefore arose under and was governed by state law.”

For him and indeed for the courts for many years afterwards such a parochial dissection of the common law was unthinkable.

And thus it is that the question of the governing law becomes vital only when the common law becomes what the court said is in fact, when under Erie against Tompkins, the pronouncements of state judges are recognized as binding on the federal courts and when asserting that the claim arises under and is governed by state law may defeat the federal right.

And in this context, I repeat, in this context, looking at the language and the background of the Fourth Amendment, it’s inconceivable that the framers could have intended its enforcement to be subject to compromise under state law.

And the rights recognized in Entick against Carrington forfeited because of congressional inaction.

Turning to the second issue, the adequacy of existing remedies.

From the framer’s intent to its fulfillment, it is arguable at least in principle that as a matter of federal law, the Court should look to state law in civil damage actions for unreasonable searches until the Congress says otherwise.

But surely this turns most of all, on whether the framer’s intent would thereby be fulfilled.

The court below concluded that it would.

The plaintiff should be left to sue under the state law because the existing remedies substantially vindicate Fourth Amendment rights.

With due respect this conclusion cannot be sustained.

It flies in the face of this Court’s decision in Mapp against Ohio and Monroe against Pape, both of which required overriding substantial state interests because I said in the Mapp, existing civil remedies under state law were worthless and futile.

Moreover, given federal rules under the Civil Rights Act against state officers and the variety in local rules, and this is the point in response to your question Mr. Chief Justice, the variety in local rules from state to state, it means that identical conduct and unreasonable search and seizure will give rise to liability, if committed by a state but not a federal officer and if committed in one jurisdiction but not in another.

At least enforcement of Fourth Amendment rights, subject to the accidents of which badge the defendant is wearing and on which side of a particular state boundary he happens to act.

And in terms of the larger question of the detouring police misconduct, the lower court’s conclusion cannot be reconciled with the results of more detailed studies but scholar in the field.

The most extensive worked today which no doubt the members of the Court have seen is that Professor Oaks of the University of Chicago Law School.

His recently published article is cited on page 31 of the under the Government’s brief.

He concludes that the Exclusionary Rule has a as relatively little impact as a deterrent to police misconduct, as most police activity is directed not at securing evidence for prosecution, but apprehending criminals and maintaining order.

More important, he sights evidence in Canada that suggests that a civil remedy is reasonably effective in curbing the police and strongly urges that such a remedy be given a chance to do job here.

Turning finally to the role of the courts; what is the responsibility of the courts when a aggrieved citizen in this theory to vindicate a claim based on the naked violation of the Fourth Amendment.

Of course, the Government executive insists that Court shouldn’t act.

They argue and I quote, “that there must be showing of utmost necessity.

It must be vital, indispensable, essential, and absolutely necessary and having themselves so restrictively set the stage and the question to be so decided.

They proceed to argue that ineffectual state remedies are nonetheless not totally worthless that the matter should be left to a Congress that hasn’t enacted in 180 years.”

To all this I would say only three things.

First, if indeed necessity must be shown for the courts to act.

It is here as plaintiffs anything can be.

If the need to protect Fourth Amendment rights requires the courts to suppress reliable evidence in criminal prosecutions at the expense of the society, surely it provides a basis for a civil tort remedy.

Stephen A. Grant:

It would be available to the innocent and the guilty alike and place the burden on the irresponsible police officer where it more properly belong.

Byron R. White:

What standard of liability would you suggest the court’s action that they take on the job of enforcing Fourth Amendment directly?

Stephen A. Grant:

Mr. Justice White, I think there are two different questions.

One is whether the plaintiff has a cause of action and developing the federal rule and one which I think your questions is directed to which is that defendant’s defense of privilege which should be sufficiently broad to protect a policeman acting reasonably in discharging his duty.

And I think your question —

Byron R. White:

You mean, reasonably believing that he had reasonable — that he had probable cause?

Stephen A. Grant:

Yes.

Yes, Your Honor.

I would certainly accept that.

Byron R. White:

Even though, he was quite wrong?

Stephen A. Grant:

Even though it was quite wrong.

If he reasonably believed that he had probable cause that should be a sufficient defense in my view and I think that’s consistent with this Court’s opinion in Pierson against Ray.

But I think it’s a separate question from whether the plaintiff has the right sue, he has the federal right that should be govern by the federal rules, that’s already governed by federal rule.

Potter Stewart:

He’s subject to good faith with this sufficient defense for submission?

Stephen A. Grant:

I don’t think I said that —

Potter Stewart:

Well, —

Stephen A. Grant:

— Mr. Justice Stewart, I —

Potter Stewart:

— that’s the reason I asked you the question?

Stephen A. Grant:

No, I don’t think — I think on that — I think that this is beyond the scope of what the Court — no, I’m not so sure.

If the Court goes on to decide, which I urge you to do that Barr against Matteo should be explained as applying to definition with respect to its discussion within the outer perimeter of line of duty then it should indicate what the defense of governmental privilege is in trespass and the basis for that defense is established in the traditional cases in trespass and in Pierson against Ray and that would be privilege for the officer’s reasonable conduct in discharging his duty and that is not subject to good faith and I don’t think society has an interest in subjective law enforcement.

If the other people and society for held up to standard of reasonable conduct, I think the police should be as well.

Potter Stewart:

Is it the same test as would make a search constitutional?

Stephen A. Grant:

No, It would not be the same test because the question –-

Potter Stewart:

(Voice Overlap)

Stephen A. Grant:

I don’t think it would stricter test and also, I think when you take the practical question of suing an officer who’s trying to do his duty personal liability in front of a civil jury that in effect the test would not be as rigid as the Court trying to apply the exclusionary rule for instance.

Potter Stewart:

Now whether it would be in logic and in theory, should it be the — you used the word reasonableness and that’s the same word, form of the same word that the United States Constitution uses that makes a search constitutional?

Stephen A. Grant:

I think the question now is the privilege of the officer which is a defense in a suit for a personal liability whereas the question, for instance, of the probable cause at least were it has risen for the most part has been in whether you can use the evidence against a criminal in the prosecution and I’m not they are the same.

Franky I wish I could give you satisfactory answer to that.

I don’t think I can.

But I will move on right to the second question since I have only have a minute.

Stephen A. Grant:

On the basis of the complaint in preliminary papers that the Government invoked the defense of governmental privilege in the District Court as well in the Circuit Court of Appeals, they even urged the Circuit Court to go so far as to sustain the defense in the face of clear and conscious violation of the Constitution and they cited three Circuit Court decisions to that effect which I noted on pages 20 and 21 on my brief.

Now that the issue is finally in front of this Court, they say that the same complaint preliminary papers afford insufficient facts to — for an informed judgment.

Obviously, suggesting that on remand there would be additional facts to excuse the defendants.

I think clearly problem is not with the facts, with the judgment.

It has to be reversed and reversed by this Court because it has arisen.

Because this Court’s pronouncement since following its (Inaudible) Barr v. Mateo where misapplied by the Fifth Circuit in Norton against McShane to shield an unconstitutional arrest and detention.

The First Circuit has already rejected the Norton decision.

Remanding the issue here to the Second Circuit will simply perpetuate a conflict that can only be resolved by this Court.

And so the position of the petitioner are very — we very strongly urge that this issue is in the case and that it should be reversed.

I would like to reserve the remaining portion of my time for rebuttal.

Warren E. Burger:

Very well, Mr. Grant.

Mr. Feit, you may proceed whenever you’re ready.

Jerome Feit:

Mr. Chief Justice and may it please the Court.

At the outset, I would like to make clear what in the Government’s view is and what is not involved in this case.

First of all, we do not contend that the District Court lacked jurisdiction under Section 1331 (a) in the sense of Bell v. Hood for a cause of action as stated on one construction of the Constitution and defeated on another.

The critical question here and the one left undecided in Bell and Hood by this Court, is recognizing that the complaint on its face for pleading purposes states an actionable tort under state law.

Should it also be read as giving rise to a constitutional tort, so that the elements of the cause of action.

That is the type of injuries compensable and the kinds of damages recoverable should be governed by federally created law. Our answer is no, basically, because of lack of necessity.

Indeed the tort remedy as I would suggest a little later in the argument is basically ineffectual as most of the commentators have suggested.

Byron R. White:

But what would you say, if the state court entertained a suit by this very plaintiff based on the Constitution and said certainly we’ll give a remedy and we have no jurisdictional problems in our Court about —

Jerome Feit:

What happens — well, what happens to practical matter Mr. Justice is that if this suit have been brought in state court, it would have been removed by the Federal Government to the federal court under 1442 (a) of the removal statute because the federal defenses under these —

Byron R. White:

Now, this is the point.

The point is, I’m trying to ask if you brought a suit in a state court the same plaintiff suing under the Fourth Amendment and the state court said certainly we’ll entertain an action to enforce the Fourth Amendment against the officer and that the governing law would be federal law then, wouldn’t it?

Jerome Feit:

The governing law with regard to the issues of justification for the officer’s action in arresting the petitioner or the defendant — the plaintiff in that case, law with regards to perhaps defenses of immunity would be governed by federal law, but the nature of the cause of action itself as I had indicated, the type of injuries compensable, the kind of damages recoverable would not be governed by federal law.

Byron R. White:

Why not?

If the State —

Jerome Feit:

Well, unless this Court creates a constitutional tort because historically —

Byron R. White:

Why couldn’t that — a state court — it would be beyond the power of the state court to say to this plaintiff you seek to sue under the Fourth Amendment, we accept the suit for that — in that very sense.

It is a suit under the Fourth Amendment, we’re going enforced Fourth Amendment in this suit, a state court couldn’t say that?

Jerome Feit:

State court could say assuming as I’ve said that it’s not being removed to the federal court as it always will be against a federal officer under 1442 (a), the state Court could under settled precedent say, looking to the officer’s action, we will determine this as it has to under federal law.

Jerome Feit:

But I have great difficulty unless this Court decides that the arising under jurisdiction of 1331 (a) creates a Federal cause of action that the state Court could look to federal law with regard to the injuries and the damages compensable.

Thurgood Marshall:

Can I get one point straight, you keep saying, if it is removed back to the federal Court?

Jerome Feit:

No, I didn’t — I meant to say, if I did say that excuse Mr. Justice.

As I’ve said that the case will always be removed to the federal court as it has been in the past under 1442 (a).

Thurgood Marshall:

Then it will be tried on the exact the same — take this particular case.

It’s filed in the state Court —

Jerome Feit:

Right.

Thurgood Marshall:

It will be removed to the federal court, you precede with the exact the same plead that you have right now?

Jerome Feit:

And what would happen, that’s correct.

It will —

Thurgood Marshall:

But what other than motion is accomplished by sending it back them to the state court?

Jerome Feit:

Well, this was never commenced in the state court, so that the issue is not what would be gained.

I think that to our point of view, what would happen would be that the Court would be creating a constitutional tort and petitioners talked about the history of the Fourth Amendment and I’d like to indicate the Government’s view is entirely to the contrary.

Thurgood Marshall:

But as it’s staged now, wouldn’t the statute of limitations take care of the state court?

Jerome Feit:

In terms of — you mean, in terms of the Government’s favor, Your Honor?

Well, in terms of the statute of limitations, the — this alleged invasion of privacy occurred in November 26, 1965.

The lawsuit was not commenced until June of 1967, a year-and-a-half after the events.

If they haven’t been broad in state court against the state office, there was a one year statute of limitation.

Thurgood Marshall:

So, as of right now, he can’t — if he goes back to the state court, he is out of court?

Jerome Feit:

Well, and even if this Court decides to create a cause of action and we, of course suggest that do not — does not reach Barr and Matteo at all, and if it goes back to the federal Court, for example, and you say there is such cause of action, presumably, it would be dismissed under the statute of limitations.

The Government can allege the defense of the statute of limitations.

William J. Brennan, Jr.:

Is there a cause of action for injunctive relief as Mr. Grant suggested?

Jerome Feit:

There – and I think this fits in with our general proposition.

Historically, there has been recognition of a cause of action and injunctive relief primarily against situations, against the enforcement of state statutes allegedly unconstitutional state statutes.

William J. Brennan, Jr.:

Now is there for violation of the Fourth Amendment?

Jerome Feit:

I would assume that there could be a situation where they would be.

William J. Brennan, Jr.:

Well, then would this Court be creating a cause of action?

Jerome Feit:

It would be arising under the Constitution in terms of the injunctive remedy.

William J. Brennan, Jr.:

That’s not my question Mr. Feit.

If there is already a cause of action an injunctive relief for violation of the Fourth Amendment, why does the Government suggest that we would be creating a cause of action?

Jerome Feit:

I think the government —

William J. Brennan, Jr.:

It’s the remedy of damages for now —

Jerome Feit:

Because, we think that the two are somewhat different.

For example —

William J. Brennan, Jr.:

What two are different?

Jerome Feit:

That is – that the cause — that the injunction, the action for injunctive relief which is essentially an action which rests on necessity.

For example, as to a federal officer, the law is not clear and I think it looks the other way, the state cannot enjoin the federal law officer, at least Professor Warren thinks that, and you’ve suggested that in Wheeler and Wheeldin.

So, there is no remedy with regard in a state court with regard to a federal officer in terms of injunctive relief.

In that sense, it fits our general preposition.

In other words, this Court recognizes that a remedy should exist in the federal courts, if there’s no remedy existing in state courts and the injunction proceeding fits the need of necessity.

It would be monstrous I submit, that there should a right without a remedy.

Clearly here, there is a remedy in damages in State Court.

It seems to me its petitioner’s burden to show there was necessity to create a damage action.

It is our position and the position of those who have — the commentators who have dealt with this matter in complete detail that the difficulties with regard to the damage action do not lie in the vagaries of state law as is alleged here by petitioner.

Essentially, the fact of the matter is that the hesitancy of those who have been arrested to sue the police and if they do sue the undeniable fact that juries are reluctant to hold federal or a state officers personally responsible in damages at the request of one who may have a criminal record or comes from the lowest economic levels of society.

It seems to us as the writers have pointed out that other remedy should be sought perhaps against the police entity in terms of governmental liability, amending the Tort Claims Act perhaps.

Should Administrative Boards independent to the police be established to monitor the police behavior and if such bodies are created what are their duties to be and these are kinds of questions that seems to me that are best suited for legislative determination and study in judgment.

Byron R. White:

Didn’t the Congress had pass in 1983 and keeping it on the books all these years turn over it back to the courts the task of fashioning a good many — a good part of a federal law of constitutional rights against state officers?

Jerome Feit:

Yes and of course, I think that tends to support our position that is Congress in 1983 as this Court read it in Monroe and Pape created by statute a civil remedy against state officers.

Byron R. White:

But left a – left it very open ended in the sense that all of the —

Jerome Feit:

And acting under the color of state law.

Byron R. White:

— all of the internal rules and standards are to be fashioned by the Court?

Jerome Feit:

Well, under the 1983 you look to the federal — you look to whatever federal common law applies and you can look to state law certainly.

Byron R. White:

You don’t think it, you don’t think it’s odd at all to have the cases against state officers rest on federal law and the liability of federal officers rest exclusively on state law.

Jerome Feit:

I think this is a not a real meaningful distinction because all of these cases against federal offices brought in the state courts will be removed to the federal courts.

Byron R. White:

I know but on your position the law applied in the federal court will be state law?

Jerome Feit:

The law with regard to the nature of the damages and regard to the injuries, the type of injuries compensable.

It’s quite clear that the question as to whether or not the officer acted on probable cause whether the — he had immunity from suit.

These questions quite clearly will be governed by federal law.

What I’m suggesting to you — to the Court is that the notion that the vagaries of state law, the difference in state law, are the reasons why the tort remedy has been ineffectual are not really accurate.

Jerome Feit:

The reason is as I’ve said is that wherever the case is tried juries generally do not like to impose liability on police officers.

And no one — none of the commentators even Professor Foote who is cited so extensively by petitioner in his brief suggests governmental responsibility, deduction of governmental responsibility, perhaps liquidated damages other writers talked as I have said about the setting up of watch dog committees.

William J. Brennan, Jr.:

What’s left in the state law under your submission.

It’s now — the case is now removed to the federal court.

Jerome Feit:

The case is removed to the federal court.

William J. Brennan, Jr.:

You say that now most of the important elements both of the cause of action and the defense is federal law of Government.

Jerome Feit:

I say that, as to the — essentially as to the defense as federal law.

William J. Brennan, Jr.:

That’s what I say now then what’s left for state law?

Jerome Feit:

As I understand it what would be left for state law would be the measure of damages.

William J. Brennan, Jr.:

Well, what —

Jerome Feit:

What the type of damages that can be recoverable.

William J. Brennan, Jr.:

What do you mean by type, I mean as between?

Jerome Feit:

Punitive, punitive compensatory damages.

I might point out, for example, that New York State where this action was — where this occurred is a leader in allowing responsibility for damages for mental suffering.

That kind of thing which would — we submit would be governed by State Law.

What I would like to emphasize that the question of justification, that is the kind of conduct that was engaged, that would be governed by federal law whether there was immunity from suit that would be governed by federal law.

William J. Brennan, Jr.:

My difficult is you — government apparently concedes so much — so many the issues would be ruled by federal law but something you tell us is left for state law and I must confess, I don’t follow why the distinction?

Byron R. White:

Certainly, it can’t be to protect the federal courts because you suggest that all the cases are going to end up in the federal court anyway?

Jerome Feit:

No, it’s not to protect the federal courts in that sense.

I think that essentially what I am suggesting —

William J. Brennan, Jr.:

What difference is it going to make in the plaintiff’s cause of action?

You have now conceded that he has one.

All the issues are governed by federal law, those that you specified assuming they all result favorably to the plaintiff.

Now, where is he as between state law and federal law on the issue damages?

Jerome Feit:

Well, it seems to me that first as a jurisprudential kind of thing is to whether or not this Court — as it is not done in over 200 years of litigation in these areas to determine that a cause of action exists under the Constitution without the showing any necessity.

It seems to us, for example, that if this Court says that the cause of action is governed by federal law, maybe creating a constitutional tort.

Could Congress then — could Congress then decide well we do not think that the tort remedy is effective?

Would Congress be barred from saying, we do not think the tort remedy is an effective method, we want to try something else, assuming that the federal law enforcement officer is the type which requires some other kind of treatment?

Would you need a constitutional amendment for that?

It seems to me that you raise quite difficult problems even if it doesn’t raise constitutional questions.

Jerome Feit:

Would Congress be chilled in further examination and decide well, we will leave this matter to the courts for determination?

Byron R. White:

Do you think — you think you could go into a state court or federal court to sue a federal law officer for having broken into the house at night and seized a bunch of drugs and asked for an injunction and turned it over, have him return the property?

Jerome Feit:

I would have great doubt about that.

I’ve — this Court has not decided whether —

Byron R. White:

It’s just an injunction, isn’t it?

Jerome Feit:

No.

Well, I think what I am suggesting is —

Byron R. White:

You couldn’t sue the federal officer to get the property back?

Jerome Feit:

It’s a replevin action, isn’t it?

Byron R. White:

A replevin action, you mean, to sue to get the property back in state court.

Jerome Feit:

Well, I know but a replevin action rests on the violation of the Fourth Amendment?

Byron R. White:

But of course, again, that question when we remove to the federal Court —

Jerome Feit:

Well, would the federal law govern it or not?

Byron R. White:

I would have to say that the state law would govern the cause of action.

Jerome Feit:

Well, why wouldn’t it?

Byron R. White:

I thought I have been able to establish because —

Potter Stewart:

It’s not Erie railroad.

It’s not Erie Railroad because this is not a diversity case?

Byron R. White:

No.

It seems to me that what it might lead to is really what we concerned about is if you start creating federal causes of actions as I say, they maybe constitutional kinds of remedies that are being created.

Thurgood Marshall:

What happens if this case, involving the state court to remove to the federal Court, who controls the damages, the state or the federal government?

Byron R. White:

Oh, it is our submission that the measure of damages would be governed by state law and I might point out that New York State is a leader in compensatory damage recovery for alleged invasions — in mental invasions of the petitioners or claimants.

Thurgood Marshall:

So, why can’t you hear this now on the same basis?

Byron R. White:

Yes, it would be very —

Thurgood Marshall:

Why did you say, this make believe that it was filed in the state court first, you wouldn’t be here, would you?

Byron R. White:

Well —

Thurgood Marshall:

Would you?

Byron R. White:

No, if this case were filed in the state Court, removed to the federal court and we tried out in the federal court.

Thurgood Marshall:

Right.

Potter Stewart:

Now, what I missed somewhere along the line is, why do you say that state law would be applicable?

Jerome Feit:

Excuse me that why state law would not be applicable?

Potter Stewart:

Would be, would be?

William J. Brennan, Jr.:

To the extent you say it is?

Potter Stewart:

Yes.

William J. Brennan, Jr.:

Because I gather it’s a very small?

Jerome Feit:

I thought that my position is that state law would be applicable because the cause of action as a common law basis, did not arise from the Constitution in the Fourth Amendment.

The Constitution essentially is that historical basis, I think clearly shows, was aimed at securing that right and creating of the rule that you could not rely upon writs of assistance and the general warrants for justification.

Potter Stewart:

You’re assuming what kind of a cause of action for trespass?

Jerome Feit:

Assuming a cause of action for trespass, false imprisonment, of that nature against a federal officer.

Potter Stewart:

For possibly replevin as Mr. Justice White suggested?

Jerome Feit:

Possibly replevin —

Potter Stewart:

If wanted the property back?

Jerome Feit:

Yes.

Potter Stewart:

The $2 million worth of whatever contraband, you want that back?

Jerome Feit:

Well, —

Potter Stewart:

And —

Jerome Feit:

As I say it may —

Potter Stewart:

What if you sued in the state court simply for a violation of your Fourth Amendment rights in the state and that particular state said, that’s fine, we have Tort Remedy for that.

We are under the Constitution of United States, around here in the state and we give a Tort Remedy for violation of constitutional rights.

Jerome Feit:

Correct.

Potter Stewart:

And then that’s removed to federal Court —

Jerome Feit:

That’s removed to the federal court —

Potter Stewart:

And then, you have an action then in the federal court removable only because the defendant is a federal officer —

Jerome Feit:

He is a federal officer.

Potter Stewart:

And what’s the difference then between the what have then and what the petitioner alleges you have here?

Jerome Feit:

I think you have then in a sense in which and I’d like to get to the other second point again, the thing you have just then it seems to us is the creation of a constitutional cause of action.

Potter Stewart:

It’s a cause of action —

Jerome Feit:

Because if you do —

Potter Stewart:

— for damages based upon rights that are accorded to you under the Constitution.

Now, you might have a cause of action for damages based upon rights that are accorded upon you by the common law of negligence, if you are hit by an automobile.

Potter Stewart:

It doesn’t mean it’s a constitutional cause of action —

Jerome Feit:

Well, it seems to us that there are defects in creating that kind of remedy, even if it isn’t a constitutional tort in that sense could Congress then change it as against federal officers.

Potter Stewart:

Well, that’s another case, isn’t it that?

Jerome Feit:

And secondly, for example, if you recognize the existence of this federal cause of action, might it not be or have an over deterring effect on federal officers.

Again, its against Wheeler and Wheeldin which was decided by this Court several years ago, where this Court refused to imply a cause of action from a statute dealing with the granting of process and the Court pointed out in an opinion by Mr. Justice Douglas that we’re not in the free wheeling days of Erie against Tompkins.

Essentially our position are on the cause of action issue is that we’re concerned as to what may be the consequences of that creation, of that kind of action on behalf of the suing individual and it seems to us that there are possibilities that Congress may not act.

It’s a kind of an area where what are the burden — what are the natures of the remedies that should be afforded are quite difficult to determine.

And it seems to us that counsel’s judicial restraint and — requires legislative or perhaps congressional action in the area.

Potter Stewart:

What was the remedy asked for here, money damages?

Jerome Feit:

The remedy asked for here was $15,000.00 against each federal officer.

Potter Stewart:

That’s certainly not a very unusual remedy, is it?

It’s nothing that takes a great deal of craftsmanship or creativity to understand the cause of action for money damages?

Jerome Feit:

No, it does not.

That’s fairly clear on.

I’ve tried to indicate the reasons why we feel, however, that the Court should not create the cause of action for reasons of as we have tried — as I’ve tried to say, for fear that it might create a constitutional tort, limit the Congress.

But if the Court should reject our view, if I may use my remaining time on my remaining issue, and should reject our view and determine at the cause of action for damages should be created on the Fourth — under the Fourth Amendment, so that this was properly brought in the federal courts.

We strongly urge that it should not now decide the question of official immunity pressed upon it by petitioner.

What petitioner says so and the record can read both ways.

It’s not clear that the District Court reached that issue.

But even if it did, the Court of Appeals certainly did not.

It clearly refrained from reaching the question of immunity.

The only facts in the record consists of petitioner’s brief complaint, his motion for summary judgment, the Government’s motion to dismiss and its accompanying affidavit.

Without a hearing, the District Court dismissed in a short memorandum on the ground that it have no jurisdiction and it subsequent memorandum denying the motion to appeal at in forma pauperis, found additionally that no cause of action had been stated.

The record I think is, in our judgment, is wholly inadequate to permit an informed judgment as to whether the agents were acting within the scope of their duties.

It may well be on the development of the facts that the agents were indeed acting with probable cause.

This is not the kind of plaintiff complaint if one reads the record at page one and two for example that’s set forth in Monroe v. Pape where 13 Chicago police officers entered early hours in the morning and forced Mr. Monroe and his family to stand naked, then took Mr. Monroe down to headquarters for intensive investigation.

As I say the circumstances surrounding the officers’ actions maybe explainable as completely justified under the Fourth Amendment.

On the other hand, the Government maybe able to assert that if there was a violation of the Fourth Amendment, it was wholly technical.

Thurgood Marshall:

But the government could credit all that by its motion summary judgment, right?

Jerome Feit:

Well, it seems to me that the Government should —

Thurgood Marshall:

Is that right?

Jerome Feit:

The Government moved to dismissed the complaint.

And moved —

Thurgood Marshall:

I am sorry for my language, but that’s (Voice Overlap)

Jerome Feit:

And file an affidavit relying on part on the claim that the action was brought under the civil rights statute.

Thurgood Marshall:

How can you argue about what you would prove when you weren’t interested in proving this —

Jerome Feit:

It seems to us that the fact that the Government may have made a mistake or that the Court did not require, the District Court did not require further governmental affidavits of further showing.

It seems to us the Government — that this Court should — that this Court should not be required to decide a question of such significance as the Barr and Matteo proposition on this kind of barren record.

Thus, if — it seems to us under the procedures for relief based upon the new federal rules of procedure, of the Federal Rules of Civil procedure, the further affidavit should be submitted to permit the record to be flushed out.

And this Court should not reach on this very barren context, this very significant question as to the scope of the immunity doctrine as applied to federal agents.

Warren E. Burger:

Mr. Feit, was that suggestion made to the Court of Appeals, do you know?

Jerome Feit:

I think the suggestion was not made to the Court of Appeals.

The Courts of Appeals specifically however, refrained.

The Government argued Barr and Matteo issue in the Court of Appeals.

The Court of Appeals, however, specifically refrained from deciding that question finding that there was no cause of action available, pleading that it should not create one because of the rule of exclusion and that there was no need for the creation of such remedy.

For these reasons, it is our basic position that the Court should not create a constitutional tort and dismiss the complaint.

And if it disagrees with us on this issue, however, we strongly urge that it not reach the immunity issue, since no record exists upon which that issue can fairly be decided.

It should instead remand the case to the District Court for a further development of the record on that issue and on other possible issues of justification for the official action.

Thank you.

Warren E. Burger:

Thank you, Mr. Feit.

Mr. Grant, you have about 7 minutes left.

Stephen A. Grant:

I’ll make only a few remarks unless there are questions from the bench.

First, when you ask whether — if state law governs this claim.

If state law governs this claim, we go back to the District Court we are out of the Court if Mr. Feit is correct in saying the state statute of limitations bars a suit.

Potter Stewart:

Because of the statute limitations, correct?

Stephen A. Grant:

Yes.

Because I think we brought it two years after the trespass and that’s precisely the kind of question that and there are obviously, others issues beside the damages that would bear on the federal right.

What is required here is not as the Government so strongly suggests creating a new cause of action, in the sense of defining a new and certainly not a constitutional tort.

Here, unlike Wheeldin against Wheeler, we already have in the Constitution of prescription against an unreasonable search and seizure and the tort of trespass is as old any of common law.

This Court is asked to hold nothing more than in such a time honored claim on trespass is governed by federal law when based on a Fourth Amendment violation.

Stephen A. Grant:

And what is required would not, again, as the Government suggests, freeze Fourth Amendment remedies in a mold that can only be broken by a constitutional amendment.

What we are talking about is not redefining the Fourth Amendment but about its enforcement being a matter of federal common law free from local rules.

Such common law could consistent with the Amendment be changed by legislative action and even if the right to damages where called the constitutional right, there’s nothing to prevent the Congress from acquiring a claim to be asserted against the Government itself or providing for indemnity for its officers.

Finally, what we are asking would not has worried the Court below, lead down a long and uncertain road in creating federal rules or even open a Pandora’s Box of civil litigation to vindicate constitutional claims.

The Courts and particularly the federal court’s responsibility to formulate federal rules and to determine the difficult question which constitutional violations give rise to damage claims is already present under the Civil Rights Act.

Recognizing the federal nature of the plaintiff’s claim here would be, if the Courts later so wished an easily distinguished decision resting as it must, not merely on the face of the Fourth Amendment but on the specific intent of the framers and on the background of common law that imposed personal liability.

In concluding, I would like to return of the question raised by Mr. Justice Blackmun to a thought that I suggested at the beginning.

For me its extra ordinary that the fundamental questions in this case raised with this Court’s decision.

Over 200 years after, they were settled in England in Entick against Carrington, in 180 years after the framers attempted to incorporate the promise of Entick into the Fourth Amendment and as I said, 25 years after this Court so pointedly suggested the availability of a federal claim and Bell against Hood, the explanation, as the Courts know too well, does not lie in any dearth of unreasonable searches and seizures, such abuses continue, and apparently unabated by judicial suppression of the legally seized evidence.

Obviously, there is something fundamentally wrong in the understanding of the people and of the police as to the meaning of the Fourth Amendment that it is in a practical sense a guarantee that can, and will be enforced.

If there’s to be a change, it will not come from simply sustaining the right to sue in federal court and as the Government points out in its brief the Civil Right Act was recognize over 10 years ago, and yet the use of the Civil Rights Act remedy has been minimal.

Stronger medicine is needed.

A reaffirmation of the citizens right under federal law and the Government’s liability in clear and resounding terms that will be heard and understood by the people and by the police and from where would it come.

From a Congress that recently authorized no knock entry by the police, clearly not.

It will be from this Court or not at all and looking at the 25 years between Bell against Hood today, it would now a very possibly never or no time.

Thank you.

Hugo L. Black:

Obviously if were to hold that there is a cause of action, Congress should pass a Bill saying that, there should not be a cause of action. What will be the situation?

Stephen A. Grant:

This Court would hold that the plaintiff had a right under the Constitution for compensation for violation of Fourth Amendment, such a law, I believe would be in derogation of Fourth Amendment, but that doesn’t mean that Congress doesn’t have considerable flexibility.

As I pointed out, they could easily adopt a bill that would require like the federal Torts Claim Act.

All they have to do would be the modify it so that the suit could be brought against the Government.

Hugo L. Black:

Your idea is that — your belief here is that if we were to hold, there is a cause of action, Congress should study the matter and reach a conclusion there should not be a cause of action, that the Congressional Act would be unconstitutional?

Stephen A. Grant:

I would certainly differ to the Court’s judgment but that would be my position, yes.

I believe it would be in derogation to the Fourth Amendment to such a statute.

Byron R. White:

You wouldn’t think Congress could instead of putting it that way say the federal court should have no jurisdiction to hear suits against federal officers?

Stephen A. Grant:

That is precisely why I insist that the question is not simply jurisdictional question, Mr. Justice White.

Byron R. White:

How about answering my question?

Stephen A. Grant:

To that I’m sorry, Mr. Justice White.

Byron R. White:

Well, what if Congress didn’t put it the way you, Mr. Justice Black put it to you but just said that federal court shall have no jurisdiction to hear any cases against federal officer?

Stephen A. Grant:

That would be fine, the suits will be brought in the state courts, but the point is that the law in the state courts would be federal law and it would be subject to being brought up to this Court, and the rules hopefully would be loud and clear on the right to damages for all kinds of suffering, and the rule on the defendant’s liability would be equally clear.

And so, the Fourth Amendment will be vindicated in the state courts.

Stephen A. Grant:

That of course were the system prior to 1875 exactly there.

Potter Stewart:

Could Congress repeal the exclusionary rule?

I guess not after Mapp against Ohio which held that it is part of the Fourth and Fourteenth Amendments.

Stephen A. Grant:

That is very —

Potter Stewart:

You said no.

Stephen A. Grant:

Yes.

But the question — there is no question that Mapp against Ohio rested very strongly on the inadequacy of other remedies.

Potter Stewart:

Well, it rested as — part of the rest on finding that the exclusionary rule is part of the Fourth and Fourteenth Amendments which was something —

Stephen A. Grant:

I think that’s right but there made very well be room once the underpinning of the inadequacy of civil remedies if there were effective civil remedy for an argument that it is essential in a case where it is being used with an over reaching part — on the part of the Government to prosecute the defendant and in that type of case maybe it is certainly an essential part where is in the technical case where there is no over reaching no authorization from higher Government Officers then perhaps, once the other basis is removed the question should be reexamined.

Potter Stewart:

So, if you prevail here the logic of progressive events might lead the Court to be invited to reconsider the — at least the full force of the exclusionary rule?

Stephen A. Grant:

It certainly might.

Thank you.

Warren E. Burger:

Thank you Mr. Grant, Mr. Feit.

The case is submitted.