The BIVENS decision is an extremely important one with which to be familiar, as it places very strong consequences on law enforcement officers' actions. Most LEOs are not familiar with this decision, although it is taught at almost all academies. Read it and smile (or weep, as the case may be.)
Case Name: BIVENS V. SIX UNKNOWN FED. NARCOTICS AGENTS, 403 U.S. 388
BIVENS V. SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF NARCOTICS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
NO. 301. ARGUED JANUARY 12, 1971-- DECIDED JUNE 21, 1971
PETITIONER'S COMPLAINT ALLEGED THAT RESPONDENT AGENTS OF THE FEDERAL
BUREAU OF NARCOTICS, ACTING UNDER COLOR OF FEDERAL AUTHORITY, MADE A
WARRANTLESS ENTRY OF HIS APARTMENT, SEARCHED THE APARTMENT, AND
ARRESTED HIM ON NARCOTICS CHARGES. ALL OF THE ACTS WERE ALLEGED TO
HAVE BEEN DONE WITHOUT PROBABLE CAUSE. PETITIONER'S SUIT TO RECOVER
DAMAGES FROM THE AGENTS WAS DISMISSED BY THE DISTRICT COURT ON THE
ALTERNATIVE GROUNDS (1) THAT IT FAILED TO STATE A FEDERAL CAUSE OF
ACTION AND (2) THAT RESPONDENTS WERE IMMUNE FROM SUIT BY VIRTUE OF
THEIR OFFICIAL POSITION. THE COURT OF APPEALS AFFIRMED ON THE FIRST
GROUND ALONE. HELD:
1. PETITIONER'S COMPLAINT STATES A FEDERAL CAUSE OF ACTION UNDER
THE FOURTH AMENDMENT FOR WHICH DAMAGES ARE RECOVERABLE UPON PROOF OF
INJURIES RESULTING FROM THE FEDERAL AGENTS' VIOLATION OF THAT
AMENDMENT. PP. 390-397.
2. THE COURT DOES NOT REACH THE IMMUNITY QUESTION, WHICH WAS NOT
PASSED ON BY THE COURT OF APPEALS. PP. 397-398.
409 F.2D 718, REVERSED AND REMANDED.
BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, AND MARSHALL, JJ., JOINED. HARLAN, J., FILED AN
OPINION CONCURRING IN THE JUDGMENT, POST, P. 398. BURGER, C. J., POST,
P. 411, BLACK, J., POST, P. 427, AND BLACKMUN, J., POST, P. 430, FILED
DISSENTING OPINIONS.
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 APARTMENTFROM STEM TO STERN. THEREAFTER,
PETITIONER WAS TAKEN TO THE FEDERAL COURTHOUSE IN BROOKLYN, WHERE HE
WAS INTERROGATED, 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, 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 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 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 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. /6/ AND OUR RECENT
DECISIONS REGARDING ELECTRONIC SURVEILLANCE HAVE MADE IT CLEAR BEYOND
PERADVENTURE THAT THE FOURTH AMENDMENT IS NOT TIED TO THE 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 SEC. 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, 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); 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); L. 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 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 BYA 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 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.
/1/ PETITIONER'S COMPLAINT DOES NOT EXPLICITLY STATE THAT THE
AGENTS HAD NO PROBABLE CAUSE FOR HIS ARREST, BUT IT DOES ALLEGE THAT
THE ARREST WAS "DONE UNLAWFULLY, UNREASONABLY AND CONTRARY TO LAW."
APP. 2. PETITIONER'S AFFIDAVIT IN SUPPORT OF HIS MOTION FOR SUMMARY
JUDGMENT SWEARS THAT THE SEARCH WAS "WITHOUT CAUSE, CONSENT OR
WARRANT," AND THAT THE ARREST WAS "WITHOUT CAUSE, REASON OR WARRANT."
APP. 28.
/2/ THE AGENTS WERE NOT NAMED IN PETITIONER'S COMPLAINT, AND THE
DISTRICT COURT ORDERED THAT THE COMPLAINT BE SERVED UPON "THOSE FEDERAL
AGENTS WHO IT IS INDICATED BY THE RECORDS OF THE UNITED STATES ATTORNEY
PARTICIPATED IN THE NOVEMBER 25, 1965, ARREST OF THE (PETITIONER)."
APP. 3. FIVE AGENTS WERE ULTIMATELY SERVED.
/3/ JUDGE WATERMAN, CONCURRING, EXPRESSED THE THOUGHT THAT "THE
FEDERAL COURTS CAN . . . ENTERTAIN THIS CAUSE OF ACTION IRRESPECTIVE OF
WHETHER A STATUTE EXISTS SPECIFICALLY AUTHORIZING A FEDERAL SUIT
AGAINST FEDERAL OFFICERS FOR DAMAGES" FOR ACTS SUCH AS THOSE ALLEGED.
IN HIS VIEW, HOWEVER, THE CRITICAL POINT WAS RECOGNITION THAT SOME
CAUSE OF ACTION EXISTED, ALBEIT A STATE-CREATED ONE, AND IN CONSEQUENCE
HE WAS WILLING "AS OF NOW" TO CONCUR IN THE HOLDING OF THE COURT OF
APPEALS. 409 F.2D, AT 726.
/4/ "(SINCE IT IS THE PRESENT POLICY OF THE DEPARTMENT OF JUSTICE
TO REMOVE TO THE FEDERAL COURTS ALL SUITS IN STATE COURTS AGAINST
FEDERAL OFFICERS FOR TRESPASS OR FALSE IMPRISONMENT, A CLAIM FOR
RELIEF, WHETHER BASED ON STATE COMMON LAW OR DIRECTLY ON THE FOURTH
AMENDMENT, WILL ULTIMATELY BE HEARD IN A FEDERAL COURT." BRIEF FOR
RESPONDENTS 13 (CITATIONS OMITTED); SEE 28 U.S.C. 1442(A); WILLINGHAM
V. MORGAN, 395 U.S. 402 (1969). IN LIGHT OF THIS, IT IS DIFFICULT TO
UNDERSTAND OUR BROTHER BLACKMUN'S COMPLAINT THAT OUR HOLDING TODAY
"OPENS THE DOOR FOR ANOTHER AVALANCHE OF NEW FEDERAL CASES." POST, AT
430. IN ESTIMATING THE MAGNITUDE OF ANY SUCH "AVALANCHE," IT IS WORTH
NOTING THAT A SURVEY OF COMPARABLE ACTIONS AGAINST STATE OFFICERS UNDER
42 U.S.C. 1983 FOUND ONLY 53 REPORTED CASES IN 17 YEARS (1951-1967)
THAT SURVIVED A MOTION TO DISMISS. GINGER & BELL, POLICE MISCONDUCT
LITIGATION-- PLAINTIFF'S REMEDIES, 15 AM.JUR.TRIALS 555, 580-590
(1968). INCREASING THIS FIGURE BY 900% TO ALLOW FOR INCREASES IN RATE
AND UNREPORTED CASES, EVERY FEDERAL DISTRICT JUDGE COULD EXPECT TO TRY
ONE SUCH CASE EVERY 13 YEARS.
/5/ NEW YORK AT THAT TIME FOLLOWED THE COMMON-LAW RULE THAT A
PRIVATE PERSON MAY ARREST ANOTHER IF THE LATTER HAS IN FACT COMMITTED A
FELONY, AND THAT IF SUCH IS THE CASE THE PRESENCE OR ABSENCE OF
PROBABLE CAUSE IS IRRELEVANT TO THE LEGALITY OF THE ARREST. SEE
MCLOUGHLIN V. NEW YORK EDISON CO., 252 N.Y. 202, 169 N.E. 277 (1929);
CF. N.Y. CODE CRIM. PROC. SEC. 183 (1958) FOR CODIFICATION OF THE
RULE. CONSPIRACY TO COMMIT A FEDERAL CRIME WAS AT THE TIME A FELONY.
ACT OF MARCH 4, 1909, SEC. 37, 35 STAT. 1096.
/6/ CONVERSELY, WE HAVE IN SOME INSTANCES REJECTED FOURTH AMENDMENT
CLAIMS DESPITE FACTS DEMONSTRATING THAT FEDERAL AGENTS WERE ACTING IN
VIOLATION OF LOCAL LAW. MCGUIRE V. UNITED STATES, 273 U.S. 95 (1927)
(TRESPASS AB INITIO); HESTER V. UNITED STATES, 265 U.S. 57 (1924)
("OPEN FIELDS" DOCTRINE); CF. BURDEAU V. MCDOWELL, 256 U.S. 465 (1921)
(POSSESSION OF STOLEN PROPERTY).
/7/ SIMILARLY, ALTHOUGH THE FOURTH AMENDMENT CONFINES AN OFFICER
EXECUTING A SEARCH WARRANT STRICTLY WITHIN THE BOUNDS SET BY THE
WARRANT, MARRON V. UNITED STATES, 275 U.S. 192, 196 (1927); SEE STANLEY
V. GEORGIA, 394 U.S. 557, 570-572 (1969) (STEWART, J., CONCURRING IN
RESULT), A PRIVATE INDIVIDUAL LAWFULLY IN THE HOME OF ANOTHER WILL NOT
NORMALLY BE LIABLE FOR TRESPASS BEYOND THE BOUNDS OF HIS INVITATION
ABSENT CLEAR NOTICE TO THAT EFFECT. SEE 1 F.HARPER & F.JAMES, THE LAW
OF TORTS 1.11 (1956).
/8/ ALTHOUGH NO STATE HAS UNDERTAKEN TO LIMIT THE COMMON-LAW
DOCTRINE THAT ONE MAY USE REASONABLE FORCE TO RESIST AN UNLAWFUL ARREST
BY A PRIVATE PERSON, AT LEAST TWO STATES HAVE OUTLAWED RESISTANCE TO AN
UNLAWFUL ARREST SOUGHT TO BE MADE BY A PERSON KNOWN TO BE AN OFFICER OF
THE LAW. R.I. GEN. LAWS SEC. 12-7-10 (1969); STATE V. KOONCE, 89
N.J.SUPER. 169, 180-184, 214 A.2D 428, 433-436 (1965).
MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENT.
MY INITIAL VIEW OF THIS CASE WAS THAT THE COURT OF APPEALS WAS
CORRECT IN DISMISSING THE COMPLAINT, BUT FOR REASONS STATED IN THIS
OPINION I AM NOW PERSUADED TO THE CONTRARY. ACCORDINGLY, I JOIN IN THE
JUDGMENT OF REVERSAL.
PETITIONER ALLEGED, IN HIS SUIT IN THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK, THAT THE DEFENDANTS, FEDERAL AGENTS
ACTING UNDER COLOR OF FEDERAL LAW, SUBJECTED HIM TO A SEARCH AND
SEIZURE CONTRAVENING THE REQUIREMENTS OF THE FOURTH AMENDMENT. HE
SOUGHT DAMAGES IN THE AMOUNT OF $15,000 FROM EACH OF THE AGENTS.
FEDERAL JURISDICTION WAS CLAIMED, INTER ALIA, /1/ UNDER 28 U.S.C.
1331(A) WHICH PROVIDES:
"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL
CIVIL ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE SUM
OR VALUE OF $10,000 EXCLUSIVE OF INTEREST AND COSTS, AND ARISES
UNDER THE CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES."
THE DISTRICT COURT DISMISSED THE COMPLAINT FOR LACK OF FEDERAL
JURISDICTION UNDER 28 U.S.C. 1331(A) AND FAILURE TO STATE A CLAIM FOR
WHICH RELIEF MAY BE GRANTED. 276 F.SUPP 12 (EDNY 1967). ON APPEAL,
THE COURT OF APPEALS CONCLUDED, ON THE BASIS OF THIS COURT'S DECISION
IN BELL V. HOOD, 327 U.S. 678 (1946), THAT PETITIONER'S CLAIM FOR
DAMAGES DID "(ARISE) UNDER THE CONSTITUTION" WITHIN THE MEANING OF 28
U.S.C. 1331(A); BUT THE DISTRICT COURT'S JUDGMENT WAS AFFIRMED ON THE
GROUND THAT THE COMPLAINT FAILED TO STATE A CLAIM FOR WHICH RELIEF CAN
BE GRANTED. 409 F.2D 718 (CA2 1969).
IN SO CONCLUDING, THA: (1) THE FRAMERS OF THE FOURTH AMENDMENT DID
NOT APPEAR TO CONTEMPLATE A "WHOLLY NEW FEDERAL CAUSE OF ACTION FOUNDED
DIRECTLY ON THE FOURTH AMENDMENT," ID., AT 721, AND (2) WHILE THE
FEDERAL COURTS HAD POWER UNDER A GENERAL GRANT OF JURISDICTION TO IMPLY
A FEDERAL REMEDY FOR THE ENFORCEMENT OF A CONSTITUTIONAL RIGHT, THEY
SHOULD DO SO ONLY WHEN THE ABSENCE OF ALTERNATIVE REMEDIES RENDERS THE
CONSTITUTIONAL COMMAND A "MERE 'FORM OF WORDS.'" ID., AT 723. THE
GOVERNMENT TAKES ESSENTIALLY THE SAME POSITION HERE. BRIEF FOR
RESPONDENTS 4-5. AND TWO MEMBERS OF THE COURT ADD THE CONTENTION THAT
WE LACK THE CONSTITUTIONAL POWER TO ACCORD BIVENS A REMEDY FOR DAMAGES
IN THE ABSENCE OF CONGRESSIONAL ACTION CREATING "A FEDERAL CAUSE OF
ACTION FOR DAMAGES FOR AN UNREASONABLE SEARCH IN VIOLATION OF THE
FOURTH AMENDMENT." OPINION OF MR. JUSTICE BLACK, POST, AT 427; SEE
ALSO OPINION OF THE CHIEF JUSTICE, POST, AT 418, 422.
FOR THE REASONS SET FORTH BELOW, I AM OF THE OPINION THAT FEDERAL
COURTS DO HAVE THE POWER TO AWARD DAMAGES FOR VIOLATION OF
"CONSTITUTIONALLY PROTECTED INTERESTS" AND I AGREE WITH THE COURT THAT
A TRADITIONAL JUDICIAL REMEDY SUCH AS DAMAGES IS APPROPRIATE TO THE
VINDICATION OF THE PERSONAL INTERESTS PROTECTED BY THE FOURTH
AMENDMENT.
I
I TURN FIRST TO THE CONTENTION THAT THE CONSTITUTIONAL POWER OF
FEDERAL COURTS TO ACCORD BIVENS DAMAGES FOR HIS CLAIM DEPENDS ON THE
PASSAGE OF A STATUTE CREATING A "FEDERAL CAUSE OF ACTION." ALTHOUGH
THE POINT IS NOT ENTIRELY FREE OF AMBIGUITY, /2/ I DO NOT UNDERSTAND
EITHER THE GOVERNMENT OR MY DISSENTING BROTHERS TO MAINTAIN THAT
BIVENS' CONTENTION THAT HE IS ENTITLED TO BE FREE FROM THE TYPE OF
OFFICIAL CONDUCT PROHIBITED BY THE FOURTH AMENDMENT DEPENDS ON A
DECISION BY THE STATE IN WHICH HE RESIDES TO ACCORD HIM A REMEDY. SUCH
A POSITION WOULD BE INCOMPATIBLE WITH THE PRESUMED AVAILABILITY OF
FEDERAL EQUITABLE RELIEF, IF A PROPER SHOWING CAN BE MADE IN TERMS OF
THE ORDINARY PRINCIPLES GOVERNING EQUITABLE REMEDIES. SEE BELL V.
HOOD, 327 U.S. 678, 684 (1946). HOWEVER BROAD A FEDERAL COURT'S
DISCRETION CONCERNING EQUITABLE REMEDIES, IT IS ABSOLUTELY CLEAR-- AT
LEAST AFTER ERIE R. CO. V. TOMPKINS, 304 U.S. 64 (1938)-- THAT IN A
NONDIVERSITY SUIT A FEDERAL COURT'S POWER TO GRANT EVEN EQUITABLE
RELIEF DEPENDS ON THE PRESENCE OF A SUBSTANTIVE RIGHT DERIVED FROM
FEDERAL LAW. COMPARE GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 105-107
(1945), WITH HOLMBERG V. ARMBRECHT, 327 U.S. 392, 395 (1946). SEE ALSO
H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 818
819 (1953).
THUS THE INTEREST WHICH BIVENS CLAIMS-- TO BE FREE FROM OFFICIAL
CONDUCT IN CONTRAVENTION OF THE FOURTH AMENDMENT-- IS A FEDERALLY
PROTECTED INTEREST. SEE GENERALLY KATZ, THE JURISPRUDENCE OF REMEDIES:
CONSTITUTIONAL LEGALITY AND THE LAW OF TORTS IN BELL V. HOOD, 117
U.PA.L.REV. 1, 33-34 (1968). /3/ THEREFORE, THE QUESTION OF JUDICIAL
POWER TO GRANT BIVENS DAMAGES IS NOT A PROBLEM OF THE "SOURCE" OF THE
"RIGHT"; INSTEAD, THE QUESTION IS WHETHER THE POWER TO AUTHORIZE
DAMAGES AS A JUDICIAL REMEDY FOR THE VINDICATION OF A FEDERAL
CONSTITUTIONAL RIGHT IS PLACED BY THE CONSTITUTION ITSELF EXCLUSIVELY
IN CONGRESS' HANDS.
II
THE CONTENTION THAT THE FEDERAL COURTS ARE POWERLESS TO ACCORD A
LITIGANT DAMAGES FOR A CLAIMED INVASION OF HIS FEDERAL CONSTITUTIONAL
RIGHTS UNTIL CONGRESS EXPLICITLY AUTHORIZES THE REMEDY CANNOT REST ON
THE NOTION THAT THE DECISION TO GRANT COMPENSATORY RELIEF INVOLVES A
RESOLUTION OF POLICY CONSIDERATIONS NOT SUSCEPTIBLE OF JUDICIAL
DISCERNMENT. THUS, IN SUITS FOR DAMAGES BASED ON VIOLATIONS OF FEDERAL
STATUTES LACKING ANY EXPRESS AUTHORIZATION OF A DAMAGE REMEDY, THIS
COURT HAS AUTHORIZED SUCH RELIEF WHERE, IN ITS VIEW, DAMAGES ARE
NECESSARY TO EFFECTUATE THE CONGRESSIONAL POLICY UNDERPINNING THE
SUBSTANTIVE PROVISIONS OF THE STATUTE. J. I. CASE CO. V. BORAK, 377
U.S. 426 (1964); TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN &
ENGINEMEN, 323 U.S. 210, 213 (1944). CF. WYANDOTTE TRANSPORTATION CO.
V. UNITED STATES, 389 U.S. 191, 201-204 (1967). /4/
IF IT IS NOT THE NATURE OF THE REMEDY WHICH IS THOUGHT TO RENDER A
JUDGMENT AS TO THE APPROPRIATENESS OF DAMAGES INHERENTLY "LEGISLATIVE,"
THEN IT MUST BE THE NATURE OF THE LEGAL INTEREST OFFERED AS AN
OCCASION FOR INVOKING OTHERWISE APPROPRIATE JUDICIAL RELIEF. BUT I DO
NOT THINK THAT THE FACT THAT THE INTEREST IS PROTECTED BY THE
CONSTITUTION RATHER THAN STATUTE OR COMMON LAW JUSTIFIES THE ASSERTION
THAT FEDERAL COURTS ARE POWERLESS TO GRANT DAMAGES IN THE ABSENCE OF
EXPLICIT CONGRESSIONAL ACTION AUTHORIZING THE REMEDY. INITIALLY, I
NOTE THAT IT WOULD BE AT LEAST ANOMALOUS TO CONCLUDE THAT THE FEDERAL
JUDICIARY-- WHILE COMPETENT TO CHOOSE AMONG THE RANGE OF TRADITIONAL
JUDICIAL REMEDIES TO IMPLEMENT STATUTORY AND COMMON-LAW POLICIES, AND
EVEN TO GENERATE SUBSTANTIVE RULES GOVERNING PRIMARY BEHAVIOR IN
FURTHERANCE OF BROADLY FORMULATED POLICIES ARTICULATED BY STATUTE OR
CONSTITUTION, SEE TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448
(1957); UNITED STATES V. STANDARD OIL CO., 332 U.S. 301, 304-311
(1947); CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363 (1943)-- IS
POWERLESS TO ACCORD A DAMAGES REMEDY TO VINDICATE SOCIAL POLICIES
WHICH, BY VIRTUE OF THEIR INCLUSION IN THE CONSTITUTION, ARE AIMED
PREDOMINANTLY AT RESTRAINING THE GOVERNMENT AS AN INSTRUMENT OF THE
POPULAR WILL.
MORE IMPORTANTLY, THE PRESUMED AVAILABILITY OF FEDERAL EQUITABLE
RELIEF AGAINST THREATENED INVASIONS OF CONSTITUTIONAL INTERESTS APPEARS
ENTIRELY TO NEGATE THE CONTENTION THAT THE STATUS OF AN INTEREST AS
CONSTITUTIONALLY PROTECTED DIVESTS FEDERAL COURTS OF THE POWER TO GRANT
DAMAGES ABSENT EXPRESS CONGRESSIONAL AUTHORIZATION. CONGRESS PROVIDED
SPECIALLY FOR THE EXERCISE OF EQUITABLE REMEDIAL POWERS BY FEDERAL
COURTS, SEE ACT OF MAY 8, 1792, SEC. 2, 1 STAT. 276; C. WRIGHT, LAW OF
FEDERAL COURTS 257 (2D ED., 1970), IN PART BECAUSE OF THE LIMITED
AVAILABILITY OF EQUITABLE REMEDIES IN STATE COURTS IN THE EARLY DAYS OF
THE REPUBLIC. SEE GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 104-105
(1945). AND THIS COURT'S DECISIONS MAKE CLEAR THAT, AT LEAST ABSENT
CONGRESSIONAL RESTRICTIONS, THE SCOPE OF EQUITABLE REMEDIAL DISCRETION
IS TO BE DETERMINED ACCORDING TO THE DISTINCTIVE HISTORICAL TRADITIONS
OF EQUITY AS AN INSTITUTION, HOLMBERG V. ARMBRECHT, 327 U.S. 392, 395
396 (1946); SPRAGUE V. TICONIC NATIONAL BANK, 307 U.S. 161, 165-166
(1939). THE REACH OF A FEDERAL DISTRICT COURT'S "INHERENT EQUITABLE
POWERS," TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, 460 (BURTON,
J., CONCURRING IN RESULT), IS BROAD INDEED, E.G., SWANN V. CHARLOTTE
MECKLENBURG BOARD OF EDUCATION, 401 U.S. 1 (1971); NONETHELESS, THE
FEDERAL JUDICIARY IS NOT EMPOWERED TO GRANT EQUITABLE RELIEF IN THE
ABSENCE OF CONGRESSIONAL ACTION EXTENDING JURISDICTION OVER THE SUBJECT
MATTER OF THE SUIT. SEE TEXTILE WORKERS V. LINCOLN MILLS, SUPRA, AT
460 (BURTON, J., CONCURRING IN RESULT); KATZ, 117 U.PA.L.REV.,AT 43.
/5/
IF EXPLICIT CONGRESSIONAL AUTHORIZATION IS AN ABSOLUTE PREREQUISITE
TO THE POWER OF A FEDERAL COURT TO ACCORD COMPENSATORY RELIEF
REGARDLESS OF THE NECESSITY OR APPROPRIATENESS OF DAMAGES AS A REMEDY
SIMPLY BECAUSE OF THE STATUS OF A LEGAL INTEREST AS CONSTITUTIONALLY
PROTECTED, THEN IT SEEMS TO ME THAT EXPLICIT CONGRESSIONAL
AUTHORIZATION IS SIMILARLY PREREQUISITE TO THE EXERCISE OF EQUITABLE
REMEDIAL DISCRETION IN FAVOR OF CONSTITUTIONALLY PROTECTED INTERESTS.
CONVERSELY, IF A GENERAL GRANT OF JURISDICTION TO THE FEDERAL COURTS BY
CONGRESS IS THOUGHT ADEQUATE TO EMPOWER A FEDERAL COURT TO GRANT
EQUITABLE RELIEF FOR ALL AREAS OF SUBJECT-MATTER JURISDICTION
ENUMERATED THEREIN, SEE 28 U.S.C. 1331(A), THEN IT SEEMS TO ME THAT THE
SAME STATUTE IS SUFFICIENT TO EMPOWER A FEDERAL COURT TO GRANT A
TRADITIONAL REMEDY AT LAW. /6/ OF COURSE, THE SPECIAL HISTORICAL
TRADITIONS GOVERNING THE FEDERAL EQUITY SYSTEM, SEE SPRAGUE V. TICONIC
NATIONAL BANK, 307 U.S. 161 (1939), MIGHT STILL BEAR ON THE COMPARATIVE
APPROPRIATENESS OF GRANTING EQUITABLE RELIEF AS OPPOSED TO MONEY
DAMAGES. THAT POSSIBILITY, HOWEVER, RELATES, NOT TO WHETHER THE
FEDERAL COURTS HAVE THE POWER TO AFFORD ONE TYPE OF REMEDY AS OPPOSED
TO THE OTHER, BUT RATHER TO THE CRITERIA WHICH SHOULD GOVERN THE
EXERCISE OF OUR POWER. TO THAT QUESTION, I NOW PASS.
III
THE MAJOR THRUST OF THE GOVERNMENT'S POSITION IS THAT, WHERE
CONGRESS HAS NOT EXPRESSLY AUTHORIZED A PARTICULAR REMEDY, A FEDERAL
COURT SHOULD EXERCISE ITS POWER TO ACCORD A TRADITIONAL FORM OF
JUDICIAL RELIEF AT THE BEHEST OF A LITIGANT, WHO CLAIMS A
CONSTITUTIONALLY PROTECTED INTEREST HAS BEEN INVADED, ONLY WHERE THE
REMEDY IS "ESSENTIAL," OR "INDISPENSABLE FOR VINDICATING CONSTITUTIONAL
RIGHTS." BRIEF FOR RESPONDENTS 19, 24. WHILE THIS "ESSENTIALITY" TEST
IS MOST CLEARLY ARTICULATED WITH RESPECT TO DAMAGES REMEDIES,
APPARENTLY THE GOVERNMENT BELIEVES THE SAME TEST EXPLAINS THE EXERCISE
OF EQUITABLE REMEDIAL POWERS. ID., AT 17-18. IT IS ARGUED THAT
HISTORICALLY THE COURT HAS RARELY EXERCISED THE POWER TO ACCORD SUCH
RELIEF IN THE ABSENCE OF AN EXPRESS CONGRESSIONAL AUTHORIZATION AND
THAT "(IF CONGRESS HAD THOUGHT THAT FEDERAL OFFICERS SHOULD BE SUBJECT
TO A LAW DIFFERENT THAN STATE LAW, IT WOULD HAVE HAD NO DIFFICULTY IN
SAYING SO, AS IT DID WITH RESPECT TO STATE OFFICERS . . . " ID., AT 20
21; SEE 42 U.S.C. 1983. ALTHOUGH CONCEDING THAT THE STANDARD OF
DETERMINING WHETHER A DAMAGE REMEDY SHOULD BE UTILIZED TO EFFECTUATE
STATUTORY POLICIES IS ONE OF "NECESSITY" OR "APPROPRIATENESS," SEE J.
I. CASE CO. V. BORAK, 377 U.S. 426, 432 (1964); UNITED STATES V.
STANDARD OIL CO., 332 U.S. 301, 307 (1947), THE GOVERNMENT CONTENDS
THAT QUESTIONS CONCERNING CONGRESSIONAL DISCRETION TO MODIFY JUDICIAL
REMEDIES RELATING TO CONSTITUTIONALLY PROTECTED INTERESTS WARRANT A
MORE STRINGENT CONSTRAINT ON THE EXERCISE OF JUDICIAL POWER WITH
RESPECT TO THIS CLASS OF LEGALLY PROTECTED INTERESTS. BRIEF FOR
RESPONDENTS 21-22.
THESE ARGUMENTS FOR A MORE STRINGENT TEST TO GOVERN THE GRANT OF
DAMAGES IN CONSTITUTIONAL CASES /7/ SEEM TO BE ADEQUATELY ANSWERED BY
THE POINT THAT THE JUDICIARY HAS A PARTICULAR RESPONSIBILITY TO ASSURE
THE VINDICATION OF CONSTITUTIONAL INTERESTS SUCH AS THOSE EMBRACED BY
THE FOURTH AMENDMENT. TO BE SURE, "IT MUST BE REMEMBERED THAT
LEGISLATURES ARE ULTIMATE GUARDIANS OF THE LIBERTIES AND WELFARE OF THE
PEOPLE IN QUITE AS GREAT A DEGREE AS THE COURTS." MISSOURI, KANSAS &
TEXAS R. CO. V. MAY, 194 U.S. 267, 270 (1904). BUT IT MUST ALSO BE
RECOGNIZED THAT THE BILL OF RIGHTS IS PARTICULARLY INTENDED TO
VINDICATE THE INTERESTS OF THE INDIVIDUAL IN THE FACE OF THE POPULAR
WILL AS EXPRESSED IN LEGISLATIVE MAJORITIES; AT THE VERY LEAST, IT
STRIKES ME AS NO MORE APPROPRIATE TO AWAIT EXPRESS CONGRESSIONAL
AUTHORIZATION OF TRADITIONAL JUDICIAL RELIEF WITH REGARD TO THESE LEGAL
INTERESTS THAN WITH RESPECT TO INTERESTS PROTECTED BY FEDERAL
STATUTES.
THE QUESTION THEN, IS, AS I SEE IT, WHETHER COMPENSATORY RELIEF IS
"NECESSARY" OR "APPROPRIATE" TO THE VINDICATION OF THE INTEREST
ASSERTED. CF. J. I. CASE CO. V. BORAK, SUPRA, AT 432; UNITED STATES V.
STANDARD OIL CO., SUPRA, AT 307; HILL, CONSTITUTIONAL REMEDIES, 69
COL.L.REV. 1109, 1155 (1969); KATZ, 117 U.PA.L.REV.,AT 72. IN
RESOLVING THAT QUESTION, IT SEEMS TO ME THAT THE RANGE OF POLICY
CONSIDERATIONS WE MAY TAKE INTO ACCOUNT IS AT LEAST AS BROAD AS THE
RANGE OF THOSE A LEGISLATURE WOULD CONSIDER WITH RESPECT TO AN EXPRESS
STATUTORY AUTHORIZATION OF A TRADITIONAL REMEDY. IN THIS REGARD I
AGREE WITH THE COURT THAT THE APPROPRIATENESS OF ACCORDING BIVENS
COMPENSATORY RELIEF DOES NOT TURN SIMPLY ON THE DETERRENT EFFECT
LIABILITY WILL HAVE ON FEDERAL OFFICIAL CONDUCT. /8/ DAMAGES AS A
TRADITIONAL FORM OF COMPENSATION FOR INVASION OF A LEGALLY PROTECTED
INTEREST MAY BE ENTIRELY APPROPRIATE EVEN IF NO SUBSTANTIAL DETERRENT
EFFECTS ON FUTURE OFFICIAL LAWLESSNESS MIGHT BE THOUGHT TO RESULT.
BIVENS, AFTER ALL, HAS INVOKED JUDICIAL PROCESSES CLAIMING ENTITLEMENT
TO COMPENSATION FOR INJURIES RESULTING FROM ALLEGEDLY LAWLESS OFFICIAL
BEHAVIOR, IF THOSE INJURIES ARE PROPERLY COMPENSABLE IN MONEY DAMAGES.
I DO NOT THINK A COURT OF LAW-- VESTED WITH THE POWER TO ACCORD A
REMEDY-- SHOULD DENY HIM HIS RELIEF SIMPLY BECAUSE HE CANNOT SHOW THAT
FUTURE LAWLESS CONDUCT WILL THEREBY BE DETERRED.
AND I THINK IT IS CLEAR THAT BIVENS ADVANCES A CLAIM OF THE SORT
THAT, IF PROVED, WOULD BE PROPERLY COMPENSABLE IN DAMAGES. THE
PERSONAL INTERESTS PROTECTED BY THE FOURTH AMENDMENT ARE THOSE WE
ATTEMPT TO CAPTURE BY THE NOTION OF "PRIVACY"; WHILE THE COURT TODAY
PROPERLY POINTS OUT THAT THE TYPE OF HARM WHICH OFFICIALS CAN INFLICT
WHEN THEY INVADE PROTECTED ZONES OF AN INDIVIDUAL'S LIFE ARE DIFFERENT
FROM THE TYPES OF HARM PRIVATE CITIZENS INFLICT ON ONE ANOTHER, THE
EXPERIENCE OF JUDGES IN DEALING WITH PRIVATE TRESPASS AND FALSE
IMPRISONMENT CLAIMS SUPPORTS THE CONCLUSION THAT COURTS OF LAW ARE
CAPABLE OF MAKING THE TYPES OF JUDGMENT CONCERNING CAUSATION AND
MAGNITUDE OF INJURY NECESSARY TO ACCORD MEANINGFUL COMPENSATION FOR
INVATION OF FOURTH AMENDMENT RIGHTS. /9/
ON THE OTHER HAND, THE LIMITATIONS ON STATE REMEDIES FOR VIOLATION
OF COMMON-LAW RIGHTS BY PRIVATE CITIZENS ARGUE IN FAVOR OF A FEDERAL
DAMAGES REMEDY. THE INJURIES INFLICTED BY OFFICIALS ACTING UNDER COLOR
OF LAW, WHILE NO LESS COMPENSABLE IN DAMAGES THAN THOSE INFLICTED BY
PRIVATE PARTIES, ARE SUBSTANTIALLY DIFFERENT IN KIND, AS THE COURT'S
OPINION TODAY DISCUSSES IN DETAIL. SEE MONROE V. PAPE, 365 U.S. 167,
195 (1961) (HARLAN, J., CONCURRING). IT SEEMS TO ME ENTIRELY PROPER
THAT THESE INJURIES BE COMPENSABLE ACCORDING TO UNIFORM RULES OF
FEDERAL LAW, ESPECIALLY IN LIGHT OF THE VERY LARGE ELEMENT OF FEDERAL
LAW WHICH MUST IN ANY EVENT CONTROL THE SCOPE OF OFFICIAL DEFENSES TO
LIABILITY. SEE WHEELDIN V. WHEELER, 373 U.S. 647, 652 (1963); MONROE
V. PAPE, SUPRA, AT 194-195 (HARLAN, J., CONCURRING); HOWARD V. LYONS,
360 U.S. 593 (1959). CERTAINLY, THERE IS VERY LITTLE TO BE GAINED FROM
THE STANDPOINT OF FEDERALISM BY PRESERVING DIFFERENT RULES OF LIABILITY
FOR FEDERAL OFFICERS DEPENDENT ON THE STATE WHERE THE INJURY OCCURS.
CF. UNITED STATES V. STANDARD OIL CO., 332 U.S. 301, 305-311 (1947).
PUTTING ASIDE THE DESIRABILITY OF LEAVING THE PROBLEM OF FEDERAL
OFFICIAL LIABILITY TO THE VAGARIES OF COMMON-LAW ACTIONS, IT IS
APPARENT THAT SOME FORM OF DAMAGES IS THE ONLY POSSIBLE REMEDY FOR
SOMEONE IN BIVENS' ALLEGED POSITION. IT WILL BE A RARE CASE INDEED IN
WHICH AN INDIVIDUAL IN BIVENS' POSITION WILL BE ABLE TO OBVIATE THE
HARM BY SECURING INJUNCTIVE RELIEF FROM ANY COURT. HOWEVER DESIRABLE A
DIRECT REMEDY AGAINST THE GOVERNMENT MIGHT BE AS A SUBSTITUTE FOR
INDIVIDUAL OFFICIAL LIABILITY, THE SOVEREIGN STILL REMAINS IMMUNE TO
SUIT. FINALLY, ASSUMING BIVENS' INNOCENCE OF THE CRIME CHARGED, THE
"EXCLUSIONARY RULE" IS SIMPLY IRRELEVANT. FOR PEOPLE IN BIVENS' SHOES,
IT IS DAMAGES OR NOTHING.
THE ONLY SUBSTANTIAL POLICY CONSIDERATION ADVANCED AGAINST
RECOGNITION OF A FEDERAL CAUSE OF ACTION FOR VIOLATION OF FOURTH
AMENDMENT RIGHTS BY FEDERAL OFFICIALS IS THE INCREMENTAL EXPENDITURE OF
JUDICIAL RESOURCES THAT WILL BE NECESSITATED BY THIS CLASS OF
LITIGATION. THERE IS, HOWEVER, SOMETHING ULTIMATELY SELF-DEFEATING
ABOUT THIS ARGUMENT. FOR IF, AS THE GOVERNMENT CONTENDS, DAMAGES WILL
RARELY BE REALIZED BY PLAINTIFFS IN THESE CASES BECAUSE OF JURY
HOSTILITY, THE LIMITED RESOURCES OF THE OFFICIAL CONCERNED, ETC., THEN
I AM NOT READY TO ASSUME THAT THERE WILL BE A SIGNIFICANT INCREASE IN
THE EXPENDITURE OF JUDICIAL RESOURCES ON THESE CLAIMS. FEW RESPONSIBLE
LAWYERS AND PLAINTIFFS ARE LIKELY TO CHOOSE THE COURSE OF LITIGATION IF
THE STATISTICAL CHANCES OF SUCCESS ARE TRULY DE MINIMIS. AND I SIMPLY
CANNOT AGREE WITH MY BROTHER BLACK THAT THE POSSIBILITY OF "FRIVOLOUS"
CLAIMS-- IF DEFINED SIMPLY AS CLAIMS WITH NO LEGAL MERIT-- WARRANTS
CLOSING THE COURTHOUSE DOORS TO PEOPLE IN BIVENS' SITUATION. THERE ARE
OTHER WAYS, SHORT OF THAT, OF COPING WITH FRIVOLOUS LAWSUITS.
ON THE OTHER HAND, IF-- AS I BELIEVE IS THE CASE WITH RESPECT, AT
LEAST, TO THE MOST FLAGRANT ABUSES OF OFFICIAL POWER-- DAMAGES TO SOME
DEGREE WILL BE AVAILABLE WHEN THE OPTION OF LITIGATION IS CHOSEN, THEN
THE QUESTION APPEARS TO BE HOW FOURTH AMENDMENT INTERESTS RANK ON A
SCALE OF SOCIAL VALUES COMPARED WITH, FOR EXAMPLE, THE INTERESTS OF
STOCKHOLDERS DEFRAUDED BY MISLEADING PROXIES. SEE J. I. CASE CO. V.
BORAK, SUPRA. JUDICIAL RESOURCES, I AM WELL AWARE, ARE INCREASINGLY
SCARCE THESE DAYS. NONETHELESS, WHEN WE AUTOMATICALLY CLOSE THE
COURTHOUSE DOOR SOLELY ON THIS BASIS, WE IMPLICITLY EXPRESS A VALUE
JUDGMENT ON THE COMPARATIVE IMPORTANCE OF CLASSES OF LEGALLY PROTECTED
INTERESTS. AND CURRENT LIMITATIONS UPON THE EFFECTIVE FUNCTIONING OF
THE COURTS ARISING FROM BUDGETARY INADEQUACIES SHOULD NOT BE PERMITTED
TO STAND IN THE WAY OF THE RECOGNITION OF OTHERWISE SOUND
CONSTITUTIONAL PRINCIPLES.
OF COURSE, FOR A VARIETY OF REASONS, THE REMEDY MAY NOT OFTEN BE
SOUGHT. SEE GENERALLY FOOTE, TORT REMEDIES FOR POLICE VIOLATIONS OF
INDIVIDUAL RIGHTS, 39 MINN.L.REV. 493 (1955). AND THE COUNTERVAILING
INTERESTS IN EFFICIENT LAW ENFORCEMENT OF COURSE ARGUE FOR A PROTECTIVE
ZONE WITH RESPECT TO MANY TYPES OF FOURTH AMENDMENT VIOLATIONS. CF.
BARR V. MATTEO, 360 U.S. 564 (1959) (OPINION OF HARLAN, J.). 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. ALTHOUGH LITIGANTS MAY NOT OFTEN
CHOOSE TO SEEK RELIEF, IT IS IMPORTANT, IN A CIVILIZED SOCIETY, THAT
THE JUDICIAL BRANCH OF THE NATION'S GOVERNMENT STAND READY TO AFFORD A
REMEDY IN THESE CIRCUMSTANCES. IT GOES WITHOUT SAYING THAT I INTIMATE
NO VIEW ON THE MERITS OF PETITIONER'S UNDERLYING CLAIM.
FOR THESE REASONS, I CONCUR IN THE JUDGMENT OF THE COURT.
/1/ PETITIONER ALSO ASSERTED FEDERAL JURISDICTION UNDER 42 U.S.C.
1983 AND 28 U.S.C. 1343(3), AND 28 U.S.C. 1343(4). NEITHER WILL
SUPPORT FEDERAL JURISDICTION OVER THE CLAIM. SEE BIVENS V. SIX UNKNOWN
NAMED AGENTS, 409 F.2D 718, 720 N. 1 (CA2 1969).
/2/ SEE N. 3, INFRA.
/3/ THE GOVERNMENT APPEARS NOT QUITE READY TO CONCEDE THIS POINT.
CERTAIN POINTS IN THE GOVERNMENT'S ARGUMENT SEEM TO SUGGEST THAT THE
"STATE-CREATED RIGHT-- FEDERAL DEFENSE" MODEL REACHES NOT ONLY THE
QUESTION OF THE POWER TO ACCORD A FEDERAL DAMAGES REMEDY, BUT ALSO THE
CLAIM TO ANY JUDICIAL REMEDY IN ANY COURT. THUS, WE ARE POINTED TO
LASSON'S OBSERVATION CONCERNING MADISON'S VERSION OF THE FOURTH
AMENDMENT AS INTRODUCED INTO THE HOUSE:
"THE OBSERVATION MAY BE MADE THAT THE LANGUAGE OF THE PROPOSAL DID
NOT PURPORT TO CREATE THE RIGHT TO BE SECURE FROM UNREASONABLE SEARCH
AND SEIZURES BUT MERELY STATED IT AS A RIGHT WHICH ALREADY EXISTED."
N. LASSON, HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION 100 N. 77 (1937), QUOTED IN BRIEF FOR
RESPONDENTS 11 N. 7. AND, ON THE PROBLEM OF FEDERAL EQUITABLE
VINDICATION OF CONSTITUTIONAL RIGHTS WITHOUT REGARD TO THE PRESENCE OF
A "STATE-CREATED RIGHT," SEE HART, THE RELATIONS BETWEEN STATE AND
FEDERAL LAW, 54 COL.L.REV. 489, 523-524 (1954), QUOTED IN BRIEF FOR
RESPONDENTS 17.
ON THIS POINT, THE CHOICE OF PHRASEOLOGY IN THE FOURTH AMENDMENT
ITSELF IS SINGULARLY UNPERSUASIVE. THE LEADING ARGUMENT AGAINST A
"BILL OF RIGHTS" WAS THE FEAR THAT INDIVIDUAL LIBERTIES NOT SPECIFIED
EXPRESSLY WOULD BE TAKEN AS EXCLUDED. SEE GENERALLY, LASSON, SUPRA, AT
79-105. THIS CIRCUMSTANCE ALONE MIGHT WELL EXPLAIN WHY THE AUTHORS OF
THE BILL OF RIGHTS WOULD OPT FOR LANGUAGE WHICH PRESUMES THE EXISTENCE
OF A FUNDAMENTAL INTEREST IN LIBERTY, ALBEIT ORIGINALLY DERIVED FROM
THE COMMON LAW. SEE ENTICK V. CARRINGTON, 19 HOW.ST.TR. 1029, 95
ENG.REP. 807 (1765).
IN TRUTH, THE LEGISLATIVE RECORD AS A WHOLE BEHIND THE BILL OF
RIGHTS IS SILENT ON THE RATHER REFINED DOCTRINAL QUESTION WHETHER THE
FRAMERS CONSIDERED THE RIGHTS THEREIN ENUMERATED AS DEPENDENT IN THE
FIRST INSTANCE ON THE DECISION OF A STATE TO ACCORD LEGAL STATUS TO THE
PERSONAL INTERESTS AT STAKE. THAT IS UNDERSTANDABLE SINCE THE
GOVERNMENT ITSELF POINTS OUT THAT GENERAL FEDERAL-QUESTION JURISDICTION
WAS NOT EXTENDED TO THE FEDERAL DISTRICT COURTS UNTIL 1875. ACT OF
MARCH 3, 1875, SEC. 1, 18 STAT. 470. THE MOST THAT CAN BE DRAWN FROM
THIS HISTORICAL FACT IS THAT THE AUTHORS OF THE BILL OF RIGHTS ASSUMED
THE ADEQUACY OF COMMON-LAW REMEDIES TO VINDICATE THE FEDERALLY
PROTECTED INTEREST. ONE MUST FIRST COMBINE THIS ASSUMPTION WITH
CONTEMPORARY MODES OF JURISPRUDENTIAL THOUGHT WHICH APPEARED TO LINK
"RIGHTS" AND "REMEDIES" IN A 1:1 CORRELATION, CF. MARBURY V. MADISON, 1
CRANCH 137, 163 (1803), BEFORE REACHING THE CONCLUSION THAT THE FRAMERS
ARE TO BE UNDERSTOOD TODAY AS HAVING CREATED NO FEDERALLY PROTECTED
INTERESTS. AND, OF COURSE, THAT WOULD SIMPLY REQUIRE THE CONCLUSION
THAT FEDERAL EQUITABLE RELIEF WOULD NOT LIE TO PROTECT THOSE INTERESTS
GUARDED BY THEFOURTH AMENDMENT. PROFESSOR HART'S OBSERVATIONS
CONCERNING THE "IMPERCEPTIBLE STEPS" BETWEEN IN RE AYERS, 123 U.S. 443
(1887), AND EX PARTE YOUNG, 209 U.S. 123 (1908), SEE HART, SUPRA, FAIL
TO PERSUADE ME THAT THE SOURCE OF THE LEGAL INTEREST ASSERTED HERE IS
OTHER THAN THE FEDERAL CONSTITUTION ITSELF. IN RE AYERS CONCERNED THE
PRECISE QUESTION WHETHER THE ELEVENTH AMENDMENT BARRED SUIT IN A
FEDERAL COURT FOR AN INJUNCTION COMPELLING A STATE OFFICER TO PERFORM A
CONTRACT TO WHICH THE STATE WAS A PARTY. HAVING CONCLUDED THAT THE
SUIT WAS INESCAPABLY A SUIT AGAINST THE STATE UNDER THE ELEVENTH
AMENDMENT, THE COURT SPOKE OF THE PRESENCE OF STATE-CREATED RIGHTS AS A
DISTINGUISHING FACTOR SUPPORTING THE EXERCISE OF FEDERAL JURISDICTION
IN OTHER CONTRACT CLAUSE CASES. THE ABSENCE OF A STATE-CREATED RIGHT
IN IN RE AYERS SERVED TO DISTINGUISH THAT CASE FROM THE PERSPECTIVE OF
THE STATE'S IMMUNITY TO SUIT; AYERS SIMPLY DOES NOT SPEAK TO THE
ANALYTICALLY DISTINCT QUESTION WHETHER THE CONSTITUTION IS IN THE
RELEVANT SENSE A SOURCE OF LEGAL PROTECTION FOR THE "RIGHTS" ENUMERATED
THEREIN.
/4/ THE BORAK CASE IS AN ESPECIALLY CLEAR EXAMPLE OF THE EXERCISE
OF FEDERAL JUDICIAL POWER TO ACCORD DAMAGES AS AN APPROPRIATE REMEDY IN
THE ABSENCE OF ANY EXPRESS STATUTORY AUTHORIZATION OF A FEDERAL CAUSE
OF ACTION. THERE WE "IMPLIED"-- FROM WHAT CAN ONLY BE CHARACTERIZED AS
AN "EXCLUSIVELY PROCEDURAL PROVISION" AFFORDING ACCESS TO A FEDERAL
FORUM, CF. TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, 462-463
(1957) (FRANKFURTER, J., DISSENTING)-- A PRIVATE CAUSE OF ACTION FOR
DAMAGES FOR VIOLATION OF SEC. 14(A) OF THE SECURITIES EXCHANGE ACT OF
1934, 48 STAT. 895, 15 U.S.C. 78NA). SEE SEC. 27, 48 STAT. 902, 15
U.S.C. 78AA. WE DID SO IN AN AREA WHERE FEDERAL REGULATION HAS BEEN
SINGULARLY COMPREHENSIVE AND ELABORATE ADMINISTRATIVE ENFORCEMENT
MACHINERY HAD BEEN PROVIDED. THE EXERCISE OF JUDICIAL POWER INVOLVED
IN BORAK SIMPLY CANNOT BE JUSTIFIED IN TERMS OF STATUTORY CONSTRUCTION,
SEE HILL, CONSTITUTIONAL REMEDIES, 69 COL.L.REV. 1109, 1120-1121
(1969); NOR DID THE BORAK COURT PURPORT TO DO SO. SEE BORAK, SUPRA, AT
432-434. THE NOTION OF "IMPLYING" A REMEDY, THEREFORE, AS APPLIED TO
CASES LIKE BORAK, CAN ONLY REFER TO A PROCESS WHEREBY THE FEDERAL
JUDICIARY EXERCISES A CHOICE AMONG TRADITIONALLY AVAILABLE JUDICIAL
REMEDIES ACCORDING TO REASONS RELATED TO THE SUBSTANTIVE SOCIAL POLICY
EMBODIED IN AN ACT OF POSITIVE LAW. SEE IBID., AND BELL V. HOOD,
SUPRA, AT 684.
/5/ WITH REGARD TO A COURT'S AUTHORITY TO GRANT AN EQUITABLE
REMEDY, THE LINE BETWEEN "SUBJECT MATTER" JURISDICTION AND REMEDIAL
POWERS HAD UNDOUBTEDLY BEEN OBSCURED BY THE FACT THAT HISTORICALLY THE
"SYSTEM OF EQUITY 'DERIVED ITS DOCTRINES, AS WELL AS ITS POWERS, FROM
ITS MODE OF GIVING RELIEF.'" SEE GUARANTY TRUST CO. V. YORK, SUPRA, AT
105, QUOTING C. LANGDELL, SUMMARY OF EQUITY PLEADING XXVII (1877).
PERHAPS THIS FACT ALONE ACCOUNTS FOR THE SUGGESTION SOMETIMES MADE THAT
A COURT'S POWER TO ENJOIN INVASION OF CONSTITUTIONALLY PROTECTED
INTERESTS DERIVES DIRECTLY FROM THE CONSTITUTION. SEE BELL V. HOOD, 71
F.SUPP. 813, 819 (SD CAL. 1947).
/6/ CHIEF JUDGE LUMBARD'S OPINION FOR THE COURT OF APPEALS IN THE
INSTANT CASE IS, AS I HAVE NOTED, IN ACCORD WITH THIS CONCLUSION:
"THUS, EVEN IF THE CONSTITUTION ITSELF DOES NOT GIVE RISE TO AN
INHERENT INJUNCTIVE POWER TO PREVENT ITS VIOLATION BY GOVERNMENTAL
OFFICIALS THERE ARE STRONG REASONS FOR INFERRING THE EXISTENCE OF THIS
POWER UNDER ANY GENERAL GRANT OF JURISDICTION TO THE FEDERAL COURTS BY
CONGRESS." 409 F.2D, AT 723.
THE DESCRIPTION OF THE REMEDY AS "INFERRED" CANNOT, OF COURSE, BE
INTENDED TO ASSIMILATE THE JUDICIAL DECISION TO ACCORD SUCH A REMEDY TO
ANY PROCESS OF STATUTORY CONSTRUCTION. RATHER, AS WITH THE CASES
CONCERNING REMEDIES, IMPLIED FROM STATUTORY SCHEMES, SEE N. 4, SUPRA,
THE DESCRIPTION OF THE REMEDY AS "INFERRED" CAN ONLY BEAR ON THE
REASONS OFFERED TO EXPLAIN A JUDICIAL DECISION TO ACCORD OR NOT TO
ACCORD A PARTICULAR REMEDY.
/7/ I EXPRESS NO VIEW ON THE GOVERNMENT'S SUGGESTION THAT
CONGRESSIONAL AUTHORITY TO SIMPLY DISCARD THE REMEDY THE COURT TODAY
AUTHORIZES MIGHT BE IN DOUBT; NOR DO I UNDERSTAND THE COURT'S OPINION
TODAY TO EXPRESS ANY VIEW ON THAT PARTICULAR QUESTION.
/8/ AND I THINK IT FOLLOWS FROM THIS POINT THAT TODAY'S DECISION
HAS LITTLE, IF INDEED ANY, BEARING ON THE QUESTION WHETHER A FEDERAL
COURT MAY PROPERLY DEVISE REMEDIES-- OTHER THAN TRADITIONALLY AVAILABLE
FORMS OF JUDICIAL RELIEF-- FOR THE PURPOSE OF ENFORCING SUBSTANTIVE
SOCIAL POLICIES EMBODIED IN CONSTITUTIONAL OR STATUTORY POLICIES.
COMPARE TODAY'S DECISION WITH MAPP V. OHIO, 367 U.S. 643 (1961), AND
WEEKS V. UNITED STATES, 232 U.S. 383 (1914). THE COURT TODAY SIMPLY
RECOGNIZES WHAT HAS LONG BEEN IMPLICIT IN OUR DECISIONS CONCERNING
EQUITABLE RELIEF AND REMEDIES IMPLIED FROM STATUTORY SCHEMES; I.E.,
THAT A COURT OF LAW VESTED WITH JURISDICTION OVER THE SUBJECT MATTER OF
A SUIT HAS THE POWER-- AND THEREFORE THE DUTY-- TO MAKE PRINCIPLED
CHOICES AMONG TRADITIONAL JUDICIAL REMEDIES. WHETHER SPECIAL
PROPHYLACTIC MEASURES-- WHICH AT LEAST ARGUABLY THE EXCLUSIONARY RULE
EXEMPLIFIES, SEE HILL, THE BILL OF RIGHTS AND THE SUPERVISORY POWER, 69
COL.L.REV. 181, 182-185 (1969)-- ARE SUPPORTABLE ON GROUNDS OTHER THAN
A COURT'S COMPETENCE TO SELECT AMONG TRADITIONAL JUDICIAL REMEDIES TO
MAKE GOOD THE WRONG DONE, CF. BELL V. HOOD, SUPRA, AT 684, IS A
SEPARATE QUESTION.
/9/ THE SAME, OF COURSE, MAY NOT BE TRUE WITH RESPECT TO OTHER TYPES
OF CONSTITUTIONALLY PROTECTED INTERESTS, AND THEREFORE THE
APPROPRIATENESS OF MONEY DAMAGES MAY WELL VARY WITH THE NATURE OF THE
PERSONAL INTEREST ASSERTED. SEE MONROE V. PAPE, 365 U.S. 167, 196 N. 5
(HARLAN, J., CONCURRING).
MR. CHIEF JUSTICE BURGER, DISSENTING.
I DISSENT FROM TODAY'S HOLDING WHICH JUDICIALLY CREATES A DAMAGE
REMEDY NOT PROVIDED FOR BY THE CONSTITUTION AND NOT ENACTED BY
CONGRESS. WE WOULD MORE SURELY PRESERVE THE IMPORTANT VALUES OF THE
DOCTRINE OF SEPARATION OF POWERS-- AND PERHAPS GET A BETTER RESULT-- BY
RECOMMENDING A SOLUTION TO THE CONGRESS AS THE BRANCH OF GOVERNMENT IN
WHICH THE CONSTITUTION HAS VESTED THE LEGISLATIVE POWER. LEGISLATION
IS THE BUSINESS OF THE CONGRESS, AND IT HAS THE FACILITIES AND
COMPETENCE FOR THAT TASK-- AS WE DO NOT. PROFESSOR THAYER, SPEAKING OF
THE LIMITS ON JUDICIAL POWER, ALBEIT IN ANOTHER CONTEXT, HAD THIS TO
SAY: /1/
"AND IF IT BE TRUE THAT THE HOLDERS OF LEGISLATIVE POWER ARE
CARELESS OR EVIL, YET THE CONSTITUTIONAL DUTY OF THE COURT REMAINS
UNTOUCHED; IT CANNOT RIGHTLY ATTEMPT TO PROTECT THE PEOPLE, BY
UNDERTAKING A FUNCTION NOT ITS OWN. ON THE OTHER HAND, BY ADHERING
RIGIDLY TO ITS OWN DUTY, THE COURT WILL HELP, AS NOTHING ELSE CAN, TO
FIX THE SPOT WHERE RESPONSIBILITY LIES, AND TO BRING DOWN ON THAT
PRECISE LOCALITY THE THUNDERBOLT OF POPULAR CONDEMNATION. . . . FOR
THAT COURSE-- THE TRUE COURSE OF JUDICIAL DUTY ALWAYS-- WILL POWERFULLY
HELP TO BRING THE PEOPLE AND THEIR REPRESENTATIVES TO A SENSE OF THEIR
OWN RESPONSIBILITY."
THIS CASE HAS SIGNIFICANCE FAR BEYOND ITS FACTS AND ITS HOLDING.
FOR MORE THAN 55 YEARS THIS COURT HAS ENFORCED A RULE UNDER WHICH
EVIDENCE OF UNDOUBTED RELIABILITY AND PROBATIVE VALUE HAS BEEN
SUPPRESSED AND EXCLUDED FROM CRIMINAL CASES WHENEVER IT WAS OBTAINED IN
VIOLATION OF THE FOURTH AMENDMENT. WEEKS V. UNITED STATES, 232 U.S.
383 (1914); BOYD V. UNITED STATES, 116 U.S. 616, 633 (1886) (DICTUM).
THIS RULE WAS EXTENDED TO THE STATES IN MAPP V. OHIO, 367 U.S. 643
(1961). /2/ THE RULE HAS RESTED ON A THEORY THAT SUPPRESSION OF
EVIDENCE IN THESE CIRCUMSTANCES WAS IMPERATIVE TO DETER LAW ENFORCEMENT
AUTHORITIES FROM USING IMPROPER METHODS TO OBTAIN EVIDENCE.
THE DETERRENCE THEORY UNDERLYING THE SUPPRESSION DOCTRINE, OR
EXCLUSIONARY RULE, HAS A CERTAIN APPEAL IN SPITE OF THE HIGH PRICE
SOCIETY PAYS FOR SUCH A DRASTIC REMEDY. NOTWITHSTANDING ITS
PLAUSIBILITY, MANY JUDGES AND LAWYERS AND SOME OF OUR MOST
DISTINGUISHED LEGAL SCHOLARS HAVE NEVER QUITE BEEN ABLE TO ESCAPE THE
FORCE OF CARDOZO'S STATEMENT OF THE DOCTRINE'S ANOMALOUS RESULT:
"THE CRIMINAL IS TO GO FREE BECAUSE THE CONSTABLE HAS BLUNDERED. .
. . A ROOM IS SEARCHED AGAINST THE LAW, AND THE BODY OF A MURDERED MAN
IS FOUND. . . . THE PRIVACY OF THE HOME HAS BEEN INFRINGED, AND THE
MURDERER GOES FREE." PEOPLE V. DEFORE, 242 N.Y. 13, 21, 23-24, 150
N.E. 585, 587, 588 (1926). /3/
THE PLURALITY OPINION IN IRVINE V. CALIFORNIA, 347 U.S. 128, 136
(1954), CATALOGUED THE DOCTRINE'S DEFECTS:
"REJECTION OF THE EVIDENCE DOES NOTHING TO PUNISH THE WRONG-DOING
OFFICIAL, WHILE IT MAY, AND LIKELY WILL, RELEASE THE WRONG-DOING
DEFENDANT. IT DEPRIVES SOCIETY OF ITS REMEDY AGAINST ONE LAWBREAKER
BECAUSE HE HAS BEEN PURSUED BY ANOTHER. IT PROTECTS ONE AGAINST WHOM
INCRIMINATING EVIDENCE IS DISCOVERED, BUT DOES NOTHING TO PROTECT
INNOCENT PERSONS WHO ARE THE VICTIMS OF ILLEGAL BUT FRUITLESS
SEARCHES."
FROM TIME TO TIME MEMBERS OF THE COURT, RECOGNIZING THE VALIDITY OF
THESE PROTESTS, HAVE ARTICULATED VARYING ALTERNATIVE JUSTIFICATIONS FOR
THE SUPPRESSION OF IMPORTANT EVIDENCE IN A CRIMINAL TRIAL. UNDER ONE
OF THESE ALTERNATIVE THEORIES THE RULE'S FOUNDATION IS SHIFTED TO THE
"SPORTING CONTEST" THESIS THAT THE GOVERNMENT MUST "PLAY THE GAME
FAIRLY" AND CANNOT BE ALLOWED TO PROFIT FROM ITS OWN ILLEGAL ACTS.
OLMSTEAD V. UNITED STATES, 277 U.S. 438, 469, 471 (1928) (DISSENTING
OPINIONS); SEE TERRY V. OHIO, 392 U.S. 1, 13 (1968). BUT THE
EXCLUSIONARY RULE DOES NOT INELUCTABLY FLOW FROM A DESIRE TO ENSURE
THAT GOVERNMENT PLAYS THE "GAME" ACCORDING TO THE RULES. IF AN
EFFECTIVE ALTERNATIVE REMEDY IS AVAILABLE, CONCERN FOR OFFICIAL
OBSERVANCE OF THE LAW DOES NOT REQUIRE ADHERENCE TO THE EXCLUSIONARY
RULE. NOR IS IT EASY TO UNDERSTAND HOW A COURT CAN BE THOUGHT TO
ENDORSE A VIOLATION OF THE FOURTH AMENDMENT BY ALLOWING ILLEGALLY
SEIZED EVIDENCE TO BE INTRODUCED AGAINST A DEFENDANT IF AN EFFECTIVE
REMEDY IS PROVIDED AGAINST THE GOVERNMENT.
THE EXCLUSIONARY RULE HAS ALSO BEEN JUSTIFIED ON THE THEORY THAT THE
RELATIONSHIP BETWEEN THE SELF-INCRIMINATION CLAUSE OF THE FIFTH
AMENDMENT AND THE FOURTH AMENDMENT REQUIRES THE SUPPRESSION OF EVIDENCE
SEIZED IN VIOLATION OF THE LATTER. BOYD V. UNITED STATES, SUPRA, AT
633 (DICTUM); WOLF V. COLORADO, 338 U.S. 25, 47, 48 (1949) (RUTLEDGE,
J., DISSENTING); MAPP V. OHIO, SUPRA, AT 661-666 (BLACK, J.,
CONCURRING).
EVEN IGNORING, HOWEVER, THE DECISIONS OF THIS COURT THAT HAVE HELD
THAT THE FIFTH AMENDMENT APPLIES ONLY TO "TESTIMONIAL" DISCLOSURES,
UNITED STATES V. WADE, 388 U.S. 218, 221-223 (1967); SCHMERBER V.
CALIFORNIA, 384 U.S. 757, 764 AND N. 8 (1966), IT SEEMS CLEAR THAT THE
SELF-INCRIMINATION CLAUSE DOES NOT PROTECT A PERSON FROM THE SEIZURE OF
EVIDENCE THAT IS INCRIMINATING. IT PROTECTS A PERSON ONLY FROM BEING
THE CONDUIT BY WHICH THE POLICE ACQUIRE EVIDENCE. MR. JUSTICE HOLMES
ONCE PUT IT SUCCINCTLY, "A PARTY IS PRIVILEGED FROM PRODUCING THE
EVIDENCE BUT NOT FROM ITS PRODUCTION." JOHNSON V. UNITED STATES, 228
U.S. 457, 458 (1913).
IT IS CLEAR, HOWEVER, THAT NEITHER OF THESE THEORIES UNDERGIRDS THE
DECIDED CASES IN THIS COURT. RATHER THE EXCLUSIONARY RULE HAS RESTED
ON THE DETERRENT RATIONALE-- THE HOPE THAT LAW ENFORCEMENT OFFICIALS
WOULD BE DETERRED FROM UNLAWFUL SEARCHES AND SEIZURES IF THE ILLEGALLY
SEIZED, ALBEIT TRUSTWORTHY, EVIDENCE WAS SUPPRESSED OFTEN ENOUGH AND
THE COURTS PERSISTENTLY ENOUGH DEPRIVED THEM OF ANY BENEFITS THEY MIGHT
HAVE GAINED FROM THEIR ILLEGAL CONDUCT.
THIS EVIDENTIARY RULE IS UNIQUE TO AMERICAN JURISPRUDENCE. ALTHOUGH
THE ENGLISH AND CANADIAN LEGAL SYSTEMS ARE HIGHLY REGARDED, NEITHER HAS
ADOPTED OUR RULE. SEE MARTIN, THE EXCLUSIONARY RULE UNDER FOREIGN LAW-
CANADA, 52 J.CRIM.L.C.& P.S. 271, 272 (1961); WILLIAMS, THE
EXCLUSIONARY RULE UNDER FOREIGN LAW-- ENGLAND, 52 J.CRIM.L.C.& P.S. 272
(1961).
I DO NOT QUESTION THE NEED FOR SOME REMEDY TO GIVE MEANING AND TEETH
TO THE CONSTITUTIONAL GUARANTEES AGAINST UNLAWFUL CONDUCT BY GOVERNMENT
OFFICIALS. WITHOUT SOME EFFECTIVE SANCTION, THESE PROTECTIONS WOULD
CONSTITUTE LITTLE MORE THAN RHETORIC. BEYOND DOUBT THE CONDUCT OF SOME
OFFICIALS REQUIRES SANCTIONS AS CASES LIKE IRVINE INDICATE. BUT THE
HOPE THAT THIS OBJECTIVE COULD BE ACCOMPLISHED BY THE EXCLUSION OF
RELIABLE EVIDENCE FROM CRIMINAL TRIALS WAS HARDLY MORE THAN A WISTFUL
DREAM. ALTHOUGH I WOULD HESITATE TO ABANDON IT UNTIL SOME MEANINGFUL
SUBSTITUTE IS DEVELOPED, THE HISTORY OF THE SUPPRESSION DOCTRINE
DEMONSTRATES THAT IT IS BOTH CONCEPTUALLY STERILE AND PRACTICALLY
INEFFECTIVE IN ACCOMPLISHING ITS STATED OBJECTIVE. THIS IS ILLUSTRATED
BY THE PARADOX THAT AN UNLAWFUL ACT AGAINST A TOTALLY INNOCENT PERSON--
SUCH AS PETITIONER CLAIMS TO BE-- HAS BEEN LEFT WITHOUT AN EFFECTIVE
REMEDY, AND HENCE THE COURT FINDS IT NECESSARY NOW-- 55 YEARS LATER--
TO CONSTRUCT A REMEDY OF ITS OWN.
SOME CLEAR DEMONSTRATION OF THE BENEFITS AND EFFECTIVENESS OF THE
EXCLUSIONARY RULE IS REQUIRED TO JUSTIFY IT IN VIEW OF THE HIGH PRICE
IT EXTRACTS FROM SOCIETY-- THE RELEASE OF COUNTLESS GUILTY CRIMINALS.
SEE ALLEN, FEDERALISM AND THE FOURTH AMENDMENT: A REQUIEM FOR WOLF,
1961 SUP.CT.REV. 1, 33 N. 172. BUT THERE IS NO EMPIRICAL EVIDENCE TO
SUPPORT THE CLAIM THAT THE RULE ACTUALLY DETERS ILLEGAL CONDUCT OF LAW
ENFORCEMENT OFFICIALS. OAKS, STUDYING THE EXCLUSIONARY RULE IN SEARCH
AND SEIZURE, 37 U.CHI.L.REV. 665, 667 (1970).
THERE ARE SEVERAL REASONS FOR THIS FAILURE. THE RULE DOES NOT APPLY
ANY DIRECT SANCTION TO THE INDIVIDUAL OFFICIAL WHOSE ILLEGAL CONDUCT
RESULTS IN THE EXCLUSION OF EVIDENCE IN A CRIMINAL TRIAL. WITH RARE
EXCEPTIONS LAW ENFORCEMENT AGENCIES DO NOT IMPOSE DIRECT SANCTIONS ON
THE INDIVIDUAL OFFICER RESPONSIBLE FOR A PARTICULAR JUDICIAL
APPLICATION OF THE SUPPRESSION DOCTRINE. ID., AT 710. THUS THERE IS
VIRTUALLY NOTHING DONE TO BRING ABOUT A CHANGE IN HIS PRACTICES. THE
IMMEDIATE SANCTION TRIGGERED BY THE APPLICATION OF THE RULE IS VISITED
UPON THE PROSECUTOR WHOSE CASE AGAINST A CRIMINAL IS EITHER WEAKENED OR
DESTROYED. THE DOCTRINE DEPRIVES THE POLICE IN NO REAL SENSE; EXCEPT
THAT APPREHENDING WRONGDOERS IS THEIR BUSINESS, POLICE HAVE NO MORE
STAKE IN SUCCESSFUL PROSECUTIONS THAN PROSECUTORS OR THE PUBLIC.
THE SUPPRESSION DOCTRINE VAGUELY ASSUMES THAT LAW ENFORCEMENT IS A
MONOLITHIC GOVERNMENTAL ENTERPRISE. FOR EXAMPLE, THE DISSENTERS IN
WOLF V. COLORADO, SUPRA, AT 44, ARGUED THAT:
"ONLY BY EXCLUSION CAN WE IMPRESS UPON THE ZEALOUS PROSECUTOR THAT
VIOLATION OF THE CONSTITUTION WILL DO HIM NO GOOD. AND ONLY WHEN THAT
POINT IS DRIVEN HOME CAN THE PROSECUTOR BE EXPECTED TO EMPHASIZE THE
IMPORTANCE OF OBSERVING THE CONSTITUTIONAL DEMANDS IN HIS INSTRUCTIONS
TO THE POLICE."
BUT THE PROSECUTOR WHO LOSES HIS CASE BECAUSE OF POLICE MISCONDUCT
IS NOT AN OFFICIAL IN THE POLICE DEPARTMENT; HE CAN RARELY SET IN
MOTION ANY CORRECTIVE ACTION OR ADMINISTRATIVE PENALTIES. MOREOVER, HE
DOES NOT HAVE CONTROL OR DIRECTION OVER POLICE PROCEDURES OR POLICE
ACTIONS THAT LEAD TO THE EXCLUSION OF EVIDENCE. IT IS THE RARE
EXCEPTION WHEN A PROSECUTOR TAKES PART IN ARRESTS, SEARCHES, OR
SEIZURES SO THAT HE CAN GUIDE POLICE ACTION.
WHATEVER EDUCATIONAL EFFECT THE RULE CONCEIVABLY MIGHT HAVE IN
THEORY IS GREATLY DIMINISHED IN FACT BY THE REALITIES OF LAW
ENFORCEMENT WORK. POLICEMEN DO NOT HAVE THE TIME, INCLINATION, OR
TRAINING TO READ AND GRASP THE NUANCES OF THE APPELLATE OPINIONS THAT
ULTIMATELY DEFINE THE STANDARDS OF CONDUCT THEY ARE TO FOLLOW. THE
ISSUES THAT THESE DECISIONS RESOLVE OFTEN ADMIT OF NEITHER EASY NOR
OBVIOUS ANSWERS, AS SHARPLY DIVIDED COURTS ON WHAT IS OR IS NOT
"REASONABLE" AMPLY DEMONSTRATE. /4/ NOR CAN JUDGES, IN ALL CANDOR,
FORGET THAT OPINIONS SOMETIMES LACK HELPFUL CLARITY.
THE PRESUMED EDUCATIONAL EFFECT OF JUDICIAL OPINIONS IS ALSO REDUCED
BY THE LONG TIME LAPSE-- OFTEN SEVERAL YEARS-- BETWEEN THE ORIGINAL
POLICE ACTION AND ITS FINAL JUDICIAL EVALUATION. GIVEN A POLICEMAN'S
PRESSING RESPONSIBILITIES, IT WOULD BE SURPRISING IF HE EVER BECOMES
AWARE OF THE FINAL RESULT AFTER SUCH A DELAY. FINALLY, THE
EXCLUSIONARY RULE'S DETERRENT IMPACT IS DILUTED BY THE FACT THAT THERE
ARE LARGE AREAS OF POLICE ACTIVITY THAT DO NOT RESULT IN CRIMINAL
PROSECUTIONS-- HENCE THE RULE HAS VIRTUALLY NO APPLICABILITY AND NO
EFFECT IN SUCH SITUATIONS. OAKS, SUPRA, AT 720-724.
TODAY'S HOLDING SEEKS TO FILL ONE OF THE GAPS OF THE SUPPRESSION
DOCTRINE-- AT THE PRICE OF IMPINGING ON THE LEGISLATIVE AND POLICY
FUNCTIONS THAT THE CONSTITUTION VESTS IN CONGRESS. NEVERTHELESS, THE
HOLDING SERVES THE USEFUL PURPOSE OF EXPOSING THE FUNDAMENTAL
WEAKNESSES OF THE SUPPRESSION DOCTRINE. SUPPRESSING UNCHALLENGED TRUTH
HAS SET GUILTY CRIMINALS FREE BUT DEMONSTRABLY HAS NEITHER DETERRED
DELIBERATE VIOLATIONS OF THE FOURTH AMENDMENT NOR DECREASED THOSE
ERRORS IN JUDGMENT THAT WILL INEVITABLY OCCUR GIVEN THE PRESSURES
INHERENT IN POLICE WORK HAVING TO DO WITH SERIOUS CRIMES.
ALTHOUGH UNFORTUNATELY INEFFECTIVE, THE EXCLUSIONARY RULE HAS
INCREASINGLY BEEN CHARACTERIZED BY A SINGLE, MONOLITHIC, AND DRASTIC
JUDICIAL RESPONSE TO ALL OFFICIAL VIOLATIONS OF LEGAL NORMS.
INADVERTENT ERRORS OF JUDGMENT THAT DO NOT WORK ANY GRAVE INJUSTICE
WILL INEVITABLY OCCUR UNDER THE PRESSURE OF POLICE WORK. THESE HONEST
MISTAKES HAVE BEEN TREATED IN THE SAME WAY AS DELIBERATE AND FLAGRANT
IRVINE-TYPE VIOLATIONS OF THE FOURTH AMENDMENT. FOR EXAMPLE, IN MILLER
V. UNITED STATES, 357 U.S. 301, 309-310 (1958), RELIABLE EVIDENCE WAS
SUPPRESSED BECAUSE OF A POLICE OFFICER'S FAILURE TO SAY A "FEW MORE
WORDS" DURING THE ARREST AND SEARCH OF A KNOWN NARCOTICS PEDDLER.
THIS COURT'S DECISION ANNOUNCED TODAY IN COOLIDGE V. NEW HAMPSHIRE,
POST, P. 443, DRAMATICALLY ILLUSTRATES THE EXTENT TO WHICH THE DOCTRINE
REPRESENTS A MECHANICALLY INFLEXIBLE RESPONSE TO WIDELY VARYING DEGREES
OF POLICE ERROR AND THE RESULTING HIGH PRICE THAT SOCIETY PAYS. I
DISSENTED IN COOLIDGE PRIMARILY BECAUSE I DO NOT BELIEVE THE FOURTH
AMENDMENT HAD BEEN VIOLATED. EVEN ON THE COURT'S CONTRARY PREMISE,
HOWEVER, WHATEVER VIOLATION OCCURRED WAS SURELY INSUFFICIENT IN NATURE
AND EXTENT TO JUSTIFY THE DRASTIC RESULT DICTATED BY THE SUPPRESSION
DOCTRINE. A FAIR TRIAL BY JURY HAS RESOLVED DOUBTS AS TO COOLIDGE'S
GUILT. BUT NOW HIS CONVICTION ON RETRIAL IS PLACED IN SERIOUS QUESTION
BY THE REMAND FOR A NEW TRIAL-- YEARS AFTER THE CRIME-- IN WHICH
EVIDENCE THAT THE NEW HAMPSHIRE COURTS FOUND RELEVANT AND RELIABLE WILL
BE WITHHELD FROM THE JURY'S CONSIDERATION. IT IS HARDLY SURPRISING
THAT SUCH RESULTS ARE VIEWED WITH INCOMPREHENSION BY NONLAWYERS IN THIS
COUNTRY AND LAWYERS, JUDGES, AND LEGAL SCHOLARS THE WORLD OVER.
FREEING EITHER A TIGER OR A MOUSE IN A SCHOOLROOM IS AN ILLEGAL ACT,
BUT NO RATIONAL PERSON WOULD SUGGEST THAT THESE TWO ACTS SHOULD BE
PUNISHED IN THE SAME WAY. FROM TIME TO TIME JUDGES HAVE OCCASION TO
PASS ON REGULATIONS GOVERNING POLICE PROCEDURES. I WONDER WHAT WOULD
BE THE JUDICIAL RESPONSE TO A POLICE ORDER AUTHORIZING "SHOOT TO KILL"
WITH RESPECT TO EVERY FUGITIVE. IT IS EASY TO PREDICT OUR COLLECTIVE
WRATH AND OUTRAGE. WE, IN COMMON WITH ALL RATIONAL MINDS, WOULD SAY
THAT THE POLICE RESPONSE MUST RELATE TO THE GRAVITY AND NEED; THAT A
"SHOOT" ORDER MIGHT CONCEIVABLY BE TOLERABLE TO PREVENT THE ESCAPE OF A
CONVICTED KILLER BUT SURELY NOT FOR A CAR THIEF, A PICKPOCKET OR A
SHOPLIFTER.
I SUBMIT THAT SOCIETY HAS AT LEAST AS MUCH RIGHT TO EXPECT
RATIONALLY GRADED RESPONSES FROM JUDGES IN PLACE OF THE UNIVERSAL
"CAPITAL PUNISHMENT" WE INFLICT ON ALL EVIDENCE WHEN POLICE ERROR IS
SHOWN IN ITS ACQUISITION. SEE ALI, MODEL CODE OF PRE-ARRAIGNMENT
PROCEDURE SEC. SS8.02(2), P. 23 (TENT. DRAFT NO. 4, 1971), REPRINTED
IN THE APPENDIX TO THIS OPINION. YET FOR OVER 55 YEARS, AND WITH
INCREASING SCOPE AND INTENSITY AS TODAY'S COOLIDGE HOLDING SHOWS, OUR
LEGAL SYSTEM HAS TREATED VASTLY DISSIMILAR CASES AS IF THEY WERE THE
SAME. OUR ADHERENCE TO THE EXCLUSIONARY RULE, OUR RESISTANCE TO
CHANGE, AND OUR REFUSAL EVEN TO ACKNOWLEDGE THE NEED FOR EFFECTIVE
ENFORCEMENT MECHANISMS BRING TO MIND HOLMES' WELL-KNOWN STATEMENT:
"IT IS REVOLTING TO HAVE NO BETTER REASON FOR A RULE OF LAW THAN
THAT SO IT WAS LAID DOWN IN THE TIME OF HENRY IV. IT IS STILL MORE
REVOLTING IF THE GROUNDS UPON WHICH IT WAS LAID DOWN HAVE VANISHED LONG
SINCE, AND THE RULE SIMPLY PERSISTS FROM BLIND IMITATION OF THE PAST."
HOLMES, THE PATH OF THE LAW, 10 HARV.L.REV. 457, 469 (1897).
IN CHARACTERIZING THE SUPPRESSION DOCTRINE AS AN ANOMALOUS AND
INEFFECTIVE MECHANISM WITH WHICH TO REGULATE LAW ENFORCEMENT, I INTEND
NO REFLECTION ON THE MOTIVATION OF THOSE MEMBERS OF THIS COURT WHO
HOPED IT WOULD BE A MEANS OF ENFORCING THE FOURTH AMENDMENT. JUDGES
CANNOT BE FAULTED FOR BEING OFFENDED BY ARRESTS, SEARCHES, AND SEIZURES
THAT VIOLATE THE BILL OF RIGHTS OR STATUTES INTENDED TO REGULATE PUBLIC
OFFICIALS. BUT WE CAN AND SHOULD BE FAULTED FOR CLINGING TO AN
UNWORKABLE AND IRRATIONAL CONCEPT OF LAW. MY CRITICISM IS THAT WE HAVE
TAKEN SO LONG TO FIND BETTER WAYS TO ACCOMPLISH THESE DESIRED
OBJECTIVES. AND THERE ARE BETTER WAYS.
INSTEAD OF CONTINUING TO ENFORCE THE SUPPRESSION DOCTRINE
INFLEXIBLY, RIGIDLY, AND MECHANICALLY, WE SHOULD VIEW IT AS ONE OF THE
EXPERIMENTAL STEPS IN THE GREAT TRADITION OF THE COMMON LAW AND
ACKNOWLEDGE ITS SHORTCOMINGS. BUT IN THE SAME SPIRIT WE SHOULD BE
PREPARED TO DISCONTINUE WHAT THE EXPERIENCE OF OVER HALF A CENTURY HAS
SHOWN NEITHER DETERS ERRANT OFFICERS NOR AFFORDS A REMEDY TO THE
TOTALLY INNOCENT VICTIMS OF OFFICIAL MISCONDUCT.
I DO NOT PROPOSE, HOWEVER, THAT WE ABANDON THE SUPPRESSION DOCTRINE
UNTIL SOME MEANINGFUL ALTERNATIVE CAN BE DEVELOPED. IN A SENSE OUR
LEGAL SYSTEM HAS BECOME THE CAPTIVE OF ITS OWN CREATION. TO OVERRULE
WEEKS AND MAPP, EVEN ASSUMING THE COURT WAS NOW PREPARED TO TAKE THAT
STEP, COULD RAISE YET NEW PROBLEMS. OBVIOUSLY THE PUBLIC INTEREST
WOULD BE POORLY SERVED IF LAW ENFORCEMENT OFFICIALS WERE SUDDENLY TO
GAIN THE IMPRESSION, HOWEVER ERRONEOUS, THAT ALL CONSTITUTIONAL
RESTRAINTS ON POLICE HAD SOMEHOW BEEN REMOVED-- THAT AN OPEN SEASON ON
"CRIMINALS" HAD BEEN DECLARED. I AM CONCERNED LEST SOME SUCH MISTAKEN
IMPRESSION MIGHT BE FOSTERED BY A FLAT OVERRULING OF THE SUPPRESSION
DOCTRINE CASES. FOR YEARS WE HAVE RELIED UPON IT AS THE EXCLUSIVE
REMEDY FOR UNLAWFUL OFFICIAL CONDUCT; IN A SENSE WE ARE IN A SITUATION
AKIN TO THE NARCOTICS ADDICT WHOSE DEPENDENCE ON DRUGS PRECLUDES ANY
DRASTIC OR IMMEDIATE WITHDRAWAL OF THE SUPPOSED PROP, REGARDLESS OF HOW
FUTILE ITS CONTINUED USE MAY BE.
REASONABLE AND EFFECTIVE SUBSTITUTES CAN BE FORMULATED IF CONGRESS
WOULD TAKE THE LEAD, AS IT DID FOR EXAMPLE IN 1946 IN THE FEDERAL TORT
CLAIMS ACT. I SEE NO INSUPERABLE OBSTACLE TO THE ELIMINATION OF THE
SUPPRESSION DOCTRINE IF CONGRESS WOULD PROVIDE SOME MEANINGFUL AND
EFFECTIVE REMEDY AGAINST UNLAWFUL CONDUCT BY GOVERNMENT OFFICIALS.
THE PROBLEMS OF BOTH ERROR AND DELIBERATE MISCONDUCT BY LAW
ENFORCEMENT OFFICIALS CALL FOR A WORKABLE REMEDY. PRIVATE DAMAGE
ACTIONS AGAINST INDIVIDUAL POLICE OFFICERS CONCEDEDLY HAVE NOT
ADEQUATELY MET THIS REQUIREMENT, AND IT WOULD BE FALLACIOUS TO ASSUME
TODAY'S WORK OF THE COURT IN CREATING A REMEDY WILL REALLY ACCOMPLISH
ITS STATED OBJECTIVE. THERE IS SOME VALIDITY TO THE CLAIMS THAT JURIES
WILL NOT RETURN VERDICTS AGAINST INDIVIDUAL OFFICERS EXCEPT IN THOSE
UNUSUAL CASES WHERE THE VIOLATION HAS BEEN FLAGRANT OR WHERE THE ERROR
HAS BEEN COMPLETE, AS IN THE ARREST OF THE WRONG PERSON OR THE SEARCH
OF THE WRONG HOUSE. THERE IS SURELY SERIOUS DOUBT, FOR EXAMPLE, THAT A
DRUG PEDDLER CAUGHT PACKAGING HIS WARES WILL BE ABLE TO AROUSE MUCH
SYMPATHY IN A JURY ON THE GROUND THAT THE POLICE OFFICER DID NOT
ANNOUNCE HIS IDENTITY AND PURPOSE FULLY OR BECAUSE HE FAILED TO UTTER A
"FEW MORE WORDS." SEE MILLER V. UNITED STATES, SUPRA. JURORS MAY WELL
REFUSE TO PENALIZE A POLICE OFFICER AT THE BEHEST OF A PERSON THEY
BELIEVE TO BE A "CRIMINAL" AND PROBABLY WILL NOT PUNISH AN OFFICER FOR
HONEST ERRORS OF JUDGMENT. IN ANY EVENT AN ACTUAL RECOVERY DEPENDS ON
FINDING NONEXEMPT ASSETS OF THE POLICE OFFICER FROM WHICH A JUDGMENT
CAN BE SATISFIED.
I CONCLUDE, THEREFORE, THAT AN ENTIRELY DIFFERENT REMEDY IS
NECESSARY BUT IT IS ONE THAT IN MY VIEW IS AS MUCH BEYOND JUDICIAL
POWER AS THE STEP THE COURT TAKES TODAY. CONGRESS SHOULD DEVELOP AN
ADMINISTRATIVE OR QUASIJUDICIAL REMEDY AGAINST THE GOVERNMENT ITSELF TO
AFFORD COMPENSATION AND RESTITUTION FOR PERSONS WHOSE FOURTH AMENDMENT
RIGHTS HAVE BEEN VIOLATED. THE VENERABLE DOCTRINE OF RESPONDEAT
SUPERIOR IN OUR TORT LAW PROVIDES AN ENTIRELY APPROPRIATE CONCEPTUAL
BASIS FOR THIS REMEDY. IF, FOR EXAMPLE A SECURITY GUARD PRIVATELY
EMPLOYED BY A DEPARTMENT STORE COMMITS AN ASSAULT OR OTHER TORT ON A
CUSTOMER SUCH AS AN IMPROPER SEARCH, THE VICTIM HAS A SIMPLE AND
OBVIOUS REMEDY-- AN ACTION FOR MONEY DAMAGES AGAINST THE GUARD'S
EMPLOYER, THE DEPARTMENT STORE. W. PROSSER, THE LAW OF TORST SEC. 68,
PP. 470-480 (3D ED. 1964). /5/ SUCH A STATUTORY SCHEME WOULD HAVE THE
ADDED ADVANTAGE OF PROVIDING SOME REMEDY TO THE COMPLETELY INNOCENT
PERSONS WHO ARE SOMETIMES THE VICTIMS OF ILLEGAL POLICE CONDUCT--
SOMETHING THAT THE SUPPRESSION DOCTRINE, OF COURSE, CAN NEVER
ACCOMPLISH.
A SIMPLE STRUCTURE WOULD SUFFICE. /6/ FOR EXAMPLE, CONGRESS COULD
ENACT A STATUTE ALONG THE FOLLOWING LINES:
(A) A WAIVER OF SOVEREIGN IMMUNITY AS TO THE ILLEGAL ACTS OF LAW
ENFORCEMENT OFFICIALS COMMITTED IN THE.PERFORMANCEOF ASSIGNED DUTIES;
(B) THE CREATION OFA CAUSEOF ACTION FOR DAMAGES SUSTAINED BY ANY
PERSON AGGRIEVED BY CONDUCT OF GOVERNMENTAL AGENTS IN VIOLATION OF THE
FOURTH AMENDMENT OR STATUTES REGULATING OFFICIAL CONDUCT;
(C) THE CREATION OF A TRIBUNAL, QUASI-JUDICIAL IN NATURE OR PERHAPS
PATTERNED AFTER THE UNITED STATES COURT OF CLAIMS, TO ADJUDICATE ALL
CLAIMS UNDER THE STATUTE;
(D) A PROVISION THAT THIS STATUTORY REMEDY IS IN LIEU OF THE
EXCLUSION OF EVIDENCE SECURED FOR USE IN CRIMINAL CASES IN VIOLATION OF
THE FOURTH AMENDMENT; AND
(E) A PROVISION DIRECTING THAT NO EVIDENCE, OTHERWISE ADMISSIBLE,
SHALL BE EXCLUDED FROM ANY CRIMINAL PROCEEDING BECAUSE OF VIOLATION OF
THE FOURTH AMENDMENT.
I DOUBT THAT LAWYERS SERVING ON SUCH A TRIBUNAL WOULD BE SWAYED
EITHER BY UNDUE SYMPATHY FOR OFFICERS OR BY THE PREJUDICE AGAINST
"CRIMINALS" THAT HAS SOMETIMES MOVED LAY JURORS TO DENY CLAIMS. IN
ADDITION TO AWARDING DAMAGES, THE RECORD OF THE POLICE CONDUCT THAT IS
CONDEMNED WOULD UNDOUBTEDLY BECOME A RELEVANT PART OF AN OFFICER'S
PERSONNEL FILE SO THAT THE NEED FOR ADDITIONAL TRAINING OR DISCIPLINARY
ACTION COULD BE IDENTIFIED OR HIS FUTURE USEFULNESS AS A PUBLIC
OFFICIAL EVALUATED. FINALLY, APPELLATE JUDICIAL REVIEW COULD BE MADE
AVAILABLE ON MUCH THE SAME BASIS THAT IT IS NOW PROVIDED AS TO THE
DISTRICT COURTS AND REGULATORY AGENCIES. THIS WOULD LEAVE TO THE
COURTS THE ULTIMATE RESPONSIBILITY FOR DETERMINING AND ARTICULATING
STANDARDS.
ONCE THE CONSTITUTIONAL VALIDITY OF SUCH A STATUTE IS ESTABLISHED,
/7/ IT CAN REASONABLY BE ASSUMED THAT THE STATES WOULD DEVELOP THEIR
OWN REMEDIAL SYSTEMS ON THE FEDERAL MODEL. INDEED THERE IS NOTHING TO
PREVENT A STATE FROM ENACTING A COMPARABLE STATUTORY SCHEME WITHOUT
WAITING FOR THE CONGRESS. STEPS ALONG THESE LINES WOULD MOVE OUR
SYSTEM TOWARD MORE RESPONSIBLE LAW ENFORCEMENT ON THE ONE HAND AND AWAY
FROM THE IRRATIONAL AND DRASTIC RESULTS OF THE SUPPRESSION DOCTRINE ON
THE OTHER. INDEPENDENT OF THE ALTERNATIVE EMBRACED IN THIS DISSENTING
OPINION, I BELIEVE THE TIME HAS COME TO RE-EXAMINE THE SCOPE OF THE
EXCLUSIONARY RULE AND CONSIDER AT LEAST SOME NARROWING OF ITS THRUST SO
AS TO ELIMINATE THE ANOMALIES IT HAS PRODUCED. IN A COUNTRY THAT
PRIDES ITSELF ON INNOVATION, INVENTIVE GENIUS, AND WILLINGNESS TO
EXPERIMENT, IT IS A PARADOX THAT WE SHOULD CLING FOR MORE THAN A HALF
CENTURY TO A LEGAL MECHANISM THAT WAS POORLY DESIGNED AND NEVER REALLY
WORKED. I CAN ONLY HOPE NOW THAT THE CONGRESS WILL MANIFEST A
WILLINGNESS TO VIEW REALISTICALLY THE HARD EVIDENCE OF THE HALF-CENTURY
HISTORY OF THE SUPPRESSION DOCTRINE REVEALING THOUSANDS OF CASES IN
WHICH THE CRIMINAL WAS SET FREE BECAUSE THE CONSTABLE BLUNDERED AND
VIRTUALLY NO EVIDENCE THAT INNOCENT VICTIMS OF POLICE ERROR-- SUCH AS
PETITIONER CLAIMS TO BE-- HAVE BEEN AFFORDED MEANINGFUL REDRESS.
/1/ J. THAYER, O. HOLMES, & F. FRANKFURTER, JOHN MARSHALL 88
(PHOENIX ED. 1967). /2/ THE COURT REACHED THE ISSUE OF APPLYING
THE WEEKS DOCTRINE TO THE STATES SUA SPONTE.
/3/ WHAT CARDOZO SUGGESTED AS AN EXAMPLE OF THE POTENTIALLY FAR
REACHING CONSEQUENCES OF THE SUPPRESSION DOCTRINE WAS ALMOST REALIZED
IN KILLOUGH V. UNITED STATES, 114 U.S.APP.D.C. 305, 315 F.2D 241
(1962).
/4/ FOR EXAMPLE, IN A CASE ARISING UNDER MAPP, SUPRA, STATE JUDGES
AT EVERY LEVEL OF THE STATE JUDICIARY MAY FIND THE POLICE CONDUCT
PROPER. ON FEDERAL HABEAS CORPUS A DISTRICT JUDGE AND A COURT OF
APPEALS MIGHT AGREE. YET, IN THESE CIRCUMSTANCES, THIS COURT,
REVIEWING THE CASE AS MUCH AS 10 YEARS LATER, MIGHT REVERSE BY A NARROW
MARGIN. IN THESE CIRCUMSTANCES IT IS DIFFICULT TO CONCLUDE THAT THE
POLICEMAN HAS VIOLATED SOME RULE THAT HE SHOULD HAVE KNOWN WAS A
RESTRICTION ON HIS AUTHORITY.
/5/ DAMAGE VERDICTS FOR SUCH ACTS ARE OFTEN SUFFICIENT IN SIZE TO
PROVIDE AN EFFECTIVE DETERRENT AND STIMULATE EMPLOYERS TO CORRECTIVE
ACTION.
/6/ ELECTRONIC EAVESDROPPING PRESENTS SPECIAL PROBLEMS. SEE 18
U.S.C. 2510-2520 (1964 ED., SUPP. V).
/7/ ANY SUCH LEGISLATION SHOULD EMPHASIZE THE INTERDEPENDENCE
BETWEEN THE WAIVER OF SOVEREIGN IMMUNITY AND THE ELIMINATION OF THE
JUDICIALLY CREATED EXCLUSIONARY RULE SO THAT IF THE LEGISLATIVE
DETERMINATION TO REPUDIATE THE EXCLUSIONARY RULE FALLS, THE ENTIRE
STATUTORY SCHEME WOULD FALL.
APPENDIX TO OPINION OF BURGER, C. J., DISSENTING
IT IS INTERESTING TO NOTE THAT STUDIES OVER A PERIOD OF YEARS LED
THE AMERICAN LAW INSTITUTE TO PROPOSE THE FOLLOWING IN ITS TENTATIVE
DRAFT OF A MODEL PRE-ARRAIGNMENT CODE:
"(2) DETERMINATION. UNLESS OTHERWISE REQUIRED BY THE
CONSTITUTION OF THE UNITED STATES OR OF THIS STATE, A MOTION TO
SUPPRESS EVIDENCE BASED UPON A VIOLATION OF ANY OF THE PROVISIONS
OF THIS CODE SHALL BE GRANTED ONLY IF THE COURT FINDS THAT SUCH
VIOLATION WAS SUBSTANTIAL. IN DETERMINING WHETHER A VIOLATION IS
SUBSTANTIAL THE COURT SHALL CONSIDER ALL THE CIRCUMSTANCES,
INCLUDING:
"(A) THE IMPORTANCE OF THE PARTICULAR INTEREST VIOLATED;
"(B) THE EXTENT OF DEVIATION FROM LAWFUL CONDUCT;
"(C) THE EXTENT TO WHICH THE VIOLATION WAS WILLFUL;
"(D) THE EXTENT TO WHICH PRIVACY WAS INVADED;
"(E) THE EXTENT TO WHICH EXCLUSION WILL TEND TO PREVENT VIOLATIONS OF
THIS CODE;
"(F) WHETHER, BUT FOR THE VIOLATION, THE THINGS SEIZED WOULD
HAVE BEEN DISCOVERED; AND
"(G) THE EXTENT TO WHICH THE VIOLATION PREJUDICED THE MOVING
PARTY'S ABILITY TO SUPPORT HIS MOTION, OR TO DEFEND HIMSELF IN
THE PROCEEDING IN WHICH THE THINGS SEIZED ARE SOUGHT TO BE
OFFERED IN EVIDENCE AGAINST HIM.
"(3) FRUITS OF PRIOR UNLAWFUL SEARCH. IF A SEARCH OR SEIZURE
IS CARRIED OUT IN SUCH A MANNER THAT THINGS SEIZED IN THE COURSE
OF THE SEARCH WOULD BE SUBJECT TO A MOTION TO SUPPRESS UNDER
SUBSECTION (1), AND IF AS A RESULT OF SUCH SEIZURE OTHER EVIDENCE
IS DISCOVERED SUBSEQUENTLY AND OFFERED AGAINST A DEFENDANT, SUCH
EVIDENCE SHALL BE SUBJECT TO A MOTION TO SUPPRESS UNLESS THE
PROSECUTION ESTABLISHES THAT SUCH EVIDENCE WOULD PROBABLY HAVE
BEEN DISCOVERED BY LAW ENFORCEMENT AUTHORITIES IRRESPECTIVE OF
SUCH SEARCH OR SEIZURE, AND THE COURT FINDS THAT EXCLUSION OF
SUCH EVIDENCE IS NOT NECESSARY TO DETER VIOLATIONS OF THIS
CODE."
ALI, MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE SECS. SS8.02(2),(3),
PP. 23-24 (TENT. DRAFT NO. 4, 1971).
THE REPORTERS' VIEWS ON THE EXCLUSIONARY RULE ARE ALSO REFLECTED IN
THEIR COMMENT ON THE PROPOSED SECTION:
"THE REPORTERS WISH TO EMPHASIZE THAT THEY ARE NOT, AS A
MATTER
OF POLICY, WEDDED TO THE EXCLUSIONARY RULE AS THE SOLE OR BEST
MEANS OF ENFORCING THE FOURTH AMENDMENT. SEE OAKS, STUDYING THE
EXCLUSIONARY RULE IN SEARCH AND SEIZURE, 37 U.OF CHI.L.REV. 665
(1970). PARAGRAPH (2) EMBODIES WHAT THE REPORTERS HOPE IS A MORE
FLEXIBLE APPROACH TO THE PROBLEM, SUBJECT OF COURSE TO
CONSTITUTIONAL REQUIREMENTS." ID., COMMENT, AT 26-27.
THIS IS BUT ONE OF MANY EXPRESSIONS OF DISENCHANTMENT WITH THE
EXCLUSIONARY RULE; SEE ALSO:
1. BARRETT, EXCLUSION OF EVIDENCE OBTAINED BY ILLEGAL SEARCHES-- A
COMMENT ON PEOPLE VS. CAHAN, 43 CALIF.L.REV. 565 (1955).
2. BURNS, MAPP V. OHIO: AN ALL-AMERICAN MISTAKE, 19 DEPAUL L.REV.
80 (1969).
3. FRIENDLY, THE BILL OF RIGHTS AS A CODE OF CRIMINAL PROCEDURE, 53
CALIF.L.REV. 929, 951-954 (1965).
4. F. INBAU, J. THOMPSON, & C. SOWLE, CASES AND COMMENTS ON
CRIMINAL JUSTICE: CRIMINAL LAW ADMINISTRATION 1-84 (3D ED. 1968).
5. LAFAVE, IMPROVING POLICE PERFORMANCE THROUGH THE EXCLUSIONARY
RULE (PTS. 1 & 2), 30 MO.L.REV. 391, 566 (1965).
6. LAFAVE & REMINGTON, CONTROLLING THE POLICE: THE JUDGE'S ROLE IN
MAKING AND REVIEWING LAW ENFORCEMENT DECISIONS, 63 MICH.L.REV. 987
(1965).
7. N. MORRIS & G. HAWKINS, THE HONEST POLITICIAN'S GUIDE TO CRIME
CONTROL 101 (1970).
8. OAKS, STUDYING THE EXCLUSIONARY RULE IN SEARCH AND SEIZURE, 37
U.CHI.L.REV. 665 (1970).
9. PLUMB, ILLEGAL ENFORCEMENT OF THE LAW, 24 CORNELL L.Q. 337
(1939).
10. SCHAEFER, THE FOURTEENTH AMENDMENT AND SANCTITY OF THE PERSON,
64 NW.U.L.REV. 1 (1969).
11. WAITE, JUDGES AND THE CRIME BURDEN, 54 MICH.L.REV. 169
(1955).
12. WAITE, EVIDENCE-- POLICE REGULATION BY RULES OF EVIDENCE, 42
MICH.L.REV. 679 (1944).
13. WIGMORE, USING EVIDENCE OBTAINED BY ILLEGAL SEARCH AND SEIZURE,
8 A.B.A.J. 479 (1922).
14. 8 J.WIGMORE, EVIDENCE 2184A (MCNAUGHTON REV. 1961).
MR. JUSTICE BLACK, DISSENTING.
IN MY OPINION FOR THE COURT IN BELL V. HOOD, 327 U.S. 678 (1946), WE
DID AS THE COURT STATES, RESERVE THE QUESTION WHETHER AN UNREASONABLE
SEARCH MADE BY A FEDERAL OFFICER IN VIOLATION OF THE FOURTH AMENDMENT
GIVES THE SUBJECT OF THE SEARCH A FEDERAL CAUSE OF ACTION FOR DAMAGES
AGAINST THE OFFICERS MAKING THE SEARCH. THERE CAN BE NO DOUBT THAT
CONGRESS COULD CREATE A FEDERAL CAUSE OF ACTION FOR DAMAGES FOR AN
UNREASONABLE SEARCH IN VIOLATION OF THE FOURTH AMENDMENT. ALTHOUGH
CONGRESS HAS CREATED SUCH A FEDERAL CAUSE OF ACTION AGAINST STATE
OFFICIALS ACTING UNDER COLOR OF STATE LAW, /1/ IT HAS NEVER CREATED
SUCH A CAUSE OF ACTION AGAINST FEDERAL OFFICIALS. IF IT WANTED TO DO
SO, CONGRESS COULD, OF COURSE, CREATE A REMEDY AGAINST FEDERAL
OFFICIALS WHO VIOLATE THE FOURTH AMENDMENT IN THE PERFORMANCE OF THEIR
DUTIES. BUT THE POINT OF THIS CASE AND THE FATAL WEAKNESS IN THE
COURT'S JUDGMENT IS THAT NEITHER CONGRESS NOR THE STATE OF NEW YORK HAS
ENACTED LEGISLATION CREATING SUCH A RIGHT OF ACTION. FOR US TO DO SO
IS, IN MY JUDGMENT, AN EXERCISE OF POWER THAT THE CONSTITUTION DOES NOT
GIVE US.
EVEN IF WE HAD THE LEGISLATIVE POWER TO CREATE A REMEDY, THERE ARE
MANY REASONS WHY WE SHOULD DECLINE TO CREATE A CAUSE OF ACTION WHERE
NONE HAS EXISTED SINCE THE FORMATION OF OUR GOVERNMENT. THE COURTS OF
THE UNITED STATES AS WELL AS THOSE OF THE STATES ARE CHOKED WITH
LAWSUITS. THE NUMBER OF CASES ON THE DOCKET OF THIS COURT HAVE REACHED
AN UNPRECEDENTED VOLUME IN RECENT YEARS. A MAJORITY OF THESE CASES ARE
BROUGHT BY CITIZENS WITH SUBSTANTIAL COMPLAINTS-- PERSONS WHO ARE
PHYSICALLY OR ECONOMICALLY INJURED BY TORTS OR FRAUDS OR GOVERNMENTAL
INFRINGEMENT OF THEIR RIGHTS; PERSONS WHO HAVE BEEN UNJUSTLY DEPRIVED
OF THEIR LIBERTY OR THEIR PROPERTY; AND PERSONS WHO HAVE NOT YET
RECEIVED THE EQUAL OPPORTUNITY IN EDUCATION, EMPLOYMENT, AND PURSUIT OF
HAPPINESS THAT WAS THE DREAM OF OUR FOREFATHERS. UNFORTUNATELY, THERE
HAVE ALSO BEEN A GROWING NUMBER OF FRIVOLOUS LAWSUITS, PARTICULARLY
ACTIONS FOR DAMAGES AGAINST LAW ENFORCEMENT OFFICERS WHOSE CONDUCT HAS
BEEN JUDICIALLY SANCTIONED BY STATE TRIAL AND APPELLATE COURTS AND IN
MANY INSTANCES EVEN BY THIS COURT. MY FELLOW JUSTICES ON THIS COURT
AND OUR BRETHREN THROUGHOUT THE FEDERAL JUDICIARY KNOW ONLY TOO WELL
THE TIME-CONSUMING TASK OF CONSCIENTIOUSLY PORING OVER HUNDREDS OF
THOUSANDS OF PAGES OF FACTUAL ALLEGATIONS OF MISCONDUCT BY POLICE,
JUDICIAL, AND CORRECTIONS OFFICIALS. OF COURSE, THERE ARE INSTANCES OF
LEGITIMATE GRIEVANCES, BUT LEGISLATORS MIGHT WELL DESIRE TO DEVOTE
JUDICIAL RESOURCES TO OTHER PROBLEMS OF A MORE SERIOUS NATURE.
WE SIT AT THE TOP OF A JUDICIAL SYSTEM ACCUSED BY SOME OF NEARING
THE POINT OF COLLAPSE. MANY CRIMINAL DEFENDANTS DO NOT RECEIVE SPEEDY
TRIALS AND NEITHER SOCIETY NOR THE ACCUSED ARE ASSURED OF JUSTICE WHEN
INORDINATE DELAYS OCCUR. CITIZENS MUST WAIT YEARS TO LITIGATE THEIR
PRIVATE CIVIL SUITS. SUBSTANTIAL CHANGES IN CORRECTIONAL AND PAROLE
SYSTEMS DEMAND THE ATTENTION OF THE LAWMAKERS AND THE JUDICIARY. IF I
WERE A LEGISLATOR I MIGHT WELL FIND THESE AND OTHER NEEDS SO PRESSING
AS TO MAKE ME BELIEVE THAT THE RESOURCES OF LAWYERS AND JUDGES SHOULD
BE DEVOTED TO THEM RATHER THAN TO CIVIL DAMAGE ACTIONS AGAINST OFFICERS
WHO GENERALLY STRIVE TO PERFORM WITHIN CONSTITUTIONAL BOUNDS. THERE IS
ALSO A REAL DANGER THAT SUCH SUITS MIGHT DETER OFFICIALS FROM THE
PROPER AND HONEST PERFORMANCE OF THEIR DUTIES.
ALL OF THESE CONSIDERATIONS MAKE IMPERATIVE CAREFUL STUDY AND
WEIGHING OF THE ARGUMENTS BOTH FOR AND AGAINST THE CREATION OF SUCH A
REMEDY UNDER THE FOURTH AMENDMENT. I WOULD HAVE GREAT DIFFICULTY FOR
MYSELF IN RESOLVING THE COMPETING POLICIES, GOALS, AND PRIORITIES IN
THE USE OF RESOURCES, IF I THOUGHT IT WERE MY JOB TO RESOLVE THOSE
QUESTIONS. BUT THAT IS NOT MY TASK. THE TASK OF EVALUATING THE PROS
AND CONS OF CREATING JUDICIAL REMEDIES FOR PARTICULAR WRONGS IS A
MATTER FOR CONGRESS AND THE LEGISLATURES OF THE STATES. CONGRESS HAS
NOT PROVIDED THAT ANY FEDERAL COURT CAN ENTERTAIN A SUIT AGAINST A
FEDERAL OFFICER FOR VIOLATIONS OF FOURTH AMENDMENT RIGHTS OCCURRING IN
THE PERFORMANCE OF HIS DUTIES. A STRONG INFERENCE CAN BE DRAWN FROM
CREATION OF SUCH ACTIONS AGAINST STATE OFFICIALS THAT CONGRESS DOES NOT
DESIRE TO PERMIT SUCH SUITS AGAINST FEDERAL OFFICIALS. SHOULD THE TIME
COME WHEN CONGRESS DESIRES SUCH LAWSUITS, IT HAS BEFORE IT A MODEL OF
VALID LEGISLATION, 42 U.S.C. 1983, TO CREATE A DAMAGE REMEDY AGAINST
FEDERAL OFFICERS. CASES COULD BE CITED TO SUPPORT THE LEGAL
PROPOSITION WHICH I ASSERT, BUT IT SEEMS TO ME TO BE A MATTER OF COMMON
UNDERSTANDING THAT THE BUSINESS OF THE JUDICIARY IS TO INTERPRET THE
LAWS AND NOT TO MAKE THEM.
I DISSENT.
/1/ "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." REV. STAT. SEC. 1979,
42 U.S.C. 1983.
MR. JUSTICE BLACKMUN, DISSENTING.
I, TOO, DISSENT. I DO SO LARGELY FOR THE REASONS EXPRESSED IN CHIEF
JUDGE LUMBARD'S THOUGHTFUL AND SCHOLARLY OPINION FOR THE COURT OF
APPEALS. BUT I ALSO FEEL THAT THE JUDICIAL LEGISLATION, WHICH THE
COURT BY ITS OPINION TODAY CONCEDEDLY IS EFFECTUATING, OPENS THE DOOR
FOR ANOTHER AVALANCHE OF NEW FEDERAL CASES. WHENEVER A SUSPECT
IMAGINES, OR CHOOSES TO ASSERT, THAT A FOURTH AMENDMENT RIGHT HAS BEEN
VIOLATED, HE WILL NOW IMMEDIATELY SUE THE FEDERAL OFFICER IN FEDERAL
COURT. THIS WILL TEND TO STULTIFY PROPER LAW ENFORCEMENT AND TO MAKE
THE DAY'S LABOR FOR THE HONEST AND CONSCIENTIOUS OFFICER EVEN MORE
ONEROUS AND MORE CRITICAL. WHY THE COURT MOVES IN THIS DIRECTION AT
THIS TIME OF OUR HISTORY, I DO NOT KNOW. THE FOURTH AMENDMENT WAS
ADOPTED IN 1791, AND IN ALL THE INTERVENING YEARS NEITHER THE CONGRESS
NOR THE COURT HAS SEEN FIT TO TAKE THIS STEP. I HAD THOUGHT THAT FOR
THE TRULY AGGRIEVED PERSON OTHER QUITE ADEQUATE REMEDIES HAVE ALWAYS
BEEN AVAILABLE. IF NOT, IT IS THE CONGRESS AND NOT THIS COURT THAT
SHOULD ACT.
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.
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