Burkhart v. Saxbe

• Decision Date: 21 March 1978
• Docket Number: Civ. A. No. 74-826.
• Citation: 448 F. Supp. 588
• Parties: Katherine W. BURKHART et al. v. William B. SAXBE et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

448 F. Supp. 588

Katherine W. BURKHART et al. v. William B. SAXBE et al.

Civ. A. No. 74-826.

United States District Court, E. D. Pennsylvania.

March 21, 1978.

COPYRIGHT MATERIAL OMITTED

David Rudovsky, Kairys, Rudovsky & Maguigan, Philadelphia, Pa., for plaintiffs.

Gordon W. Daiger, Atty., Sp. Litigation Section, Crim. Div., U. S. Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM OPINION AND ORDER

VanARTSDALEN, District Judge.

Presently before the court are plaintiffs' motion for partial summary judgment and defendants' cross motion for complete summary judgment. Many factual contentions are not disputed, but others will require a fact finder's determination. The procedural posture of the case, however, permits clarification of some of the prevalent legal issues at this stage of the litigation thereby establishing an appropriate foundation for the ultimate disposition of the controversy. Rule 56(d), Federal Rules of Civil Procedure.

I.

A. Factual Background

This case arises indirectly from a series of criminal and civil cases which were generated by the social turbulence of the late sixties and early seventies.¹ During the course of the discovery proceedings in Philadelphia Resistance v. John Mitchell, C.A. 71-1738 (E.D.Pa.), the parties ascertained that certain of the plaintiffs' telephone conversations were overheard by agents of the Federal Bureau of Investigation (FBI) who were at the time monitoring certain wiretaps² placed pursuant to authorization by the then Attorney General of the United States, John Mitchell.³ No prior court authorization for the wiretaps was obtained.

The plaintiffs, Burkhart, Chomsky, Gold, Portnoy and Putter were overheard during the course of the electronic surveillance of the telephone registered to one William Davidon (the Davidon tap) who was suspected of being an active member of an organization known as the East Coast Conspiracy to Save Lives (ECCSL). The plaintiffs, Gold, Portnoy and Markel⁴ were overheard during the course of the electronic surveillance of the telephone registered to the Philadelphia chapter of the Black Panther Party (the Black Panther tap).

Pursuant to information compiled through the investigative processes of the FBI and furnished to the United States Department of Justice, Attorney General Mitchell authorized the FBI to initiate and conduct, without a warrant or prior judicial approval, the two wiretaps at issue in this case. The Black Panther tap was originally authorized on June 1, 1970 and reauthorized on June 25, 1970, August 15, 1970, September 22, 1970, November 11, 1970 and finally terminated on February 10, 1971.⁵ The Davidon tap was authorized on November 6, 1970, reauthorized on December 7, 1970 and terminated on January 6, 1971.⁶

The plaintiffs were admittedly not the targets of these investigations and a review of the logs of these taps containing plaintiffs' conversations suggest that the information contained therein was not relevant to the claimed purpose of the surveillance.

The plaintiffs claim that these warrantless wiretaps violated their fourth amendment right to be secure against unreasonable searches and seizures as well as the provisions of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520. The defendants respond, inter alia, on the grounds that the wiretaps were authorized by the Attorney General for national security purposes and therefore were exempt from the provisions of Title III, and did not require prior judicial approval. Defendants further assert they are clothed with official immunity.

B. Legal background

A determination of whether the defendants' conduct was unlawful, and, even if unlawful, whether they are nonetheless immune from liability by reason of a good faith, reasonable belief that such action was not unlawful, requires an historical analysis of the state of the law during the period in question.

In 1967, the Supreme Court decided two major cases that established the limitations imposed by the fourth amendment upon the use of electronic and other technologically sophisticated listening devices by law enforcement officers in conducting investigations. The first case was Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); the second, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Berger, the petitioner was convicted of a conspiracy to bribe state officials. Agents of the district attorney's office had obtained a court authorization to plant an electronic listening device (a "bug") in the offices of two suspected co-conspirators. The authorization was based on a New York statute, § 813-a of the New York Code of Criminal Procedure. The overheard conversations were received in evidence at trial, over objection. In holding the New York statute invalid because of its overbreadth, the court ruled that authorization to conduct an unconsented entry upon another's property in order to gather evidence through a surreptitiously placed listening device, may be granted only under the "most precise and discriminate circumstances." Berger, supra, 388 U.S. at 56-57, 87 S.Ct. at 1882. The court set forth general guidelines. There must be a satisfactory showing of a particularized need for such surveillance, and of the specific type of information sought. Id. The authorization should describe with particularity the type of conversations to be overheard so as to allow the officers conducting the surveillance to ascertain when the objective has been satisfied. The authorization must be limited in time and scope, in order to protect against unlimited interference with the suspects' rights of privacy. When the objective is obtained, the surveillance must be promptly terminated. Upon completion of the surveillance, a return should be made to the authorizing official detailing the carrying out of the authorization and specifying the conversations overheard or otherwise seized. A state may not authorize an intrusive surveillance "until it has reason to believe that a specific crime has been or is being committed." Id. at 59, 87 S.Ct. at 1883.

Katz v. United States, supra, held that the fourth amendment protected against warrantless nontrespassory wiretaps as violative of a person's right of privacy. Katz involved a wiretap placed upon a public telephone. The Supreme Court ruled that the exclusionary rule precluded use of the overheard conversations at trial. Katz thus overruled the long standing rule of Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), that nontrespassory wiretapping did not violate the fourth amendment.

Critically relevant to the present case is footnote 23 to the Katz opinion, supra 389 U.S. at 358-359, 88 S.Ct. at 515, which states:

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving national security is a question not presented by this case.

See also the discussion as to "national security" and "executive branch" wiretaps in the concurring opinions of Justices Douglas and Brennan, id. 389 U.S. at 359, 88 S.Ct. 507, and the separate concurring opinion of Justice White, id. at 362, 88 S.Ct. 507.

Following the Berger and Katz decisions, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520.⁷ The statute, in substance, prohibits the interception and use or disclosure of wire or oral communications, § 2511, except where it is specifically authorized for the purpose of investigating certain classes of crimes, § 2516, and then only after full compliance with the elaborate procedures specified in § 2518. Aside from criminal penalties, any person whose wire or oral communications are intercepted, disclosed or used in violation of the Act, may recover actual damages in a civil action to be computed at not less than One Hundred Dollars ($100) a day for each day of the violation not to exceed One Thousand Dollars ($1,000), plus any punitive damages and reasonable costs and attorney's fees, § 2520. However, the defendant in any civil or criminal action brought pursuant to this or any other statute prohibiting the interception of wire or oral communications is accorded a complete defense if he acted in good faith reliance upon a court order or legislative authorization, § 2520.

Pervasive as this statute is in the area of electronic surveillance, Congress nonetheless included the following proviso regarding the President's constitutional power to utilize these investigative tools for the purposes of protecting the national security and conducting the nation's affairs, 18 U.S.C. § 2511(3):

Nothing contained in this chapter . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial, hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.

In the years following the Berger and Katz decisions and the enactment of Title III, the President, through his delegate, the Attorney General, continued the earlier prevalent practice of...