Abramson v. Mitchell, 71-1556.
| Decision Date | 08 May 1972 |
| Docket Number | No. 71-1556.,71-1556. |
| Citation | 459 F.2d 955 |
| Parties | Max ABRAMSON et al., Appellants, v. John N. MITCHELL, Attorney General of the United States, et al., Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Oscar B. Goodman, Goodman & Snyder, Las Vegas, Nev., Zweiback & Laughlin, Omaha, Neb., for appellants.
William K. Schaphorst, U. S. Atty., Omaha, Neb., for appellees.
Before Mr. Justice CLARK,* and VOGEL and LAY, Circuit Judges.
While the Complaint here is not a gem of clarity, we construe it to allege that the appellees have violated the Fourth Amendment rights of the appellants in that they have intercepted their telephone and other conversations without probable cause; that the Omnibus Crime Act, 18 U.S.C. §§ 2516-2519, is unconstitutional and that a three-judge court should be convened to decide the issue;1 and that, if in error as to this, that appellees have tapped their lines without complying with the provisions of the Act. They seek both injunctive relief and damages. The appellees answered individually and moved to dismiss the complaint asserting, inter alia, the defenses of governmental immunity and good faith reliance on the court order previously issued. The trial court thereafter dismissed the suit finding that the Judge himself had entered the order authorizing the wiretap and that the court was satisfied that the application and the order were in strict compliance with the Act; that the order was based on probable cause and that the officers' reliance on the order was in good faith. This may well be true but we believe that the trial court should have held a hearing at which the application, the order and such other relevant evidence could have been produced and a decision thereon reached. We therefore reverse and remand for a plenary hearing.
Title 18 U.S.C. § 2520(1) provides a civil cause of action against "any person who intercepts . . . or procures any other person to intercept" wire or oral communications in violation of the Act. The same section provides a statutory defense against the suit if the interception was made with good faith reliance on a court order.
The difficulty here is that since the suit was dismissed on the pleadings, we do not have the necessary evidence before us upon which to pass on the trial court's finding. The statute, as we read it, does not say that the court order which the Act authorizes, serves as a complete bar to a damage action. It may be that the application for the wiretap itself is defective even though it states probable cause for a search. Cf. United States v. Robinson, 10 Cr.L. 2281 (5 Cir., Jan. 12, 1972); United States v. Focarile, 11 Cr.L. 2008 (D.Md., March 7, 1972). Missing from the record here is the wiretap application, the supporting affidavits and other evidence which would go to the good faith of the interception. The record only shows that appellants have stated a claim for relief and that the...
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Halperin v. Kissinger
...constitutional claims, See cases cited in note 85 Supra. See also Paton v. LaPrade, supra note 101, 524 F.2d at 872; Abramson v. Mitchell, 459 F.2d 955 (8th Cir. 1972).119 A formulation of the summary judgment standard in a similar context was offered by the Seventh Circuit in Askew v. Bloe......
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Naylor v. LEE'S SUMMIT REORGANIZED SCHOOL D. R-7
...a claim included matters outside of pleadings, court was required to treat it as a motion for summary judgment); Abramson v. Mitchell, 459 F.2d 955, 957 (8th Cir.1972) ("Where matters outside the pleadings must be considered, the court is required by Rule 12(b) and (c) of the Federal Rules ......
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Burkhart v. Saxbe, Civ. A. No. 74-826.
...subversives, organized criminals or political enemies. Therefore, this motion is premature and must be denied.5Cf., Abramson v. Mitchell, 459 F.2d 955 (8th Cir. 1972); Kinoy v. Mitchell, 331 F.Supp. 379 (S. Defendants further contend that the relevant surveillances took place prior to the d......
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Wright v. State of Florida, 73-2063.
...defense is not determined conclusively by the pleadings, and plaintiff should have the opportunity to prove his case. Abramson v. Mitchell, 459 F.2d 955 (8th Cir. 1972). Having decided that this case must be remanded, we note in passing that since the district court held its hearing in this......