Bell v. Hood

• Decision Date: 02 May 1947
• Docket Number: No. 2850.,2850.
• Citation: 71 F. Supp. 813
• Court: U.S. District Court — Southern District of California
• Parties: BELL et al. v. HOOD et al.

71 F. Supp. 813

BELL et al. v. HOOD et al.

No. 2850.

District Court, S. D. California, Central Division.

May 2, 1947.

A. L. Wirin, of Los Angeles, Cal., for plaintiffs.

James M. Carter, U. S. Atty., of Los Angeles, Cal., for defendants.

MATHES, District Judge.

This action was brought by Arthur L. Bell and other associates of "Mankind United", on behalf of that organization and themselves as individuals, against 37 special agents of the Federal Bureau of Investigation, one policeman of the city of Los Angeles and several "John Does."

Plaintiffs pray judgment for damages alleged to have been suffered as a proximate result of (1) claimed imprisonment by defendants in violation of their constitutional right to be free from deprivation of liberty without due process of law, and (2) claimed search of their premises and seizure of their possessions by defendants in violation of plaintiffs' constitutional right to be free from unreasonable searches and seizures.

Federal jurisdiction was invoked on the ground that the action "arises under the Constitution or laws of the United States" within the meaning of § 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1), and the amount in controversy exceeds $3,000. Diversity of citizenship is not claimed.

Specifically, the asserted cause of action is claimed to arise under the Fourth and Fifth Amendments of the Constitution of the United States. The asserted tortious acts of the defendants are alleged to have been done "beyond their authority"; hence not qua federal officers, but as individuals.

Defendants moved to dismiss for failure to state a claim upon which relief can be granted. Or in the alternative for summary judgment on the ground that the searches and seizures were incidental to lawful arrests and therefore valid. My learned predecessor, the late Judge Jenney, did not entertain the motions, but dismissed the action for want of federal jurisdiction.

This dismissal was affirmed by the Ninth Circuit Court of Appeals. Bell v. Hood, 9 Cir., 1945, 150 F.2d 96. Certiorari was granted, Bell v. Hood, 1945, 326 U.S. 706, 66 S.Ct. 98, and the Supreme Court held (Mr. Chief Justice Stone and Mr. Justice Burton dissenting) that this court had jurisdiction and remanded the cause, saying:

"Whether or not the complaint as drafted states a common law action in trespass * * * it is clear from the way it was drawn that * * * plaintiffs seek recovery squarely on the ground that * * * defendants violated the Fourth and Fifth Amendments. * * *

"Before deciding that there is no jurisdiction, the district court must look * * * to see if * * * the complaint is drawn so as to claim a right to recover under the Constitution and laws of the United States. For to that extent `the party who brings a suit is master to decide what law he will rely upon * * *.'

* * * * * *

"Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does * * * determine that the allegations in the complaint do not state a ground for relief, then dismissal * * * would be on the merits * * *. The previously carved out exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim * * * clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or * * * is wholly insubstantial and frivolous. The accuracy of calling these dismissals jurisdictional has been questioned.

* * * * * *

"Whether the petitioners plaintiffs are entitled to recover depends upon an interpretation of 28 U.S.C. § 41(1), 28 U.S.C.A. § 41(1), and on a determination of the scope of the Fourth and Fifth Amendments' protection from unreasonable searches and deprivations of liberty without due process of law. Thus, the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another. For this reason the district court has jurisdiction." Bell v. Hood, 1946, 327 U.S. 678, 681, 682, 683, 684, 685, 66 S.Ct. 773, 775.

Although the Supreme Court found that the case at bar does not fall within "previously carved out exceptions", it would seem that the Court has now returned to the reasoning of Mr. Chief Justice Marshall in Cohens v. Virginia, 1821, 6 Wheat. 264, 19 U.S. 264, 379, 5 L.Ed. 257: "A case in law or equity consists of the right of one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either." Cf. Binderup v. Pathe Exchange, 1923, 263 U.S. 291, 305, 306, 44 S.Ct. 96, 68 L.Ed. 308; Smith v. Kansas City Title Co., 1921, 255 U.S. 180, 199, 41 S.Ct. 243, 65 L.Ed. 577; The Fair v. Kohler Die Co., 1913, 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716; Swafford v. Templeton, 1901, 185 U.S. 487, 493, 494, 22 S.Ct. 783, 46 L. Ed. 1005.

"Jurisdiction is the authority to decide the case either way." The Fair v. Kohler Die Co., supra, 228 U.S. 22 at 25, 33 S.Ct. 410, 411, 57 L.Ed. 716; Burnet v. Desmornes, 1912, 226 U.S. 145, 147, 33 S.Ct. 63, 57 L.Ed. 159; Fauntleroy v. Lum, 1907, 210 U.S. 230, 234, 235, 28 S.Ct. 641, 52 L. Ed. 1039. To decide whether a claim asserted under the Constitution or federal statutes is "wholly insubstantial and frivolous", a court must first ascertain whether the allegations state a cause of action on which the court can grant relief.

Standards whereby to test jurisdiction should never be needlessly vague or uncertain. Tests of original jurisdiction should be especially clear and certain. Thus, both reason and policy require that the power of federal district courts to hear and determine any case should depend upon the claim asserted, not upon the claimant's chances of recovery.

It is now settled that this court, in the exercise of its original jurisdiction, has the authority and the duty to decide whether the case at bar should be dismissed on the merits for failure to state a claim upon which relief can be granted in the federal courts.

As the opinion points out: "The issue of law is whether federal courts can grant money recovery for damages said to have been suffered as a result of federal officers violating the Fourth and Fifth Amendments. That question has never been specifically decided by this Court." Bell v. Hood, supra, 327 U.S. at 684, 66 S.Ct. 776. (Emphasis added.)

Plaintiffs have now filed a motion for an order directing defendants to answer. This motion and defendants' motions to dismiss and for a summary judgment are now pending. But only the question whether the complaint states a cause of action cognizable in the federal courts has been argued and submitted. Consideration of the other motions will be unnecessary of course if the motion to dismiss be granted.

History is clear that the first ten Amendments to the Constitution were adopted to secure certain common-law rights of the people against invasion by the Federal Government. For example, 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 * * *."

The right to be free from unreasonable searches and seizures is a common-law right. Entich v. Carrington, 1765, 19 How.St.Tr. 1029; Boyd v. United States, 1886, 116 U.S. 616, 624-632, 6 S.Ct. 524, 29 L.Ed. 746. Thus the Fourth Amendment did not create a new right, but merely gave a pre-existing common-law right constitutional protection from invasion by the Federal Government.

Accordingly, the Fourth and Fifth Amendments do not limit state or individual action, but only federal action. Twining v. New Jersey, 1908, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Spies v. Illinois, 1887, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; Barron v. Baltimore, 1833, 7 Pet. 243, 32 U.S. 243, 8 L.Ed. 672. As was said in Feldman v. United States, 1944, 322 U.S. 487, 490, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408, 154 A.L.R. 982: "* * * for more than one hundred years * * * one of the settled principles of our Constitution has been that these Amendments protect only against invasion of civil liberties by the Government whose conduct they alone limit." Cf. Burdeau v. McDowell, 1921, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159; Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; Hall v. United States, 9 Cir., 1930, 41 F.2d 54; Brown v. United States, 9 Cir., 1926, 12 F.2d 926.

As applied to the case at bar, then, the Fourth and Fifth Amendments only limit the authority of the defendants while acting as federal officers. If it is determined that defendants' actions qua federal officers were illegal, the evidence so obtained may not be used against plaintiffs in criminal prosecutions by the Federal Government. Boyd v. United States, supra, 116 U.S. 616 at 633, 6 S.Ct. 524, 29 L.Ed. 746; Gouled v. United States, 1921, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426; United States v. Bell, D.C.S.D.Cal., 1943, 48 F.Supp. 986 reversed on other grounds, 9 Cir., 1947, 159 F.2d 247.

But the Federal Government as sovereign has never consented to be sued for damages resulting from invasion of the rights protected by the Fourth and Fifth Amendments. To the contrary, since the commencement of this action, Congress has expressly denied consent to sue the Federal Government upon "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process * * *" even in cases where such torts are committed by a federal officer "while acting within the scope of his office or employment * * *." Federal Tort...