Hughes v. Johnson

• Decision Date: 27 June 1962
• Docket Number: No. 17383.,17383.
• Citation: 305 F.2d 67
• Parties: George H. HUGHES et al., Appellants, v. James JOHNSON et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

305 F.2d 67 (1962)

George H. HUGHES et al., Appellants, v. James JOHNSON et al., Appellees.

No. 17383.

United States Court of Appeals Ninth Circuit.

June 27, 1962.

Millington & Millington, and Robert Millington, Gridley, Cal., for appellants.

William H. Orrick, Jr., Asst. U. S. Atty., Civil Division, Department of Justice, Morton Hollander, Chief, Appellate Sec., John G. Laughlin, Terrence N. Doyle, Ronald A. Jacks, Attys., Department of Justice, Washington, D. C., Cecil F. Poole, U. S. Atty., San Francisco, Cal., and Robert E. Woodward, Asst. U. S. Atty., Sacramento, Cal., for appellees.

Before HAMLIN, MERRILL and BROWNING, Circuit Judges.

MERRILL, Circuit Judge.

Appellees are federal game wardens. Appellants are the owners of the Gridley Poultry Market, located in Gridley, California, which engages in the business of cold storage of game birds of hunters. The action is brought to recover from appellees damages allegedly suffered by appellants by virtue of appellees' trespass in an unlawful search for and seizure of game birds in appellants' possession.

Appellants sought compensatory damages for loss of business and business reputation and false imprisonment. They also sought punitive damages. Alleging that such trespasses have occurred in the past, they sought an injunction against further trespass.

The action was brought in the California state courts. Appellees removed the suit to the federal courts pursuant to 28 U.S.C. § 1442, and then moved to dismiss on the ground that the complaint failed to state a claim. The district court ruled that the acts of the appellees were within the scope of their duties as federal officers and were accordingly protected by immunity from civil suit under Barr v. Matteo, 1959, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434. The motion of appellees was granted, the action was dismissed and this appeal followed.

Appellants' position is that the conduct of the wardens amounted to unlawful search and seizure and that the violation of such constitutional rights, made criminal by law (18 U.S.C. § 2236), is not protected by immunity under Barr v. Matteo, supra.

If we were here faced with a case of unauthorized search, we should for the reasons later discussed agree with appellants. The difficulty with their position is that the allegations of the complaint are to us more consistent with inspection than with trespass.

According to the allegations of the complaint, the following events occurred. On December 21, 1958, twelve federal game wardens, under color of official office, descended upon the Gridley Poultry Market. Six of them entered the premises while six remained outside, making it difficult for customers to come and go. Those who entered displayed no search warrants. They seized the customers' records which appellants are required by law to keep. Without permission, the wardens entered the area behind the counter, entered the refrigerator, deepfreeze and lockers of the appellants and seized certain wild fowl belonging to various customers of appellants for the reason that the tags attached to the fowl failed in certain respects strictly to comply with the requirements of law. The wild fowl not seized were intermingled and mixed up and left in a disorderly condition. After spending three hours going through appellants' premises, the officers left, taking with them the records and the wild fowl which had been seized. These have not been returned, although demanded. No arrest was ever made.

Appellants appear to assume that a search warrant is necessary before these officers may demand production of the records or of the game birds in their possession. This clearly is not so.

Pursuant to treaty obligations of the United States with Great Britain and Mexico, the Congress has through the Migratory Bird Act, 16 U.S.C. § 703 et seq., imposed upon the Secretary of the Interior the responsibility for conserving and protecting certain game birds and has empowered him to adopt regulations to this end. The Secretary, through regulations, has specified the time, place, number and kind of migratory game birds that may be taken and the manner in which they may be taken. The regulations in effect at the time of the acts alleged in the complaint provided:

"No person, other than the person who has lawfully taken such birds, shall receive, possess, or have in custody migratory game birds for picking, cleaning, processing, shipping, or for transportation or storage (including temporary storage at hunting clubs) unless such birds have a tag attached signed by the hunter stating his address, the total number and kinds of birds, and the date killed. Any commercial picking establishment, cold-storage or locker plant receiving, possessing, or having in custody migratory game birds shall maintain accurate records showing the numbers and kinds of such birds, the dates received and disposed of, and the names and addresses of the persons from whom such birds are received and to whom such birds are delivered. Such records shall be produced at any reasonable time for inspection by any officer authorized to enforce this part. * * * The records so required to be maintained shall be retained by the person or persons responsible for their preparation and maintenance for one year following the close of the open season on migratory game birds prescribed for the State

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