Kelley v. Dunne

Decision Date21 April 1965
Docket Number6391,6406.,No. 6390,6390
Citation344 F.2d 129
PartiesJohn J. KELLEY, Plaintiff, Appellant, v. Raymond J. DUNNE, Defendant, Appellee (two cases). Elizabeth-Ann KELLEY, Plaintiff, Appellant, v. William F. WHITE et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

F. Lee Bailey, Boston, Mass., with whom Robert A. Barton, Boston, Mass., was on brief, for appellant in 6390 and 6391.

Harold Katz, Boston, Mass., with whom James C. Hamilton, Boston, Mass., was on brief, for appellant in 6406.

J. William Doolittle, Attorney, Department of Justice, with whom John W. Douglas, Asst. Atty. Gen., W. Arthur Garrity, U. S. Atty., and Morton Hollander and Edward Berlin, Attorneys, Department of Justice, were on brief, for appellees.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

ALDRICH, Chief Judge.

These three cases against two defendants, although not heard together either in this court or in the court below, involve sufficient similarities to merit treatment in one opinion. Each was brought in the state court and removed to the district court by the defendant pursuant to 28 U.S.C. § 1442(a) (1). In each the defendant thereafter filed an affidavit, moved for, and obtained, a summary judgment in his favor. In one case the plaintiff filed a counteraffidavit. In reciting the facts we exclude, of course, those which were so contradicted. We will also, to simplify the presentation, speak in terms of one defendant, since both had similar positions and duties, and were similarly engaged.1 On that basis the presently assumed facts were these.

In October 1962, the defendant came to the home of the two plaintiffs, Mr. and Mrs. Kelley. The defendant was a United States postal inspector, duly assigned to and then engaged in the investigation of a mail robbery that had occurred some weeks before in Plymouth, Massachusetts. Under 39 U.S.C. § 3523 (a) (2) (C) and (K) he had authority to investigate, develop evidence, locate witnesses, and make arrests. Mr. Kelley was out; Mrs. Kelley was at home. In order to gain admission he told her, falsely, that he had a warrant authorizing him to search the premises and, again falsely, that there was a warrant outstanding for the arrest of Mr. Kelley for a robbery five years before in Ohio, and that Mr. Kelley was suspected of complicity in the Plymouth robbery. He "did place his hands" upon Mrs. Kelley, and by "force and the threat of physical force * * * restrained her * * *." Although in legal terms assault, battery and false imprisonment, this conduct towards Mrs. Kelley was not such that it would have been excessive if in fact defendant had had a search warrant.

It is, we take it, conceded that defendant had no personal ill will against either Mr. or Mrs. Kelley, and that his only purpose was to carry out what he conceived to be his duties. However, it is specifically alleged in one of the cases that he knew that no warrants had been issued, either in Ohio, or in connection with this search. The government filed a single brief in all three cases and drew no factual distinction between them either there or in oral argument. Since these are motions for summary judgment requiring construction in plaintiff's favor we think it would be inappropriate for us to assert a distinction ourselves. Hence we will assume in all cases that defendant knew that no warrants existed.

The defendant's search discovered some U. S. currency, and two cloth money bags, which he took away with him over Mrs. Kelley's objections. According to his uncontradicted affidavit these items are now "held by the United States Post Office * * * in connection with the investigation of the Plymouth * * * robbery."

The cases thus stand that defendant postal inspector, engaged in investigating a mail robbery, and, in particular, plaintiff Kelley's possible connection therewith, did four things which he could lawfully have done under certain circumstances, none of which circumstances existed; viz., defendant stated to Kelley's wife in order to obtain entry that he had a warrant charging Kelley with robbery; entered and searched Kelley's house; restrained Kelley's wife from interfering with the entry and search; and took away certain property. Defendant contends, and the district court found, that as matter of law plaintiffs nevertheless cannot recover.2

At first blush it would seem that if personal interests are invaded without lawful excuse, such as a search warrant, hot pursuit, or consent, there should be a civil remedy. However, it has long been recognized that in some circumstances where a public interest is involved this interest may be paramount. The classic statement of the principle was given by Judge Learned Hand in Gregoire v. Biddle, 2 Cir., 1949, 177 F.2d 579, 581, cert. den. 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363.

"The justification for denying recovery * * * is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties."

A long line of decisions has, both before and since, recognized that in many instances "the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits based on acts done in the exercise of their official responsibilities" outweighs "the protection of the individual citizen against damage caused by oppressive or malicious action on the part of public officers." Norton v. McShane, 5 Cir., 1964, 332 F.2d 855, 857, petition for cert. pending.3

Gregoire v. Biddle, supra, was a personal action against the Attorney General and a number of other public officials asserting that the plaintiff had been imprisoned, on their order, as an enemy alien when in point of fact he was not such; that defendants' conduct was "without any reasonable or colorable cause" and was, accordingly, malicious and wilful. The court, interpreting this to mean not only that defendants lacked grounds for belief, but did not in fact believe that he was such an alien, nonetheless held that the complaint stated no cause of action.

Except to the extent that the court cited the principle of judicial and prosecutorial privilege, Gregoire relied upon Spalding v. Vilas, 1896, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780. There the defendant Postmaster General had delivered compensation checks to claimants with the statement that the payments were being made direct because of a Congressional requirement, and added a comment suggesting that the reason for this requirement was that the services rendered by their attorney had been unnecessary. Plaintiff alleged that this addition was false and was made maliciously for the purpose of indicating that plaintiff, who was their attorney, was rendering bills for services when he had performed no services, and thus to defame plaintiff, and to induce breaches of contract. The court said, at p. 498 of 161 U.S., at p. 637 of 16 S.Ct. "As in the case of a judicial officer, we recognize the distinction between action taken by the head of a department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision." It concluded that the defendant "cannot be held liable to a civil suit for damages on account of official communications made by him pursuant to an act of congress, and in respect of matters within his authority, by reason of any personal motive that might be alleged to have prompted his action; for personal motives cannot be imputed to duly-authorized official conduct."

The defendant, in other words, was an officer authorized to make communications, and whereas it may have been that what he stated was wrong, it was not on its face something he should not have stated, and a cause of action cannot be created by asserting that the defendant had a malicious motive.

In Barr v. Matteo, 1959, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, the court held that a complaint which alleged that a public official making a public statement about another official which he was not "required" to make, but which he had "discretion" to make, must fail even though it was alleged that the defendant acted from spite and knew that what he was saying was false.4 Correspondingly, in Howard v. Lyons, 1959, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454, decided the same day, the court recognized absolute immunity for a discretionary publication by another public official. In this instance Justice Harlan spoke for a majority of the court.

Taking these cases collectively,5 the principle is established that free and untrammeled behavior of certain government representatives is so important to the public welfare that, within limits, they should not be exposed to liability for damages by charges of improper motives, or of conscious wrongdoing.6 The difficulty is the extent of the principle. We may note, however, certain common denominators. In the first place the conduct of the defendants in all cases, viewed without reference to the defendants' alleged motives, was within the normal scope of their agency powers. A second common denominator is that the activity of the defendant was prima facie in accordance with his duties and customary behavior. It is usual for an attorney general to take procedural steps to enforce the statutes, for a disbursing officer to explain the circumstances of a payment, for an information officer to give out information. While no act can ever be judged in vacuo, but only with some measure of reference to external circumstances, some actions require very little showing in...

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31 cases
  • Downs v. Sawtelle
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 30, 1978
    ...Harper v. Cserr, 544 F.2d, supra, at 1121, and " 'reckless indifference to the rights of the individual citizen' ", Kelley v. Dunne, 344 F.2d 129 (1st Cir. 1965). Whether conduct is wanton or reckless depends in part on the context in which it occurs, and this includes the inability of the ......
  • United States v. Watson
    • United States
    • U.S. Supreme Court
    • January 26, 1976
    ...United States v. Alexander, 415 F.2d 1352 (CA7 1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1246, 25 L.Ed.2d 427 (1970); Kelley v. Dunne, 344 F.2d 129 (CA1 1965); and United States v. Bell, 294 F.Supp. 1314 (N.D.Ill.1968). The Court of Appeals for the Ninth Circuit held, however, that § 352......
  • Rupp v. Bryant
    • United States
    • Florida Supreme Court
    • July 15, 1982
    ...v. Kelly, 557 F.2d 735 (10th Cir. 1977) (immunity of officials qualified and applies only to discretionary acts) and Kelley v. Dunne, 344 F.2d 129 (1st Cir. 1965) (officials not immune for unauthorized, malicious The rationale for official immunity is the promotion of "fearless, vigorous, a......
  • Cooney v. Park County
    • United States
    • Wyoming Supreme Court
    • April 18, 1990
    ...From Civil Liability for Violation of Civil Rights Act, 42 N.Y.U.L.Rev. 160 (1967). The author suggested a test from Kelley v. Dunne, 344 F.2d 129 (1st Cir.1965) to "recognize a qualified or conditional immunity by permitting an action only upon a clear showing of ' "malice, corruption or c......
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1 books & journal articles
  • WAS BIVENS NECESSARY?
    • United States
    • Notre Dame Law Review Vol. 96 No. 5, May 2021
    • May 1, 2021
    ...immunities in cases such as Barr v. Matteo, 360 U.S. 564 (1959), would be applicable in federal officer suits. See, e.g., Kelley v. Dunne, 344 F.2d 129, 133 (1st Cir. 1965) (holding that such broad immunity did not apply with respect to removed suit against postal inspectors involving a war......

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