Norton v. U.S.

• Decision Date: 19 July 1978
• Docket Number: No. 77-1919,77-1919
• Citation: 581 F.2d 390
• Parties: Elizabeth Ann NORTON, Appellee, v. UNITED STATES of America, Appellant, and John Turner, Robert O'Brien, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 390

581 F.2d 390

Elizabeth Ann NORTON, Appellee, v. UNITED STATES of America, Appellant and John Turner, Robert O'Brien, Defendants.

No. 77-1919.

United States Court of Appeals Fourth Circuit.

Argued April 6, 1978.

Decided July 19, 1978.

Paul Blankenstein, Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C. (Barbara Allen Babcock, Asst. Atty. Gen., William B. Cummings, U. S. Atty., Alexandria, Va., and William Kanter, Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., on brief), for appellant.

John D. Grad, Alexandria, Va. (Philip J. Hirschkop, Hirschkop & Grad, P. C., Alexandria, Va., Arthur H. Blitz, Silver Spring, Md., Robert D. Salzer, Silver Spring, Md., on brief), for appellee.

Before WINTER, BUTZNER and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

Elizabeth Ann Norton was awarded summary judgment against the United States and damages in the sum of $12,500 in her suit under the fourth amendment for violation by federal law enforcement officers of her rights secured by that amendment. In reaching this result, the district court ruled that the United States could not assert as a defense to its liability the good faith and reasonable belief of the officers in the legality of their conduct which provided the basis of the suit. Norton v. Turner, 427 F.Supp. 138 (E.D.Va.1977). The correctness of that ruling is the sole issue on appeal. We reverse and remand for further proceedings.

I.

At approximately eight o'clock on the evening of March 15, 1975, the Alexandria, Virginia, Police Department received an anonymous telephone call advising that the nationally-sought federal fugitive Patricia Hearst was occupying an apartment in the Alexandria area. Federal arrest warrants for her arrest were outstanding. The FBI was immediately notified and, at approximately 9:30 p. m. on the same evening, four FBI agents, together with two local detectives, arrived at the reported address. After surveying the site for approximately thirty minutes, the officers sought entry into the suspect apartment. The officers had been warned that Ms. Hearst should be considered armed and dangerous. No search warrant was either sought or obtained.

The apartment was that of plaintiff who was alone in the apartment. Since it was ten o'clock at night and her door had no peephole for viewing visitors, she refused to admit the agents. Conversation ensued. Unable to prevail upon plaintiff to open the door, the agents began a forcible entry. Plaintiff, fearing that the door would be destroyed, unlatched the lock and the law enforcement officers entered with weapons drawn. A search of the apartment revealed no traces of either Patricia Hearst or her suspected companions. After concluding that the anonymous tip was either a hoax or an attempt by a disgruntled neighbor to harass plaintiff, the officers departed.

Plaintiff subsequently brought this suit for damages against both the law enforcement officers involved and the United States. Suit against the local police officers was brought under 42 U.S.C. § 1983, while suit against the federal agents was brought directly under the fourth amendment to the Constitution of the United States. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Both the local and federal agents defended the suit, Inter alia, on the ground that they acted in good faith and with a reasonable belief in the lawfulness of their actions. Damages were claimed against the United States under the Federal Tort Claims Act (FTCA), then recently amended to allow suit against the United States where federal investigative or law enforcement officers commit certain types of intentional torts in the course of conducting searches or making arrests. Pub.L. No. 93-253, § 2, 88 Stat. 50 (1974) (amending 28 U.S.C. § 2680(h)). ¹ The United States also defended on the ground, Inter alia, of the good faith and reasonable belief in the lawfulness of their actions on the part of its agents.

On cross-motions for summary judgment, the district court first determined that the officers' entry into and search of the apartment had violated plaintiff's fourth amendment rights since the officers had insufficient cause to believe that Hearst was inside plaintiff's apartment. 427 F.Supp. at 143-44. With respect to the good-faith and reasonable-belief defenses of the individual defendants, the court concluded that unresolved issues of facts made summary judgment inappropriate. Id. at 145-46. As to the United States, however, summary judgment was entered for the plaintiff. After carefully considering both the legislative history surrounding the enactment of the 1974 amendment to the Federal Tort Claims Act and the policy implications of expanded governmental liability thereunder, the district court concluded that proof of a constitutional violation by federal law enforcement officers is sufficient Per se to render the government liable for any damages sustained as a result of the unconstitutional conduct. Id. at 146-52. Stated otherwise, the United States could not defend its liability on the basis of its agents' good faith and reasonable belief even if it could prove both. Thereafter, upon motion of plaintiff, the district court dismissed the suit against the individual defendants and entered judgment against the United States in the amount of $12,500. This appeal followed.

II.

In this appeal the government does not contest the district court's finding that a violation of plaintiff's fourth amendment rights occurred. Nor does it dispute the applicability of 28 U.S.C. § 2680(h), as amended in 1974, to the instant action. The amendment to § 2680(h) is clearly intended to waive the federal government's sovereign-immunity defense in suits brought to redress violations of the fourth amendment committed by federal law enforcement officers. See S.Rep. No. 93-588, 93rd Cong., 2d Sess., Reprinted in (1974) U.S.Code Cong. & Admin.News, p. 2789.

What is the only issue raised by the government in this appeal is the extent of its liability under FTCA. The United States urges that its liability is no greater than that of its employees. It submits that, under both traditional principles of Respondeat superior and established FTCA precedent, it is entitled to assert all defenses available to its agents individually, including the defenses of good faith and reasonable belief. Plaintiff, on the other hand, urges that we uphold the district court's more expansive view of governmental liability. We adopt the more limited view of liability urged upon us by the government and hold that the liability of the United States under § 2680(h) is coterminous with the liability of its agents under Bivens.

III.

In 1971, the Supreme Court announced a federal damages remedy to redress violations of the fourth amendment by federal law enforcement officers. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra. While Bivens created a federal cause of action sounding in tort cognizable in federal courts under 28 U.S.C. § 1331, it did not delineate the scope of the officer's tort duty. On remand, the Second Circuit concluded that an officer's tort duty under Bivens should not be coextensive with his constitutional duty under the fourth amendment. Looking to the traditional doctrine of police-officer liability for common-law torts, the court concluded that an individual officer should escape personal liability if he establishes that he acted "in good faith and (with a) reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted." 456 F.2d 1339, 1348 (2 Cir. 1972). This definition of an individual officer's tort duty under Bivens has been widely accepted. ²

While Bivens created a federal tort for certain violations of the fourth amendment, it did not (and indeed could not) impose liability on the officer's employer, the federal government. The federal fisc was protected by the traditional doctrine of sovereign immunity. ³ The inability to secure a remedy against the United States severely restricted the effectiveness of the Bivens remedy. As Senator Percy remarked after conducting hearings into the much-publicized Collinsville drug raids in which innocent persons suffered not insubstantial abuse at the hands of federal narcotics agents:

While (Bivens ) gives victims of abusive tactics some opportunity for relief, their remedy is severely limited by the ease with which agents can usually establish the defense of having acted in good faith and with probable cause. Moreover, causes of action against officials as individuals will, on occasion, be virtually worthless since government employees may be so lacking in funds as to be judgment proof.

S.Rep. No. 93-469, 93rd Cong., 1st Sess. 36 (1973) (individual views of Senator Percy).

Consistent with these remarks, Senator Percy proposed a rider to H.R. 8245 ⁴ "to provide a remedy against the United States for the intentional torts of its investigative and law enforcement officers." S.Rep. No. 93-588, Supra, (1974) U.S.Code Cong. & Admin.News at 2789. Enacted in March, 1974, as Pub.L. No. 93-253, § 2, this legislation amended FTCA so as to create an exception to the intentional-tort exception of 28 U.S.C. § 2860(h).

IV.

In waiving sovereign immunity with regard to intentional torts committed by federal investigative or law enforcement officers, Congress did not enact a discrete statutory provision; rather, it used as its vehicle the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 Et seq. Section 2674, which waives the sovereign immunity of the United States and thus renders it liable for the torts described in the Act, states that the United States "shall be liable . . . In the same manner and to the same extent as a private individual under like circumstances . . ." (emphasis...