Stanford Daily v. Zurcher
Decision Date | 02 February 1977 |
Docket Number | No. 74-3212,74-3212 |
Citation | 550 F.2d 464 |
Parties | The STANFORD DAILY et al., Plaintiffs-Appellees, v. James ZURCHER, Individually and as Chief of Police of the City of Palo Alto, County of Santa Clara, State of California et al., Defendants-Appellants. |
Court | U.S. Court of Appeals — Ninth Circuit |
Sanford Svetcov (argued) San Francisco, Cal., Marilyn Norek Taketa (argued), Palo Alto, Cal., for defendants-appellants.
Jerome B. Falk, Jr. (argued) San Francisco, Cal., for plaintiffs-appellees.
Before HUFSTEDLER and GOODWIN, Circuit Judges, and EAST, * District Judge.
I
We adopt the opinion of the district court, Stanford Daily v. Zurcher, 353 F.Supp. 124 (N.D.Cal.1972).
II
We reject appellants' contention that the issuing magistrate is the sole proper party defendant. Having lost in the lower court, the appellants raise this issue for the first time upon appeal. In this respect, the argument is at least, untimely. Moreover, we are not persuaded that it has merit. The appellants are proper defendants in a suit to declare that actions theretofore performed were illegal and to enjoin them from acting illegally or permitting their subordinates from engaging in such illegal conduct in the future. 1 (Cf. Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969); Hernandez v. Noel, 323 F.Supp. 779, 783 (Conn.1970) () .)
III
We also reject appellants' argument that their good faith in securing what turned out to be an invalid warrant insulates them from liability. The appellants rely on the rule that gives public officials a qualified immunity in damage actions under Section 1983 if the officials acted in good faith. Extension of this rule to suits like the present one, seeking injunctive and declaratory relief, has been rejected by the courts. We accept the Fourth Circuit's rationale in Rowley v. McMillan, 502 F.2d 1326, 1332 (1974):
IV
The district court awarded attorney's fees to the appellees. It applied the then prevailing law permitting such awards based on the private attorney general doctrine, and pursuant to the court's inherent equitable power. (E. g., Brandenburger v. Thompson (9th Cir. 1974) 494 F.2d 885.) While the case was pending on appeal, the Supreme Court decided Alyeska Pipeline Service Co. v. The Wilderness Society (1975) 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141, which severely restricted the private attorney general doctrine and destroyed the legal foundation for appellees' fee award. While this case was still pending on appeal, Congress passed the Civil Rights Attorney's Fees Awards Act of 1976 (the "Act"), 1976 U.S.Code Cong. & Ad.News, 90 Stat. 2641 (October 19, 1976), which restored pre-Alyeska law to (Sen.Rep.No.94-1011, 94th Cong., 2d Sess. 4 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5908, 5912 accompanying S. 2278 (hereinafter "Senate Report").) (See also id. at p. 4, 1976 U.S.Code Cong. & Admin.News 5911) () ; 122 Cong.Rec. 12163 (daily ed. October 1, 1976)
We are not left to speculate whether Congress intended the Act to apply to attorney's fee awards in cases like this one. The Act expressly states that it is applicable to § 1983 actions like the present case. 2 And the legislative history is crystalline on the point. The House Report accompanying the House version of the same bill states:
(H.R.Rep.No.94-1558, 94th Cong., 2d Sess. 4, n.6 (1976).)
(See also 122 Cong.Rec. 17052 (daily ed. September 29, 1976) ; 122 Cong.Rec. 12155 (daily ed. October 1, 1976) ( ; id. at 12160 (remarks of Rep. Drinan).)
As if this were not enough, the Senate Report cited the award in this very case as an example of the fee awards which it approved and which it intended to authorize in the Act. (Senate Report, supra, pp. 4, n.3, 6.)
Under these circumstances, no useful purpose would be served in requiring a remand to the district court to decide the impact...
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