Zweibon v. Mitchell

• Decision Date: 12 July 1979
• Docket Number: No. 78-1348,78-1348
• Citation: 606 F.2d 1172,196 U.S.App.D.C. 265
• Parties: Bertram ZWEIBON et al., Appellants, v. John N. MITCHELL, Individually and as Attorney General of the United States, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1172

606 F.2d 1172

196 U.S.App.D.C. 265

Bertram ZWEIBON et al., Appellants, v. John N. MITCHELL, Individually and as Attorney General of

the United States, et al.

No. 78-1348.

United States Court of Appeals,

District of Columbia Circuit.

Argued Feb. 9, 1979.

Decided July 12, 1979.

Nathan Lewin, Washington, D.C., with whom Martin D. Minsker and Jamie S. Gorelick, Washington, D.C., were on brief, for appellants.

R. John Siebert, Atty., Dept. of Justice, Washington, D.C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Washington, D.C., at the time the brief was filed, Earl J. Silbert, U. S. Atty., Washington, D.C., at the time the brief was filed, and Robert E. Kopp and Larry L. Gregg, Attys., Dept. of Justice, Washington, D.C., were on brief, for appellees.

Before WRIGHT, Chief Judge, ROBINSON, Circuit Judge, and GESELL, ^* District Judge.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Chief Judge:

Appellants, members of the Jewish Defense League (JDL), sued former Attorney General John N. Mitchell and nine agents of the Federal Bureau of Investigation (FBI) for damages for wiretapping of the JDL's New York office in 1970 and 1971. The District Court dismissed the case because it refused to apply retroactively the constitutional requirement of a warrant for national security wiretaps that was articulated in United States v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), and in Zweibon v. Mitchell (Zweibon I), 170 U.S.App.D.C. 1, 516 F.2d 594 (1975) (En banc ), Cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976). Similarly, the District Court limited to prospective effect the conclusion of the plurality in Zweibon I that some of the procedures and remedies of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ¹ are relevant to those national security surveillances that violate the Fourth Amendment. Since both holdings dispose of only part of appellants' complaint, however, there was no basis for dismissing the entire suit. Moreover, we decline to restrict the constitutional warrant requirement of Keith And Zweibon I to prospective effect in damage suits like this one. Finally, we affirm the District Court's ruling on the Zweibon I plurality's view of the statutory question.

I

The facts underlying this action are set out in detail in our opinion in Zweibon I, so we will note only the salient points here. In the late 1960s the JDL staged occasionally violent demonstrations against Soviet installations and personnel in New York to protest the treatment of Jews in Russia. The JDL program drew complaints from the Soviets, along with thinly veiled threats of reprisal against Americans in the Soviet Union. ² In addition, suspected and anticipated JDL actions constituted violations of several criminal statutes. ³ In October 1970, and between January and July 1971, the Government wiretapped six telephones at JDL headquarters.

The existence of the JDL wiretaps came to light in June 1971 during the trial of several JDL members on criminal charges, ⁴ and this suit for damages under the Fourth Amendment and Title III followed. The District Court granted summary judgment in favor of defendants on July 20, 1973, ⁵ but this court, acting En banc, reversed that ruling in Zweibon I. Drawing on the Supreme Court's decision in Keith, we found that the Government could not constitutionally place a wiretap on appellants' telephones without first acquiring a judicial warrant. ⁶ In September 1977 we also reversed the District Court's decision that the plaintiffs were not entitled to a jury trial. ⁷ The ruling we consider today came in response to renewed motions for summary judgment by appellees. ⁸

II

The problem of determining the retroactive effect of a "new" judicial ruling goes to the heart of what courts do. Chief Justice Hughes described such decisions as "among the most difficult of those which have engaged the attention of (the) courts." ⁹ The traditional view is that decisions overruling prior holdings or announcing novel doctrine must be applied to all subsequent cases, even if the later cases involve incidents that took place before the crucial judicial ruling. ¹⁰ In such cases, according to Blackstone, "judges do not pretend to make a new law, but to vindicate the old one from misrepresentation." ¹¹ Thus for Blackstone judicial overruling reflects not the decision that the previous approach was "Bad law, but that it was Not law." ¹²

For many years the Supreme Court only occasionally ignored the Blackstonian view of retroactivity by restricting reversal of earlier law to prospective effect. ¹³ In the 1960s, however, the Court established prospectively a number of constitutional rules protecting the rights of criminal defendants. ¹⁴ Prospective overruling can preserve the flexibility of judge-made law without causing unacceptable social upheaval, but the technique has two substantial drawbacks. First, it carries all the earmarks of legislative action with none of the democratic procedures. ¹⁵ Second, it is difficult as a logical proposition to maintain that a new doctrine should be established, yet that prior doctrine applies to cases reaching the courts after that decision so long as they involve events that occurred before that point. As Justice Harlan wrote:

If a "new" constitutional doctrine is truly right, we should not reverse lower courts which have accepted it; nor should we affirm those which have rejected the very arguments we have embraced. * * * ( ¹⁶

Historically, prospectivity has been less common in civil than in criminal cases. ¹⁷ This is at least partly due to the potential flood of Habeas corpus petitions that looms if a court recognizes retroactively a procedural or substantive right of criminal defendants. ¹⁸ No such threat arises in civil litigation where a retroactive decision can affect only suits pending in the courts or not yet brought, but cannot be raised by previously unsuccessful litigants. The prospectivity determination in both civil and criminal cases, however, remains a pragmatic one that turns on the expected impact of a retroactive overruling on the society and legal system. Retroactivity is the rule, but not at the expense of other important values. ¹⁹

Our disagreement with the District Court can be traced in part to the complexity of this suit. Appellants do not present one cause of action, but rather seek damages under both Title III and the Fourth Amendment. And the constitutional basis for their suit involves both the warrant requirement of Keith and Zweibon I and the question whether the wiretap was reasonable even if no warrant was necessary. We think the retroactivity decision must be tailored to each particular cause of action. More important, we emphasize that the suit before us is not a criminal case, but a civil damage action alleging a constitutional tort. We must take care that in considering retroactivity we appreciate the context of our determination.

There can be no question of novelty, and hence no retroactivity problem, as to two features of this case. First, because the "reasonableness" requirement of the Fourth Amendment was recognized at the time of the wiretap as a controlling standard for national security surveillances, ²⁰ the District Court should have applied that standard to the wiretap as initiated and as conducted for six months. Second, in Zweibon I we assumed without deciding that the surveillance concerned national security matters, ²¹ and suggested that the District Court might inquire into this issue on remand. ²² Since then appellants have marshalled additional evidence suggesting that the primary motive behind the wiretap was criminal investigation, not national security. ²³ If this proposition can be established at trial, the violation of the terms of Title III would be apparent, because appellees do not contend that they followed statutory procedures; and since the statute was enacted two years before the JDL surveillances, there would be no retroactivity question. ²⁴

III

With respect to the retroactivity of the Fourth Amendment warrant requirement announced by Keith and Zweibon I, more extended analysis is required. In Chevron Oil Co. v. Huson ²⁵ the Supreme Court offered a useful three-step test for prospectivity which was followed by the District Court in the case before us: (A) Did the court directly overrule precedent or announce a rule "not clearly foreshadowed"? (B) Is prospective application consistent with the "purpose and effect" of the rule? (C) Are there equitable considerations requiring prospective application? Because each of these considerations will have different effect in different cases, no single factor is controlling.

A

Appellants dispute the District Court's view that the application of the Fourth Amendment's warrant requirement to national security surveillances was "not clearly foreshadowed" by judicial decisions before these wiretaps were installed. Before Keith the Supreme Court had never ruled on the need under the Constitution for a warrant in national security surveillances, ²⁶ but appellants urge that the trend of Supreme Court decisions was clear and that disagreement among the lower courts on this question could not justify the assumption that warrantless wiretapping was constitutional. ²⁷ Moreover, appellants point to a memorandum to appellee Mitchell from the Solicitor General in 1969 that noted the Supreme Court's "great hostility" to attempts to limit the rights of those "suspected of engaging in subversive activities," and counselled against a court test of Executive power to wiretap without a warrant. ²⁸

Since Keith and Zweibon I did not overrule any earlier decisions, we must determine whether application of the warrant requirement to national security cases was "not clearly foreshadowed." The Supreme Court has phrased this question in terms of whether a new rule represents the...