Lumbard, Chief Judge, and Medina and Waterman, Circuit Judges. Waterman, Circuit Judge (concurring).
Plaintiff asks us to hold that the Fourth Amendment, which guarantees to the people the right to remain secure against unreasonable searches and seizures, creates a federal cause of action for damages against federal agents who have violated this right. The District Court for the Eastern District of New York dismissed the complaint for lack of subject matter jurisdiction under 28 U.S.C. § 1331, and alternatively for failure to state a claim upon which relief can be granted.
We hold that the Fourth Amendment does not provide a basis for a federal cause of action for damages arising out of an unreasonable search and seizure. The order of the district court dismissing the complaint is affirmed.
Plaintiff Webster Bivens in his complaint, filed pro se, alleges that six federal agents entered his apartment on November 26, 1965 without a search or arrest warrant. After conducting a search of the apartment the agents arrested plaintiff for a violation of the narcotics laws and placed him in manacles in the presence of his wife and children. The search and the arrest are alleged to have been conducted "in an unreasonable manner." Plaintiff was taken to the Federal Court Building in Brooklyn, and then to the Federal Narcotic Bureau, where he was interrogated, fingerprinted, photographed, subjected to search of his person, and booked. It appears that the complaint filed against plaintiff ultimately was dismissed by a United States Commissioner. The events surrounding the search and arrest are said by plaintiff to have caused him "great humiliation, embarrassment, and mental suffering," and will continue to do so. Plaintiff prays for a judgment of $15,000 against each of the agents as damages for their unlawful actions.
The district court dismissed the complaint partly upon the ground that it lacked jurisdiction under 28 U.S.C. § 1331,*fn1 which grants to the district courts jurisdiction over actions which arise under "the Constitution, laws, or treaties of the United States." But under Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946), it is clear that the district court had jurisdiction under § 1331 to determine whether this complaint, unambiguously founded upon the Fourth Amendment, states a good federal cause of action. See Wheeldin v. Wheeler, 373 U.S. 647, 649, 83 S. Ct. 1441, 10 L. Ed. 2d 605 (1963). The district court, in the alternative, did validly rest its disposition on the merits for failure to state a claim for which relief can be granted. It is on this ground that we affirm.
On July 12, 1968 we reversed the district court's denial of petitioner's motion for leave to appeal in forma pauperis, and we granted petitioner's motion for the assignment of counsel. Stephen A. Grant, Esq., has represented petitioner on this appeal. He has the thanks of this court for the conscientious and effective manner in which he has discharged his duties as assigned counsel.
There are two distinct questions involved in this appeal. First, we must determine whether the Fourth Amendment authorizes a private suit for damages, caused by an unreasonable search and seizure, which may be brought under the general federal question jurisdiction conferred by § 1331. If it does, the question arises whether federal agents acting in their official capacity, but in violation of their lawful and constitutional authority, are immune from suit. See Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied 339 U.S. 949, 70 S. Ct. 803, 94 L. Ed. 1363 (1950); cf. Pierson v. Ray, 386 U.S. 547, 555-557, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). Since we answer the first question in the negative we have no occasion to address the immunity issue.
The view that statutory authority is a prerequisite for a federal cause of action for damages, even though the wrong complained of is the violation of a constitutional right, has been adopted by all of the courts which have examined this question recently. See United States v. Faneca, 332 F.2d 872, 875 (5th Cir. 1964), cert. denied 380 U.S. 971, 85 S. Ct. 1327, 14 L. Ed. 2d 268 (1965); Johnston v. Earle, 245 F.2d 793, 796-797 (9th Cir. 1957); Koch v. Zuieback, 194 F. Supp. 651, 656 (S.D.Cal.1961), aff'd 316 F.2d 1 (9th Cir. 1963); Garfield v. Palmieri, 193 F. Supp. 582, 586 (E.D.N.Y.1960), aff'd per curiam, 290 F.2d 821 (2d Cir.), cert. denied 368 U.S. 827, 82 S. Ct. 46, 7 L. Ed. 2d 30 (1961); Bell v. Hood, 71 F. Supp. 813 (S.D.Cal.1947). It must be said that few of these opinions have given extensive consideration to the problem, and that only the district court opinion in Bell v. Hood, supra, does so in the context of a claim founded upon the Fourth Amendment. However, we do not agree with the reasoning of this latter decision, which the district court below impliedly adopted by quoting an extensive passage in its memorandum.
In Bell v. Hood the district court drew a distinction between the "governmental" action prohibited by the Fourth Amendment and the "private" nature of the unreasonable search and seizure committed by the defendant federal law enforcement officers. The court reasoned that once the officers exceeded the limits imposed on the government by the Amendment they were no longer acting with governmental authority but rather only as individuals, and that therefore they could not be sued under the Amendment.
We cannot accept this rationale. The fact that the officers were acting in violation of the Fourth Amendment's restraints upon governmental action does not belie the plain fact that they were acting as government officials, and not in a private capacity. It was from the federal government that they drew their apparent authority, such that reasonable citizens could not have been expected to resist their unconstitutional intrusion. Action under color of law, which utilizes the power of official position, must be deemed within the scope of the Fourth Amendment.
If, then, we do not find the precedents against plaintiff conclusive, we also note that there are no precedents at all directly in his favor. Plaintiff can cite no case sustaining a federal cause of action claiming a violation of the Fourth Amendment which was not based upon a statute or upon some other basis independent of the Amendment itself. The closest he can come is West v. Cabell, 153 U.S. 78, 14 S. Ct. 752, 38 L. Ed. 643 (1894), but there the suit was upon the statutory bond of the defendant, a United States marshal; the violation of the Fourth Amendment's requirement concerning the sufficiency of an arrest warrant was held to constitute a breach of the bond. Absent the bond there would have been no cause of action based on the naked Amendment alone.
Thus we are facing as a question of the first impression the issue left for initial resolution to the lower federal courts by the Supreme Court in Bell v. Hood: whether a federal cause of action for damages arising out of an unconstitutional search and seizure can rest upon the Fourth Amendment in the absence of statutory authorization for the suit more specific than the general grant of federal question jurisdiction by 28 U.S.C. § 1331.
The history of the Fourth Amendment provides no sure answer to our inquiry, but we find it suggestive. The Amendment's prohibition against unreasonable search and seizure had its origin in several English cases which were damage actions for trespass. Entick v. Carrington, 19 Howell's State Trials 1029 (1765); see Huckle v. Money, 95 Eng.Rep. 768 (1763); Wilkes v. Wood, 98 Eng.Rep. 489 (1763). These cases, and the common law doctrine they evolved, were well known at the time the Fourth Amendment was adopted. Boyd v. United States, 116 U.S. 616, 626-627, 630, 6 S. Ct. 524, 29 L. Ed. 746 (1886). From this fact plaintiff argues that the drafters of the ...