Medina, Lumbard and Waterman, Circuit Judges. Lumbard, Circuit Judge (concurring).
The decision of the Supreme Court (403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)) establishes for the first time since the founding of the Republic the federal common law right of an aggrieved person to sue for damages caused by a violation of the Fourth Amendment guarantee against unreasonable searches and seizures. Obeying the mandate of the remand we must now decide the important and highly controversial question whether the acts of these Federal Bureau of Narcotics Agents are clothed with immunity, and, if not, to formulate the standard which judges and juries are to apply in deciding the issue of the liability of such officers to pay damages to an allegedly wronged plaintiff.
The decisional background against which we must answer these questions is extensive, conflicting and complex. We must take into consideration: (1) the theoretical basis for immunity of federal officials generally; (2) the impact of the Civil Rights Act, Section 1983, 42 U.S.C. Section 1983 (1970), which does not apply to federal but only to state officers, and the desirability of formulating a federal rule that applies on the same terms to both state and federal police officers; and (3) the rule of liability of a police officer at common law.
We have concluded and now decide and hold that it is a principle of federal law that Agents of the Federal Bureau of Narcotics, and other federal police officers such as Agents of the FBI performing similar functions, while in the act of pursuing alleged violators of the narcotics laws or other criminal statutes, have no immunity to protect them from damage suits charging violations of constitutional rights. We further hold, however, that it is a valid defense to such charges to allege and prove that the federal agent or other federal police officer acted in the matter complained of 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.
The following is Mr. Justice Brennan's summary of the case, 403 U.S. at 389-390, 91 S. Ct. at 2001:
This case has its origin in an arrest and search carried out on the morning of November 26, 1965. Petitioner's complaint alleged that on that day respondents, agents of the Federal Bureau of Narcotics acting under claim of federal authority, entered his apartment and arrested him for alleged narcotics violations. The agents manacled petitioner in front of his wife and children, and threatened to arrest the entire family. They searched the apartment from stem to stern. Thereafter, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.
On July 7, 1967, petitioner brought suit in Federal District Court. In addition to the allegations above, his complaint asserted that the arrest and search were effected without a warrant, and that unreasonable force was employed in making the arrest; fairly read, it alleges as well that the arrest was made without probable cause. Petitioner claimed to have suffered great humiliation, embarrassment, and mental suffering as a result of the agents' unlawful conduct, and sought $15,000 damages from each of them.
The District Court dismissed the complaint, holding that: (1) there is no right of action under the Fourth Amendment; and (2) even if there is such a right of action, defendants, being federal agents, are immune from suit. 276 F. Supp. 12 (E.D.N.Y.1967). We affirmed on the basis of the first ground and, therefore, did not pass on the immunity question. 409 F.2d 718 (2d Cir. 1969). The Supreme Court reversed, holding that a valid claim for relief had been stated, and remanded the case to us for a determination of the immunity question. 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).
It has long been the rule in this country that certain officers of the federal government, acting in their official capacities, are absolutely immune from lawsuits. Thus, Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 20 L. Ed. 646 (1871), held that judges enjoy an absolute immunity. This protection was extended to officers of the executive branch*fn1 in Spalding v. Vilas, 161 U.S. 483, 16 S. Ct. 631, 40 L. Ed. 780 (1896).
The classic modern case on the subject is 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), where Judge Learned Hand held that two successive Attorneys General of the United States, two successive Directors of the Enemy Alien Control Unit of the Department of Justice, and the District Director of Immigration at Ellis Island had immunity from civil suits brought against them for acts done in their official capacities. Noting that it was intolerable not to compensate wrongs done by public officials, Judge Hand nevertheless found that this consideration was outweighed by the public interest in having government officials perform their duties fearlessly. Few public officials, Judge Hand reasoned, would perform their functions vigorously if they knew they might have to bear the burden of standing trial and defending their actions. This immunity was absolute, moreover, and was upheld even if malice was alleged.
In Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959) the Supreme Court adopted the reasoning of Judge Hand and held that the Acting Director of the Office of Rent Stabilization could not be sued for issuing an allegedly libelous press release. The plurality opinion, written by Mr. Justice Harlan,*fn2 first focused on the nature of the defendant. Stating that one must look to the duties performed by the officer, not to his title or place in the hierarchy, Mr. Justice Harlan held that an official is immune if he performs "discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority." 360 U.S. at 575, 79 S. Ct. at 1341. Once an official is found to be exercising this kind of discretion, the act complained of must be "within the outer perimeter of [the official's] line of duty" before the official will be granted immunity. 360 U.S. at 575, 79 S. Ct. at 1341. Other cases dealing with this subject have proceeded on one or both of these grounds.
Thus we have two issues to resolve, both on the face of the allegations of the complaint: (1) taking these allegations to be true, as we must, is there a showing that the Narcotics Agents were acting "within the outer perimeter of [their] line of duty"; and, if so, (2) were they alleged to be performing the type of "discretionary" function that entitles them to immunity from suit. There is no allegation of malice in this complaint.
We hold that what these Narcotics Agents are charged with, despite the allegations of illegality because of lack of a warrant and probable cause, and the use of unnecessary force, is precisely what Narcotics Agents are supposed to do, namely, make arrests in narcotics cases. So we hold they were alleged to be acting "within the outer perimeter of [their] line of duty." But we reject the claim of immunity because we do not agree that the Agents were alleged to be engaged in the performance of the sort of "discretionary" acts that require the protection of immunity. In the latter part of this opinion we discuss and support the defense of good faith and reasonable belief that the arrest and search were lawful and reasonable.
In Spalding v. Vilas, supra, 161 U.S. 483, 498, 16 S. Ct. 631, 637 (1896) the Supreme Court said that an official is within the scope of his authority if his "action[s] [have] more or less connection with the general matters committed by law to his control or supervision." Judge Hand, in Gregoire v. Biddle, supra, 177 F.2d 579, 581 (2d Cir. ...