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FORSYTH v. KLEINDIENST

February 14, 1978

KEITH FORSYTH
v.
RICHARD G. KLEINDIENST, Individually and as Attorney General of the United States, L. PATRICK GRAY, 3rd, Individually and as Acting Director, Federal Bureau of Investigation, JOHN N. MITCHELL, Individually and as former Attorney General of the United States, JOHN DOE and RICHARD ROE



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Plaintiff, Keith Forsyth, initiated this civil action in 1972 to recover damages in connection with the federal government's electronic interception of telephone conversations, which he claims violated his rights under 18 U.S.C. §§ 2510-2520 and the First, Fourth and Ninth Amendments of the Constitution of the United States. *fn1" The defendants remaining in this action *fn2" are former Attorney General of the United States John Mitchell, who authorized the wiretap, and two Federal Bureau of Investigation employees, who intercepted the conversations. The plaintiff bases his cause of action upon the undisputed facts that the wiretap placed upon the telephone of William Davidon was warrantless and without court approval, and that during this surveillance, conversations of the plaintiff were overheard and recorded. *fn3" Discovery in this case has been completed, although at the defendants' request many of the documents and briefs have been filed with the Court in camera. Presently before the Court are cross-motions for summary judgment on the issue of liability. Having heard oral argument, we now determine that both these motions will be denied on the ground that there exists a genuine issue of material fact.

 The defendants claim that they are entitled to summary judgment on the basis of the record for the following reasons:

 1. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 is not applicable to national security electronic surveillances;

 2. United States v. United States District Court, 407 U.S. 297, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972), should not be applied retroactively to give plaintiff a cause of action;

 3. The defendants have an absolute immunity in this action for damages; and

 On the other hand, the plaintiff contends that he is entitled to summary judgment on the following grounds:

 1. The electronic surveillance in question violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, as well as the Fourth Amendment;

 2. United States v. United States District Court, 407 U.S. 297, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972), should be given retroactive application; and

 3. The defendants have no absolute immunity and have failed to establish an affirmative defense of good faith.

 Material Facts As To Which There Is No Genuine Issue.

 The pleadings, answers to interrogatories and the deposition of former Attorney General Mitchell filed in this case contain the following material facts as to which there does not appear to be a genuine issue.

 In June, 1970, the Philadelphia office of the FBI learned from a member of the East Coast Conspiracy to Save Lives (ECCSL) that the group was planning to damage underground heating systems in Washington, D.C. to demonstrate its opposition to the war in Vietnam. At that time the FBI was also informed that ECCSL was responsible for several draft board raids. The FBI began an investigation into these alleged activities.

 On August 21, 1970, the same person informed the FBI that at least three people, including Professor William Davidon of Haverford College, had discussed the possibility of kidnapping Henry Kissinger. The Government was furnished with copies of letters in which the idea was considered. These letters were written by two members of ECCSL, Father Phillip Berrigan and Sister Elizabeth McAlister. This information was relayed to the Attorney General, Dr. Kissinger and Presidential Assistant John Ehrlichman in a memorandum by FBI Director J. Edgar Hoover on September 4, 1970. The Philadelphia office of the FBI was assigned primary responsibility for the criminal investigation and was directed to prepare a comprehensive report concerning ECCSL.

 On October 12, 1970, the Philadelphia office of the FBI requested the Department of Justice to evaluate the report it had prepared "for a prosecutive opinion." At that time the Philadelphia office was "considering electronic surveillance feasibility for William Davidon." On November 13, 1970, a Department of Justice report concluded that there was a "reasonably good prosecutable case against eleven individuals" with respect to the draft board case, but that there was "not sufficient evidence to obtain a conviction" for the conspiracy to kidnap Dr. Kissinger or to damage the utility system in Washington, D.C.

 On November 6, 1970, at the request of the FBI, Attorney General Mitchell authorized the wiretap on Davidon that is the subject of this lawsuit. This tap was placed and continued with one extension, until January 6, 1971. The sworn answers of FBI Special Agent Fields reveal that in the view of the Federal Bureau of Investigation, the electronic surveillance upon which plaintiff's conversations were overheard was instituted for the purpose of gathering intelligence-type information under circumstances where it was also anticipated that information of a criminal evidentiary nature might be obtained. He further stated that under the guidelines which had been issued to FBI field offices concerning electronic surveillance authorized by the Attorney General for national security intelligence gathering purposes, monitoring personnel were instructed to monitor and record conversations unless it was known that a particular individual speaking on the surveilled telephone line was a defendant in a federal criminal case or an attorney for a defendant in a federal case. With respect to the national security electronic surveillance on which plaintiff's conversations were overheard, neither the subject of that surveillance nor other individuals whose conversations were expected to be overheard were defendants or attorneys for defendants in a federal criminal case, and therefore no particular instructions were given the two FBI employees "to minimize the interception of communications not relevant to the alleged purposes for the interceptions." The plaintiff was overheard on three occasions.

 A federal grand jury in Harrisburg, Pennsylvania began hearing evidence on December 13, 1970 regarding a plan to destroy underground utility tunnels in Washington, D.C. and to kidnap Dr. Henry Kissinger. In 1971 true bills were found in connection with two indictments, the prosecution of which became known as the trial of the Harrisburg Eight.

 The Warrantless Electronic Surveillance In This Case Violated The Fourth Amendment.

 Since 1967, when the United States Supreme Court handed down its decision in Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), there has been little doubt that, except for certain well-delineated exceptions, *fn4" a warrant was necessary for electronic surveillance of criminal activity unrelated to the national security interest. Furthermore, since 1972 when the Supreme Court decided United States v. United States District Court, 407 U.S. 297, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972), there has been little doubt that a warrant was also necessary in matters involving the national security interest, except for surveillances based on threats to the national security involving foreign powers. *fn5" It follows, therefore, that the warrantless electronic surveillance placed on the telephone of William Davidon in November 1970 was unconstitutional. The memorandum by which the Attorney General personally authorized this wiretap claimed that it was necessary to protect the national security interest in connection with the activities of a domestic organization. The Government made no claim that a foreign power was involved. Since District Court, there is no question that such a warrantless electronic surveillance is unconstitutional. In this civil action for damages, wherein the plaintiff claims that he was overheard on the warrantless wiretap, the issue presented is whether the plaintiff is entitled to recover monetary damages under either 18 U.S.C. §§ 2510-2520 or the Fourth Amendment.

 District Court Should Not Be Given Nonretroactive Application.

 The defendants take the position that no liability on plaintiff's Fourth Amendment claim should be imposed in this civil litigation because under Chevron Oil v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971), District Court should be given only prospective application. *fn6" In Chevron Oil, the United States Supreme Court set out ...


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