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BURKHART v. SAXBE

August 22, 1984

KATHERINE W. BURKHART, et al.
v.
WILLIAM SAXBE, et al.



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 The primary issue before the court is whether John N. Mitchell is liable in damages to persons whose conversations were overheard during non-consensual telephone wiretaps that were authorized by him as "national security" surveillances in his capacity as Attorney General of the United States. The parties have filed cross motions for summary judgment and agree that there are no genuine issues of material fact in dispute.

 The two wiretaps in question, one on the telephone of William Davidon, the other on the telephone of the Black Panther Party, were authorized, installed, implemented and terminated more than a year prior to the decision in United States v. United States District Court, 407 U.S. 297, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972) (hereafter referred to as " Keith "). By the time Keith was decided on June 19, 1972, the wiretaps at issue had long since been terminated (at least as of February 10, 1971). In Keith, the Supreme Court held for the first time that a wiretap surveillance, even when authorized by the Attorney General for "domestic national security purposes," required the issuance of a judicial warrant before installation of the wiretap.

 In Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) (citations and footnote omitted), the Supreme Court announced a rule of law that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." The Court further stated:

 
Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful.

 Id. (footnotes omitted).

 In Forsyth v. Kleindienst, 729 F.2d 267 (3d Cir. 1984) (Forsyth II), Circuit Judge Weis, in dissent, *fn1" opined that former Attorney General John N. Mitchell was entitled, at least, to the type of "qualified immunity" described in Harlow, and on the basis of the record, entitled to summary judgment in his favor. *fn2" Primarily for the reasons so clearly set forth by Judge Weis in Forsyth II, I conclude, on the basis of the record established in this case that the defendant, John N. Mitchell, is entitled to qualified immunity and that summary judgment should be entered in his favor. *fn3"

 This case and the Forsyth case have been the subject of several published opinions in both the district court and the court of appeals. See Burkhart v. Saxbe, 448 F. Supp. 588 (E.D. Pa. 1978), aff'd in part and remanded sub nom. Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979), cert. denied, 453 U.S. 913, 101 S. Ct. 3147, 69 L. Ed. 2d 997 (1981) (Forsyth I); Forsyth v. Kleindienst, 447 F. Supp. 192 (E.D. Pa. 1978), aff'd in part and remanded, 599 F.2d 1203 (3d Cir. 1979), cert. denied, 453 U.S. 913, 101 S. Ct. 3147, 69 L. Ed. 2d 997 (1981) (also cited as Forsyth I because the court of appeals decided both cases in a single opinion); Forsyth v. Kleindienst, 551 F. Supp. 1247 (E.D. Pa. 1982), stay granted, 700 F.2d 104 (3d Cir. 1983), aff'd in part, dismissed in part, petition for mandamus denied, 729 F.2d 267 (3d Cir. 1984) (Forsyth II). Consequently, only a few essential facts need be reiterated.

 I initially ruled that a full evidentiary hearing was required to determine

 
(1) whether the wiretaps in question were conducted for national security purposes or solely for the purpose of investigating criminal or political activity; (2) whether, even if conducted for national security purposes, the defendants are immune from any liability for their failure to secure a warrant in compliance with the fourth amendment and (3) whether, in any event, this surveillance was conducted in a reasonable manner under the fourth amendment as interpreted in Berger v. New York, supra.

 Burkhart, 448 F. Supp. at 610. The court of appeals' decision directly addressed only the issue of absolute immunity: "We hold that the Attorney General will be absolutely immune from suit for his decision to authorize the warrantless electronic surveillances only if his decision was made in performance of a function that is intimately related to the judicial process." Forsyth I, 599 F.2d at 1217.

 In Forsyth II, the court of appeals ruled that the former Attorney General had not established a right to absolute immunity as to the Davidon wiretap, under its formulation set forth in Forsyth I ; namely, he had not proved that the wiretap was for "a function that is intimately related to the judicial process." See Forsyth I, 599 F.2d at 1217. Although theoretically in the Burkhart case there could be different evidence as to the purpose of the Davidon wiretap, it would be a strange result to find absolute immunity in Burkhart and not in Forsyth where the overheard conversations for which damages are sought arose out of the same wiretap authorization on the telephone of William Davidon. In any event, to the extent the issue of absolute immunity may still be open, under the Forsyth I test, there is clearly no absolute immunity. The former Attorney General has always taken the position that both the Davidon and Black Panther Party wiretaps were for "national security" and not for criminal investigative purposes. *fn4" Because I conclude that the former Attorney General is entitled to qualified immunity as a complete defense to this action, it becomes, in any event, unnecessary to decide the issue of absolute immunity.

 On the present motion for summary judgment, defendant John N. Mitchell relies solely on the contention that under Harlow he has established all that is necessary to come within the protection of a qualified immunity. I fully agree. In Harlow the Supreme Court held:

 
Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional ...

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