504 Hofstra Law Review [Vol. 5, 1977] has been the scope of immunity for the officials whose actions are under attack. The Supreme Court held in 1959 in Barr v. Matteo" that federal officials of subcabinet rank were absolutely immune from libel or slander liability for statements made within their line of duty. In Barr the plaintiffs, subordinate officials in the Office of Rent Stabilization, sued the Acting Director for libel because of a press release he had issued announcing his intention to suspend the plaintiffs for their participation in formulating a certain plan for the use of agency funds. The jury found for the plaintiffs and the judgment was affirmed by the court of appeals. The Supreme Court reversed. Quoting from an earlier decision in Spalding v. Vilas, which involved a libel suit against the Postmaster General, the Court noted: In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint." The Court further stated: It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government." It concluded: We think that under these circumstances a publicly expressed statement of the position of the agency head. . . was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively. . . . The fact that the action here taken was within the outer 37. 360 U.S. 564 (1959). 38. 161 U.S. 483 (1896). 39. 360 U.S. 564, 570 (1959) (quoting Spalding v. Vilas, 161 U.S. 483, 498 (1896)). 40. 360 U.S. 564, 571 (1959). Good Faith Defense perimeter of petitioner's line of duty is enough to render the privilege applicable. . . ." 505 Barr v. Matteo has been cited as establishing the doctrine of absolute immunity for "discretionary acts" by executive department officials. The doctrine was explained by Professor Louis Jaffe some years ago: [I]f the officer acts in an area where customarily he has discretion — that is, has a power and duty to make a choice among valid alternatives he is not held liable in damages even though in the case at hand he made a choice that was beyond his power, or indeed had no valid choice open to him at all." The doctrine was invoked in 1972 by the Second Circuit when the Bivens case was remanded to it." The Second Circuit's approach to the problem requires that a court first determine whether an official is acting within the "outer perimeter" of his or her line of duty and then decide whether the acts complained of were discretionary or not. Once it has been established that the officers were acting within the scope of their authority, in order to be immune they must show that they perform "‘discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority.'"" There are a number of difficulties with the doctrine, however. First, there is some discretion attached to almost every governmental function. Thus the crucial concept in the doctrine becomes impossible to define. As the Second Circuit said: "[W]ords such as 'discretion' are not particularly helpful."" Secondly, liability has attached to a wide range of activities of government officials who perform more than mere ministerial acts. Professor Jaffe explains: [T]here are areas, notably actions against police officers for false arrest, battery, and trespass, and actions for summary destruction of property and improper collection of taxes, where recovery has long been allowed, despite the exercise by the officer of more than a "merely ministerial" function. This is partic 41. Id. at 574-75. 42. Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv. L. REV. 209, 218 (1963). 43. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972). 44. Id. at 1342-43 (quoting Barr v. Matteo, 360 U.S. 565, 575 (1959)). 45. Id. at 1345. 506 Hofstra Law Review [Vol. 5, 1977] ularly clear in the case of police officers, who are called upon to make extremely difficult factual choices, and important, if unarticulated, policy decisions . . . .“ Thus the use of the "discretionary" concept is misleading and often states rather than explains the result. In recent years the Barr v. Matteo principle has played a very limited role in determining the scope of immunity for executive department officials. There are a number of reasons behind this development. Again, there are serious definitional and intellectual problems with the notion of "discretionary acts."" Additionally, the Supreme Court never fully adopted the reasoning of the Barr decision. Only four Justices joined in the opinion of the Court which declared federal officials absolutely immune. Justice Black concurred in the judgment only because he concluded that the statements complained of were "related more or less to general matters committed by law to [the defendant's] control and supervision."" Justice Black concluded that on the undisputed facts the defendant proved he was entitled to a qualified privilege since he was acting within the scope of his duties in issuing the statement in question, and his right to criticize other government employees was protected by the first amendment." Four other Justices dissented and would have affirmed the judgment for the plaintiff. 50 for In addition, Barr v. Matten involved libel and slander which was not a constitutional violation. In balancing the need for effective functioning of government against the assertion of a common law tort claim, a court might well conclude that the latter interest has to yield. But federal courts are bound to enforce the Constitution and to protect a citizen's constitutional rights against all those who would violate them, including government officials at every level. As a district court recently noted: "[A]lthough an executive official may be absolutely immune when monetary relief is sought in an ordinary tort action, courts must apply a different standard to a claim 46. Jatfe, supra note 42, at 218-19. 47. See text accompanying notes 44-46 supra. 48. Barr v. Matteo, 360 U.S. 564, 576 (1959) (Black, J., concurring). 49. Id. at 577. 50. In Paul v. Davis, 424 U.S. 693 (1976), the Supreme Court held that defamation actions do not rise to the level of a violation of a constitutional right. See also Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Inst., No. 74-1899 (D.C. Cir. June 28, brought under the Civil Rights Act for the deprivation of a constitutional right." Many claims against government officials may involve an overlap of common law tort claims and constitutional violations. For example, if a police officer uses excessive force against a person, the victim may sue for assault and for violation of section 1983," or if a police officer participates in an illegal break-in, the officer's conduct may constitute a trespass as well as a fourth amendment violation." In that situation the constitutional standard must apply." It is a rare case in which a government official is sued solely for a common law tort. Thus Barr v. Matteo has a limited role to play in the many cases brought under the civil rights acts. In 1973 in the case of Doe v. McMillan" the Supreme Court had occasion to reexamine the scope-of immunity for federal officials. In that case the plaintiffs brought an action against several members of Congress, members of their staffs and the Superintendent of Documents and the Public Printer because of the attempted publication of a special report which discussed, in part, the disciplinary problems of specifically named students in the District of Columbia school system. The Supreme Court upheld 51. Fralkowski v. Shapp, 405 F. Supp. 946, 954 (E.D. Pa. 1975). See also Donaldson v. O'Connor, 493 F.2d 507, 530 (5th Cir. 1974), aff'd in part, rev'd in part, 422 U.S. 563 (1975): "We have consistently held that the range of officials [sic] immunity available at common law do not apply in actions brought under § 1983." 52. Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963). 53. Williams v. Gould, 486 F.2d 547 (9th Cir. 1973). 54. See Hampton v. City of Chicago, 484 F.2d 602, 607-08 (7th Cir. 1973); Carter v. Carlson, 447 F.2d 358 (D.C. Cir. 1971), rev'd on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418 (1973); Theis, "Good Faith" as a Defense to Suits for Police Deprivations of Individual Rights, 59 MINN. L. Rev. 991 (1975). See also Sportique Fashions, Inc. v. Sullivan, 421 F. Supp. 302, 305 (N.D. Cal. 1976). Conversely, if the common law tort requires a particular mental component (ie., improper motive) that requirement will generally be read into and become an element of the § 1983 cause of action. See Tucker v. Maher, 497 F.2d 1309, 1315 (2d Cir. 1974); Williams v. Gould, 486 F.2d 547 (9th Cir. 1973). Some conduct may be actionable as a tort in state courts but may not rise to a violation of § 1983. See Paul v. Davis, 424 U.S. 693 (1976) (libel); Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970) (improper and negligent medical attention). The converse is also true. Some conduct may be actionable in federal court as a § 1983 violation or a constitutional tort even if there is no comparable state law violation. See Strickland v. Inlow, 519 F.2d 244 (8th Cir. 1975), on remand from Wood v. Strickland, 420 U.S. 308 (1975)(procedural due process violation); Butler v. United States, 365 F. Supp. 1035 (D. Hawaii 1973)(first amendment violation). If the two causes of action overlap, however, the same mental component (whether malice, wilfullness or negligence) will generally be required for both. See Carter v. Carlson, 447 F.2d 358 (D.C. Cir. 1971), rev'd on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418 (1973); Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970). But see Bryan v. Jones, 530 F.2d 1210 (5th Cir. 1976). 55. 412 U.S. 306 (1973). 508 Hofstra Law Review [Vol. 5, 1977] the absolute immunity of the legislators involved but, contrary to Barr v. Matteo, it did not grant blanket immunity to the Superintendent of Documents and the Public Printer even though they were high executive department officials sued for invasion of privacy, a tort akin to libel and slander. In its decision the Court explained the limitations of its Barr ruling as follows: In the Barr case, the Court reaffirmed existing immunity law but made it clear that the immunity conferred might not be the same for all officials for all purposes. . . . Judges, like executive officers with discretionary functions, have been held absolutely immune regardless of their motive or good faith . . . But policemen and like officials apparently enjoy a more limited privilege. . . . Also, the Court determined in Barr that the scope of immunity from defamation suits should be determined by the relation of the publication complained of to the duties entrusted to the officer... Because the Court has not fashioned a fixed, invariable rule of immunity but has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens, there is no ready-made answer as to whether the remaining federal respondents - the Public Printer and the Superintendent of Documents should be accorded absolute immunity in this case." After considering the functions of the Superintendent of Documents and the Public Printer, the Court concluded: [F]or the purposes of the judicially fashioned doctrine of immunity, the Public Printer and the Superintendent of Documents are no more free from suit in the case before us than would be a legislative aide who made copies of the materials at issue and distributed them to the public at the direction of his superiors. . . . The scope of inquiry becomes equivalent to the inquiry in the context of the Speech or Debate Clause, and the answer is the same. The business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating. But when they act outside the "sphere of legitimate legislative activity". . . they enjoy no special immunity from local laws protecting the good name or the reputation of the ordinary citizen."7 56. Id. at 319-20 (citations omitted).. 57. Id. at 324 (citations omitted). |