The opinion of the court was delivered by: McLAREN, District Judge.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendants' motion to
dismiss or, in the alternative, for summary judgment. The motion
to dismiss is denied; the motion for summary judgment is granted.
Plaintiff alleges that he was arrested on July 24, 1971 on a
warrant issued pursuant to a complaint that charged him with
illegally transferring a certain firearm to defendant Backer.
Said transfer allegedly took place on June 7, 1971, and the
charges were eventually dismissed when plaintiff proved that he
was out of the country on that date. Plaintiff alleges here that
his arrest violated rights guaranteed to him by the Fourth,
Fifth, Sixth, Ninth, Tenth and Fourteenth Amendments to the
United States Constitution. He further alleges that defendants
conspired to deprive him of these rights. It is alleged that a
claim arises under 42 U.S.C. § 1983 and 1985 and that
jurisdiction exists pursuant to 28 U.S.C. § 1331, 1332 and 1343.
Defendants' contention that this Court lacks subject matter
jurisdiction is without merit. Without deciding whether
jurisdiction exists under 28 U.S.C. § 1343 in the absence of
action under color of state law, subject matter jurisdiction
would exist here pursuant to 28 U.S.C. § 1331. Bell v. Hood,
327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Bivens v. Six
Unknown Named Agents, 409 F.2d 718, 720 (2d Cir. 1969), reversed
on other grounds, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971). The requisite jurisdictional amount is alleged and is not
contested by defendants.
The defendants contend that the action should be dismissed
because they are immune from suit as federal police officers.
Immunity has been granted to certain officials because of the
discretionary nature of their duties and the public interest in
performance by government employees without fear of suit. Barr v.
Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959);
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).
However, the Court is persuaded by the reasoning of Bivens v.
Six Unknown Agents, 456 F.2d 1339, 1342-47 (2d Cir. 1972) that
the defendants are not shielded by absolute immunity. In Bivens,
the court emphasized the threat to personal liberties that might
result if damage actions were removed as a deterrent to excesses
committed by police officers in the exercise of their functions.
It was also noted that local police officers do not have immunity
under § 1983 of the Civil Rights Act, 42 U.S.C. § 1983, and that
an absurd lack of symmetry would result were immunity granted to
federal officers under circumstances such as those present here.
This Court agrees, and dismissal pursuant to Fed.R.Civ.P. 12(b)
is accordingly denied.
This Court also agrees with Bivens, at 1347-48, that a good
faith and reasonable belief that an arrest was lawful constitutes
a valid defense to allegations such as those here. The Bivens
court stated that
"[t]he standard governing police conduct is composed
of two elements, the first is subjective and the
second is objective. Thus the officer must allege and
prove not only that he believed, in good faith, that
his conduct was lawful, but also that his belief was
reasonable. . . ."
Defendants have submitted affidavits in support of this good
faith and reasonable belief defense and move for summary judgment
under Fed.R.Civ.P. 56(b).
It appears from the affidavits that defendant Backer, acting as
an undercover agent, purchased certain guns on June 7, 1971 at
the Atlas Arms Company ("Atlas") which is partially owned by
plaintiff. At least two men, besides Backer, were present on that
occasion: one was Eric Semet; the other was not identified at
that time. That unidentified person assisted Semet in locating
parts to certain guns in which Backer expressed interest.
On June 11, 1971, Backer again met Semet at Atlas. Backer asked
Semet whether the individual who helped locate the parts four
days earlier was present. Semet reportedly stated that "Tasi" was
not there. On July 23, 1971 Backer telephoned Semet and arranged
a meeting at Atlas. In response to Backer's inquiry, Semet stated
that Tasi would be there.
Defendant Borcia states in an affidavit that on June 14, 1971,
he called Atlas and asked for Tasi. He was told that Tasi was not
there and that Tasi was the manager of Atlas. The firearms
licensee file of the Bureau indicated that Anastasius Tritsis was
the manager and president of Atlas.