(D.C. Civil Action No. 69-665) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
McLaughlin and Van Dusen, Circuit Judges and Green, District Judge. Van Dusen, Circuit Judge, concurring.
This appeal is taken from the dismissal as to all defendants of a complaint which sought damages against the district attorney and the chief of detectives of Allegheny County, (Robert Duggan and Edward G. Crone, respectively) and certain detectives, for the seizure by the detectives of films which they considered to be "obscene". Plaintiff Cambist here was the owner of distribution rights to a motion picture called "The Female". The film was seized from certain movie theaters that were showing it. The film was taken under the following circumstances. Detectives were sent to view the film at different locations. One, sent by his superiors, viewed all but 15 minutes, believed it violated Pennsylvania criminal statutes, arrested the manager of the theater and took custody of the film. Another, acting under orders of an assistant district attorney, viewed the film and decided that it violated criminal statutes of Pennsylvania. He also arrested the theater manager and took custody of the film. A third detective acted in response to a complaint from local police. After viewing a substantial portion of the film, he too concluded that it violated Pennsylvania criminal statutes. He took custody of the film and placed the manager under arrest. Plaintiff instituted an action alleging the illegal seizure of the film. The district court, 298 F. Supp. 1148, ordered defendants Duggan and Crone to return the film prints to plaintiff, after holding that the facts presented were not sufficient to determine the films as obscene. This order was complied with. Cambist then instituted this common law action for damages which it claimed resulted from the illegal search and seizure of the film.
It is generally settled principle of law that a district attorney is a "quasi-judicial officer", Commonwealth, ex rel. Specter v. Martin, 426 Pa. 102, 232 A.2d 729 (1967), and in the performance of duties imposed on him by law, he cannot be subjected to personal liability through a common law action. Pennsylvania law has, as a general principle, that quasi-judicial officers cannot be subjected to liability, civil or criminal, for any of their judicial acts, no matter how erroneous, so long as they act in good faith. McNair's Petition, 324 Pa. 48, 187 A. 498 (1936). See discussion 63 Am. Jur. 2d § 289. Federal courts have similarly held. See Bauers v. Heisel, 361 F.2d 581 (3 Cir. 1966). Cambist here refers to the language in Bauers v. Heisel which implied that not all acts of a district attorney should be immune. That case stated that "* * * the immunity of a prosecutor, however, is not without limitation; it is not absolute. The immunity of judges, from which immunity of prosecutors is derivative, does not extend to acts which are clearly outside their jurisdiction." This discussion in Heisel pertains to cases involving alleged violations of the Civil Rights Act, not common law tort actions. In such cases Heisel recognized a distinction that needs be observed between excess of jurisdiction, a circumstance which would not allow liability, as opposed to the clear absence of all jurisdiction over the subject matter, which could result in liability for the judicial official in Civil Rights circumstances. Robichaud v. Ronan, 351 F.2d 533 (9 Cir. 1965); Lewis v. Brautigam, 227 F.2d 124 (5 Cir. 1955). Even considering the possible civil rights problem here, no liability can be attributed to the prosecutor in our present case because he was not acting where he clearly had no jurisdiction. He was investigating an alleged violation of the laws of Pennsylvania, which was within his powers and duties, and the actions which he proscribed in this instance were such as he felt necessary to the enforcement of those laws. Obviously, this case in no way approaches the "clear absence of jurisdiction" standard required for possible liability on the part of the prosecutor.
As to liability on the part of the officers, a consideration of Restatement of Torts 2d, § 121, Comment 1, appears necessary. That states "A peace officer making an arrest without a warrant is protected in every case when he acts under a reasonable mistake as to the existence of facts which, under the rule stated in this Section, justify an arrest without a warrant. On the other hand, no protection is given to a police officer who, however reasonably, acts under a mistake of law other than a mistake as to the validity of a statute or ordinance." We must then determine what facts justify an arrest without a warrant. The rule in Pennsylvania is that "an officer may make an arrest without a warrant where he has probable cause to believe that a misdemeanor is being committed in his presence." Commonwealth of Pennsylvania v. Garrick, 210 Pa. Super. 124, 126, 232 A.2d 8 (1967). In the matter before us, the detectives watched the film after entering the premises as business visitors, and decided that on the facts as they viewed them, the film was obscene and in violation of 18 P.S. § 4524. Therefore, they seized the films and arrested the theater managers. Even though it was later found in Cambist Films, Inc. v. Duggan, 420 F.2d 687 (3 Cir. 1969) that these facts were not sufficient to classify this as an obscene film, it goes without question that the facts and circumstances available to the officers at the time of seizure were such as to provide an ordinary person with a reasonable belief that an offense was being committed. It was, at most, a mistake of fact by the officers in their actions, but this does not make them liable in tort under any standard. See Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213. Police officers are not expected to have a complete knowledge of the intricacies of case law as appellant might try to have us hold when he cites Smith v. Crumlish, 207 Pa. Super. 516, 218 A.2d 596 (1966). The officer is only expected to act in accord with the facts and circumstances of the given situation with which he is confronted.
Finally, for reasons previously discussed in respect to a district attorney's quasi-judicial status, he is not liable under these facts for actions of his agents and detectives. As noted previously, there is no liability for the prosecutor or the detectives, and there is no basis for attempting to create liability merely because one party here is the agent of the other.
The judgment of the district court will be affirmed.
VAN DUSEN, Circuit Judge, concurring.
I concur in the result reached by the foregoing opinion, but differ in the reasoning to be used to support the judgment for the Chief of Detectives of Allegheny County*fn1 and the detectives working under him.
The plaintiff, Cambist Films, Inc., previously instituted a suit (Civil No. 69-300) in the District Court for the Western District of Pennsylvania on March 17, 1969, against Robert W. Duggan, District Attorney for Allegheny County, Edward G. Crone, Chief of Detectives of Allegheny County, Joseph M. Loughran, District Attorney for Westmoreland County, and Edward Gordon, Chief of Detectives of Westmoreland County.*fn2 The plaintiff in that complaint only sought equitable relief; an injunction against the defendants and the return of the prints of its film. See Cambist Films, Inc. v. Duggan, et al., 298 F. Supp. 1148 (W.D. Pa. 1969), rev'd in part, 420 F.2d 687 (3d Cir. 1969).
On June 2, 1969, after the decision in the district court, the plaintiffs brought the present action against, among others, Crone and named Allegheny County detectives.*fn3 In the instant case, the plaintiff now claims damages.
Where a plaintiff has had an opportunity to seek damages in its earlier action, its failure to combine all of its claims, legal as well as equitable, which could have been asserted and concluded in the earlier action, is fatal and the county detectives were entitled to a judgment in their favor on the basis of the doctrine of res judicata.*fn4 For, as is stated by Professor Moore:
". . . where law and equity have been united and a litigant can present all his grounds for relief, whether legal or equitable, inconsistent, alternative or hypothetical, in a single action he should be held to have but one cause of action and final judgment on the merits is res judicata as to all matters, legal and/or ...