official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.'" Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974) quoting Ex Parte Young, supra, 209 U.S. at 159-160, 28 S.Ct. 441. The fictional basis of Ex Parte Young also limits the relief that can be granted. Monetary recovery must come from the pocket of the individual officer and not the sovereign. Edelman v. Jordon, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). See generally C. Wright, Law of Federal Courts, § 48 (3d ed. 1976).

The possibility of being subjected to personal liability for money damages as a result of the performance of official duties necessitated the creation of a doctrine which would provide some degree of protection to the well-meaning public servant. The resulting doctrine of official immunity is premised upon

two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.

Scheuer v. Rhodes, supra, 416 U.S. at 240, 94 S.Ct. at 1688. (footnote omitted). Accord, Wood v. Strickland, 420 U.S. 308, 319,

95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Rowley

v. McMillan, 502 F.2d 1326, 1332 (4th Cir. 1974). Cf. Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).

The need to provide a remedy to the victim of governmental illegality thus comes in conflict with the considerations giving rise to the doctrine of official immu18. This is not to say that the law in this area originated with Ex Parte Young, supra. See Scheuer v. Rhodes, supra, 416 U.S. at 239 n. 4, 94 S.Ct. 1683. The development of the public

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nity. As Mr. Justice Harlan pointedly observed, there are

"two considerations of high importance which now and again come into sharp conflict-on the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities."

Barr v. Matteo, supra, 360 U.S. at 564-565, 79 S.Ct. at 1336. The doctrine of official

immunity represents the judicial resolution of those competing interests. Law enforcement agents do not enjoy an absolute immunity from suit despite the discretionary

nature of their duties "because of the belief that the benefit to society derived from the protection of personal liberties outweighs the detriment of perhaps deterring vigorous police action." Bivens v. Six Unknown, etc., Agents, supra, 456 F.2d at 1346.

The injustices occasioned by the doctrine of sovereign immunity gave rise to Ex Parte Young and the imposition on government officials of personal liability for monetary damages. The fear that this personal liability would unduly inhibit public servants from executing their official responsibilities gave rise to the doctrine of official immunity.18 In the context of law enforcement, this immunity is articulated in terms of a reasonable good faith belief in the legality of the conduct. Thus, "[t]he concept of the immunity of government officers from personal liability springs from the same root considerations that generated the doctrine of sovereign immunity." Scheuer v. Rhodes, supra, 416 U.S. at 239, 94 S.Ct. at 1688. Where, as is the case with the FTCA, the sovereign has waived its immunity, the policy considerations which justify immu

servants' defenses to monetary liability, however, has escalated with the increase in actions brought against government officials.

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nizing individual law enforcement officers are no longer applicable. See 2 F. Harper and F. James, The Law of Torts § 29.14 at pp. 1656-1657 (1956).

This has been recognized by other courts as well. The United States sought to raise the defense of immunity in an action brought under the negligence provisions of the FTCA by a person injured in the course of an FBI agent's efforts to foil an attempted act of air piracy. The district court ruled that the United States was not entitled to assert the immunity defenses of its agents. Downs v. United States, 382 F.Supp. 713, 749-751 (M.D.Tenn.1974). In reversing the trial court on other grounds, the Court of Appeals stated "[t]he prospect of governmental liability for the actions of law enforcement officers should not cause those officers less vigorously to enforce the law. The need for compensation to citizens injured by the torts of government employees outweigh whatever slight effect vicarious liability might have on law enforcement efforts." Downs v. United States, 522 F.2d 990, 998 (6th Cir. 1975).

To allow the government to benefit from a doctrine born of sovereign immunity would pervert the clear congressional directive to eliminate sovereign immunity from actions of this nature. As noted by the author of the 1974 amendment to the FTCA, Senator Percy, the effectiveness of a Bivens-type remedy is "severely limited" by the doctrine of official immunity. S.Rep. No. 93-469, 93d Cong., 1st Sess. 36. The promise of an effective remedy contained in the 1974 amendment to the FTCA would be largely illusory if the government could assert the immunity defense of its agents. Cf. Downs v. United States, supra, 382 F.Supp. at 750.

Concluding therefore that (1) the forcible nighttime entry into the plaintiff's apartment was in violation of her rights secured to her by the Fourth Amendment to the Constitution of the United States; and (2) the United States is not entitled, as a matter of law, to assert the immunity defense available to the individual defendants in an action brought under the Federal Tort

Claims Act, the plaintiff is entitled to judgment against the United States on the issue of liability.

An appropriate order will follow.