reflects Senator Percy's "intention to make the good faith defense unavailable to the United States in claims arising under § 2680(h)." According to plaintiff (Appellee's Br., p. 10) since the committee report discusses federal liability as arising "whenever" federal law enforcement agents commit "any" of the listed intentional torts, "[t]he application of the words *** to these torts without reference to specific defenses suggests unconditional liability on the part of the United States."

By attempting to read the collective Congressional mind as adopting Senator Percy's preliminary views in the absence of any language in the statute or legislative history indicating such an identity of position, plaintiff has engaged in a degree of clairvoyance that we are unable to match. We can only read the Senate report as it is written.

As we noted in our opening brief (pp. 34-35 n. 21), while Senator Percy offered two reasons in support of his proposal, the Senate upon subsequent plenary consideration made no mention of the purported ease by which liability could be averted through the "good faith and reasonable belief" defense. In creating a remedy against the United States paralleling that already available against federal law enforcement agency personally, the Senate report notes that such an additional remedy was needed because "Federal agents are usually judgment proof * * * S. Rep. No. 93-588, supra, at. 3. It was the greater financial responsibility of the Government that concerned Congress..

11/ (continued) Amendment]" (Appellee's Br., p. 10), plaintiff
does not state where it was "published. 11 In our opening brief
(pp. 38-39) we showed that the "memo" never became part of the
legislative record, and that there is no evidence that the docu-
ment represented the view of a single Senator or Representative,
much less the full Congress.

The failure of Congress to direct its attention to the "good faith and reasonable belief" defense does not bespeak a negative implication that the defense should not be available to the United States. Indeed, if forced to specualte, we believe that the most reasonable interpretation is that after further consideration Congress as a whole determined that the Government should be liable 12/ only when federal agents engaged in willful or abusive conduct. Congress most probably, and we submit rightly, believed that the United States should not be held liable because a law enforcement officer makes an honest error in assessing "probable cause;" an area of the law that taxes the wisdom of the most able of courts

and jurists. The existence of a "good faith and reasonable belief" 13/ defense is compatible with that goal.

12/ Although Senator Percy did comment disfavorably about the "good faith and reasonable belief" defense, the thrust of his statement concerns the need to provide an FTCA remedy for individuals who suffer harm from "deliberate violence and terrorism at the hands of Federal agents ***." S. Rep. No. 93-469, supra, at 36. Allowing the United States to raise the "good faith and reasonable belief" defense would obviously not preclude victims of "deliberate violence or terrorism" from recovering since such abusive conduct would not be undertaken in "good faith" or with a "reasonable belief in its legality."

13/ Plaintiff speculates (Appellee's Br., pp. 11-13) that precluding the United States from raising the defense will: "effects of improving federal employee morale" and will increase "governmental effectiveness by freeing federal employees from worry of personal liability * * *; and (2) since the United States alone is likely to be held liable, its agents "undoubtedly * * * will be advised to exercise the "due care" necessary to protect individual rights."

11

First, it is not the practice of the United States to encourage its law enforcement officers to act with less than "due care' for the rights of individuals. But honest mistakes as to the sufficiency of "probable cause, or the need for a warrant will from time to time occur. Many times these "honest mistakes" do not result from less than "due care taken by federal peace officers, (footnote continued next page)

Moreover, the language relied upon by plaintiff, 1.e., that liability would arise whenever Federal agents commit any of the listed intentional torts, does not support her position that the "good faith and reasonable belief" defense is unavailable to the United States. As we have repeatedly emphasized, the defense is a "privilege", which, if successfully established, denies the existence of any tortious conduct.

All that we seek here is the opportunity to prove that the FBI agents whose conduct forms the basis of plaintiff's suit, did not engage in tortious conduct because they acted with a "good faith and reasonable belief" in the legality of their conduct.

13/ (continued) but reflects shifting judicial views as to whether in any particular case there was "probable cause" to make an arrest

or search.

Second, plaintiff presupposes that by precluding the United States from raising the defense, potential plaintiffs will take the easier course and sue under the FTCA rather than bring an action against the agents individually. For all practical purposes, this would result in making the action against the United States exclusive. That, however, would not comport with the congressional design.

At the same time the bill that eventually was adopted to amend the FTCA was introduced, the Department of Justice, in cooperation with Senator Hruska, introduced a competing measure. S. Bill 2558, 93d Cong., 1st Sess., 119 Cong. Rec. 33494 (1973). The Administration bill sought to make the liability of the United States exclusive. The enacted bill, however, does not address the exclusibility question. In this regard, the Attorney General has recently proposed legislation that would expand the basis upon which the United States can be held liable for the conduct of its employees, and, among other things, would make the remedy against the United States exclusive of any other civil action or proceeding against_the_employee. H.R. 9219, 95th Cong., 1st Sess. (1977); S. 2117, 95th Cong., 1st Sess. (1977).

See

CONCLUSION

For the foregoing reasons and those stated in our opening

brief, the judgment of the district court should be reversed.

I hereby certify that on this 18th day of November, 1977, I caused the foregoing Reply Brief For Appellant to be served upon

opposing counsel, by mailing copies, postage prepaid, to:

John D. Grad, Esquire

108 North Columbus Street
Post Office Box 1226

Alexandria, Virginia 22313

о

Paul Blankenstei

PAUL BLANKENSTEIN (202) 739-3469

Attorney.