search was made, however, is an adequate defense to a Bivens claim .

The question whether the defendants acted reasonably and in good faith is ultimately factual and, as such, one to be finally determined by the jury.

563 F.2d at 348.

Good faith is no defense to an injunctive action. Stanford Daily v. Zurcher, 550 F.2d 464 (9th Cir. 1977), rev'd on other grounds, Zurcher v. Stanford Daily, U.S.

98 S.Ct. 1970,

L. Ed. 2d

(1978).

Allred v. Scarczkopf, 573 F.2d 1146 (10th Cir. 1978) held that the district court had improperly excluded evidence that the defendant police officer's actions were predicated upon ordinances, statutes, and instructions given to him by his superiors and that he acted in good faith. The court reversed and remanded for a new

trial.

Reimer v. Short, 578 F.2d 621 (5th Cir. 1978) found that the district court had properly charged the jury that the defendant police officers would not be liable to plaintiff for their alleged harassment and searches of his business premises if they established they had a reasonable good faith belief that their actions were lawful and within the scope of their authority. Further, there was evidence to support the jury's finding of good faith after that date. It was on that date that the district court granted plaintiff's motion for return of his truck. Plaintiff took the order to the police department where he was told that "they couldn't read the judge's signature" and that they were not going to honor it. Plaintiff was made to wait in the hall for five hours after which time he was told the truck would not be released. It was then necessary for him to serve the defendants with a motion to show cause why they should not be held in contempt. Ten days after he presented them with the order the truck was released. However, they did not release plaintiff's vehicle identification plate, with the result that plaintiff's possession of the truck without the plate was technically illegal. The plate was not given to him until the date scheduled for argument on his second contempt motion

concerning the plate. The court stated:

Until confronted with the court
order, the jury could reasonably
find that they had acted in good
faith, subjectively and objec-
tively. After that order was
served, while their actions may
still have been from good motives,
that good faith could not have
been reasonable. All the evi-
dence leads to the conclusion
that this continued barrier to
Reimer's possession of the truck
was an unreasonable deprivation
of his property.

578 F.2d at 629. Therefore, the court remanded for
determination of damages.

2.

Unnecessary Force used in Making an Arrest 111

The courts appear to agree that the use of unnecessary force by a law enforcement officer in making an arrest can constitute a constitutional violation giving rise to a cause of action under section 1983. However, it is not clear which specific constitutional provision applies to these actions. Some courts find a Fourth Amendment112 violation while others find Eighth113

111. For cases discussing the use of deadly force in making an arrest see Wiley v. Memphis Police Dept., 548 F.2d 1247 (6th Cir. 1977), cert. denied; Mattis v. Schnorr, 547 F.2d 1007 (8th Cir. 1976), vacated sub nom.; Ashcraft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977); Jones v. Marshall, 528 F.2d 132 (2d Cir. 1975); Russ v. Ratliff, 538 F.2d 799 (8th Cir. 1976), cert. denied 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1976); Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978); Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977).

112. 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, 93 S. Ct. 602, 34 L. Ed. 2d 613 (1973); Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970); Davis v. Murphy, 559 F.2d 1098 (7th Cir. 1977).

113. Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972).

(cruel and unusual punishment), and Fourteenth Amend-
114
ment (due process) violations. In some cases the
court has not identified the specific constitutional
provision applicable.115

The Eighth Amendment provides "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."

The Eighth Amendment is applicable to the states through the Fourteenth Amendment. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Estelle v. Gamble stated:

114. Collum v. Butler, 421 F.2d 1257 (7th Cir. 1970); U.S. v. Delerme, 457 F.2d 156 (3d Cir. 1972); Davis v. Murphy, 559 F.2d 1098 (7th Cir. 1977).

115. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Linn v. Garcia, 531 F.2d 855 (8th Cir. 1976); Taken Alive v. Litzau, 551 F.2d 196 (8th Cir. 1977); Smith v. Spina, 477 F.2d 1540 (3d Cir. 1973). See also Polite v. Diehl, 507 F.2d 119 (3d Cir. 1974).

116. See generally I. Robbins and M. Buser, Punitive Conditions of Prison Confinement: An Analysis of Pugh v. Locke and Federal Court Supervision of State Penal Administration Under the Eighth Amendment, 29 Stanford L. Rev. 893 (1977); Comment, Confronting the Conditions of Confinement: An Expanded Role for Courts in Prison Reform, 12 Harv. Civil Rights Civil Liberties L. Rev. 367, 372-404 (1977).

429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L. Ed. 2d 251, 259 (1976). Sostre v. McGinnis, 442 F.2d 178, 191 (2d Cir. 1971)116a defined cruel and unusual punishment as that which is "barbarous" or "shocking to the conscience."

Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L.Ed.2d 711 (1976), involving corporal punishment in schools, traced the history of the Eighth Amendment and its treatment in the courts, concluding that the amendment was intended to protect persons convicted of crimes, but not others:

In light of this history, it is not surprising to find that every decision of this Court considering whether a punishment is "cruel and unusual" within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment. See Estelle v. Gamble, 429 U.S. 97 (1976) (incarceration without medical care); Gregg v. Georgia, 428 U.S. 153 (1976) (execution for murder); Furman v. Georgia, supra (execution for murder); Powell v. Texas, 392 U.S. 514 (1968) ($20 fine for public drunkenness); Robinson v. California, 370 U.S. 660 (1962) (incarceration as a criminal for addiction to narcotics); Trop v. Dulles, 356 U.S. 86 (1958) (plurality opinion) (expatriation for desertion)

These decisions recognize

that the Cruel and Unusual

116a. Cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740, and Oswald v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972).

Punishments Clause circumscribes
the criminal process in three
ways: First, it limits the
kinds of punishment that can be
imposed on those convicted of
crimes, e.g., Estelle v.

Gamble, supra; Trop v. Dulles,
supra; second, it proscribes
punishment grossly dispro-
portionate to the severity of
the crime, e.g., Weems V.
United States, supra; and
third, it imposes substantive
limits on what can be made
criminal and punished as such,
e.g., Robinson v. California,
supra. We have recognized
the last limitation as one to
be applied sparingly. "The
primary purpose of [the Cruel
and Unusual Punishments Clause]
has always been considered, and
properly so, to be directed at
the method or kind of punishment
imposed for the violation of
criminal statutes

"Powell

v. Texas, supra, at 531-532 (plurality opinion).

In the few cases where the Court has had occasion to confront claims that impositions outside the criminal process constituted cruel and unusual punishment, it has had no difficulty finding the Eighth Amendment inapplicable. Thus, in

Fong Yue Ting v. United States,
149 U.S. 698 (1893), the Court
held the Eighth Amendment inappli-
cable to the deportation of aliens
on the ground that "deportation is
not a punishment for crime." Id.,
at 730. .

430 U.S. at 666-68, 97 S.Ct. at 1410-11, 51 L. Ed. 2d at 727-28.

The Court then described in greater detail the situation of a person convicted of a crime: