text:
    No. 80-1160.
    Hollywood Marine, Inc., et al. v. United States.
   C. A. 5th Cir. Motion of petitioner Hollywood Marine, Inc., for leave to submit the Rule 28.1 listing under seal denied. Certiorari denied.

Justice Rehnquist,

dissenting.

Petitioner Hollywood Marine is engaged in the business of transporting petroleum cargo by barge. Its barges are towed by tugboat operators who are in no way associated with petitioner except by reason of the contract between the two for services to be performed by the tugboat operator. • Under such contract, the tugboat operator exercises complete control over the method and manner of performing the towing operations, including all decisions to be made as to questions of navigation.

On August 5, 1976, a barge owned by petitioner discharged over 2,000 gallons of oil into the Intracoastal Waterway in Texas. The spill occurred as a result of damage sustained by the barge while it was under the control of a tugboat operator. The spill was cleaned up by the Coast Guard at a total cost to the United States of $61,816.85. Pursuant to §§311 (f)(1), (n), of the Federal Water Pollution Control Act, as added, 86 Stat. 866 and 869, 33 U. S. C. §§ 1321 (f) (1), (n), the United States brought this suit to recover from petitioner the costs incurred during the cleanup. Under § 1321 (f)(1), the owner or operator of a discharging vessel is liable for the costs of cleaning up an oil spill except

“where an owner or operator can prove that a discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States Government, or (D) an act or omission of a third party without regard to whether any such act or omission was or was not negligent, or any combination of the foregoing clauses . . . (Emphasis added.)

Petitioner’s defense to the Government’s action was that the oil spill was caused by an act or omission of its independent contractor, the tugboat operator, and that the tugboat operator was a “third party” under § 1321 (f) (1). The District Court sustained the defense, but the United States Court of Appeals for the Fifth Circuit reversed. 625 F. 2d 524 (1980). The Court of Appeals relied on its earlier decision in United States v. LeBeouf Brothers Towing Co., 621 F. 2d 787, rehearing denied, 629 F. 2d 1350 (1980). In LeBeouf, the Court of Appeals concluded that the third-party defense contained in § 1321 (f)(1) must be narrowly interpreted. The statute’s scheme for preventing and cleaning up oil spills would be undermined if barge owners could escape liability merely by hiring out their operations to tugs and independent contractors. The term “third party” was intended to refer to a complete outsider (e. g., a colliding vessel or a vandal), not an independent contractor whom the vessel owner was responsible for hiring in the first place.

While no one can say that the decision of the Court of Appeals places a wholly unreasonable interpretation on the language contained in § 1321 (f)(1), that court itself stated that the term “third party” must be narrowly interpreted. The court’s interpretation, however, is not supported by the plain language of the statute, which in its express terms provides a defense whenever the discharge is the result of an act of a “third party.” The statute is entirely silent as to what judicial refinements, if any, were intended to be placed on the term “third party.”

Because the Federal Water Pollution Control Act is legislation of vital importance, and the furnishing of oil for the country’s economy is likewise of vital importance, the question presented will continue to arise. The Court of Appeals’ interpretation is at odds with the decision reached by the District Court in Tug Ocean Prince, Inc. v. United States, 436 F. Supp. 907 (SDNY 1977), aff’d in part and rev’d in part on other grounds, 584 F. 2d 1151 (CA2 1978), cert. denied, 440 U. S. 959 (1979), where on almost identical facts the Government’s claim against a barge owner was dismissed because the owner was found not to be responsible for the oil spill.

There is no question that either the barge owner or the tug operator is liable for reimbursement to the Government for expenses incurred by the Coast Guard in cleaning up the oil spill. The Court of Appeals has decided that it should be the barge owner, while the District Court for the Southern District of New York has implicitly decided that it should be the tugboat operator. It seems to me that the Court of Appeals has supplied a good deal of gloss to the statutory language in reaching the result it has; perhaps it is justified in so doing, but certainly it has greatly narrowed the enacted language of Congress on the subject. Since it clearly was not the policy of the Federal Water Pollution Control Act to prohibit the movement of oil in barges, but simply to fix responsibility as to which segment of the oil transportation industry should be responsible for reimbursement to the Government for the cost of cleaning up spills, I do not think this is the type of case in which the Court should await a conflict between two Courts of Appeals to resolve the question in point. Though it cannot be said with certainty on the basis of this record, it seems highly probable that contracts such as this, as well as the insurance coverage of the various parties, depend on the way this “third party” exception is construed. Insurance policies and contracts, unlike actual collisions, are frequently matters which are entered into consensually for a period of months or years in reliance upon one or another construction of applicable law. This factor is sufficiently important, when combined with the recognized importance of the enterprise being conducted and the evil at which the legislation is aimed, to justify the Court granting certiorari and giving the issue plenary consideration' at this time.


source: Caselaw Access Project

author: Justice Brennan,

license: Public Domain

text:
    No. 80-1163.
    Trapper et al. v. North Carolina.
   Ct. App. N. C. Certiorari denied.

Justice Brennan,

dissenting.

Stone v. Powell, 428 U. S. 465 (1976), held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id., at 494 (footnote omitted). The effect of this holding was to make this Court, on direct review, the only federal forum available to the accused to monitor state-court compliance with the Fourth Amendment. I dissented in that case and reminded my Brethren that “institutional constraints totally preclude any possibility that this Court can adequately oversee whether state courts have properly applied federal law.” Id., at 526. “[0]ur certiorari jurisdiction is inadequate for containing state criminal proceedings within constitutional bounds,” because “federal review by certiorari in this Court is a matter of grace, and it is grace now seldom bestowed at the behest of a criminal defendant.” Id., at 534. While the lower federal courts by way of habeas corpus are better suited than are we on direct review to assure state-court compliance with Fourth Amendment requirements, we are now duty bound by Stone v. Powell to fulfill this monitoring function. The denial of cer-tiorari in this case demonstrates, however, that the Court will not discharge that duty, because the petition presents a substantial issue whether the North Carolina courts properly applied the Fourth Amendment. I, therefore, dissent from the denial of certiorari and would set this case for argument.

I

Petitioners were arrested for various crimes connected with the possession, sale, and delivery of marihuana. Deputy Sheriff Charlie Carawan, of Hyde County, N. C., first met petitioner Lombardo two years prior to his arrest when Lom-bardo purchased property about one-half mile from Cara-wan’s home. App. to Pet. for Cert. 13. Lombardo’s property is “located adjacent to a paved, rural road and adjacent to the main stream of Fortescue Creek” which is connected to the Intracoastal Waterway. Id., at 13-14. Improvements were made on the property, including construction of rock driveways and a metal gate.

Several events caused Carawan to become suspicious of activities on the Lombardo property. First, “Carowan [sic] began to receive reports from some of his acquaintances in the neighborhood that they had begun to hear the sounds of heavy truck and boat engines on and near the Lombardo property,” sounds which were “unusual in that area.” Id., at 14. In addition, on December 21, 1978, Carawan assisted a boat which was stuck in the mud bottom of Fortescue Creek about one mile from the Lombardo property. Based on his knowledge of the channels of the creek and of the prevailing winds that day, Carawan disbelieved the story of the boat’s skipper that he had become disabled in the Pungo River and then drifted into the creek where he ran aground. Id., at 1A-16. Sometime thereafter, Carawan motored his small boat near the Lombardo property to observe activities thereon. While doing so, he heard two rifle shots which he believed came from the Lombardo property, one of which apparently passed near him. Id., at 16.

These events led Carawan to suspect that the Lombardo property was being used for marihuana smuggling. Id., at 16-17. Accordingly, Carawan arranged for two state troopers to be stationed east and west of the intersection of the rural paved road leading to the Lombardo property and U. S. Highway 264. Id., at 17. On the night of January 13, 1979, Carawan secluded himself 50 yards from the Lombardo gate and observed the property until about midnight, when a truck which appeared to be heavily loaded left the Lorn-bardo property. Id., at 17-18. Carawan followed the truck past his own home, where he left his personal car and took his patrol car. He also radioed the two state troopers who were stationed on U. S. Highway 264. After following the truck, which was being driven by petitioner Trapper, Cara-wan and the state troopers eventually stopped it. Id., at 18. Upon reaching the truck, the two state troopers and Carawan smelled marihuana. Id., at 19. Trapper was then arrested and one of the troopers left for Swan Quarter to obtain a warrant to search the truck. Ibid. The trooper returned at 1:40 a.m. on January 14, 1979, with a warrant. The search of the truck revealed approximately 4,000 pounds of marihuana. Carawan then obtained a warrant “to search the Lombardo double-wide house trailer for marijuana,” and “the Lombardo house and curtilage, including a metal storage building was searched and ... a large quantity of baled and loose marijuana was found and seized from the aforesaid metal building.” Id., at 19-20.

Prior to trial, petitioners moved to suppress the evidence seized during the two searches on Fourth Amendment grounds. Their motion to suppress was denied. Petitioners then pleaded guilty to various marihuana-related crimes and received suspended sentences. They subsequently appealed the trial court’s ruling on the suppression motion to the North Carolina Court of Appeals, which affirmed the trial judge. 48 N. C. App. 481, 269 S. E. 2d 680 (1980). The court, taking judicial notice that “Hyde County is on the coast of North Carolina in an area which is regularly used by smugglers of marijuana,” id., at 486, 269 S. E. 2d, at 683, held that Carawan, as an experienced law enforcement officer, had “reasonable suspicion” that a crime was being committed and thus was authorized to conduct a Terry stop of the truck. Terry v. Ohio, 392 U. S. 1 (1968); see Delaware v. Prouse, 440 U. S. 648 (1979). The court further concluded that the stop was reasonable in extent and time, and that when the officers smelled marihuana from their outside inspection of the truck, they had probable cause to arrest Trapper and to obtain a warrant to search the truck. The court also held that the marihuana discovered in the truck created probable cause to obtain a warrant to search the Lombardo premises.

The Supreme Court of North Carolina subsequently dismissed petitioners’ appeal, finding that it did not present a substantial constitutional question. This petition followed.

II

Petitioners challenge the ruling of the North Carolina Court of Appeals on two grounds: (1) that the stop of the truck was illegal as not based on reasonable suspicion, resting on objective articulable facts, that the driver was involved in criminal activity; and (2) that the search of the Lombardo property was unlawful since the warrant authorizing it was issued pursuant to an affidavit which itself was premised on illegally seized evidence. Petitioners’ second argument depends entirely on the validity of the first.

The first argument has substantial merit. The reasons advanced by Carawan as justification for stopping the truck hardly amounted in the aggregate to objective articulable facts leading to reasonable suspicion that individuals associated with the Lombardo property were engaged in criminal activity. See Brown v. Texas, 443 U. S. 47, 51 (1979). Boat and truck noises and the presence of a locked metal gate across the Lombardo premises are fully consistent with lawful activity. Similarly, the grounding of the boat in Fortescue Creek occurred over one mile from the Lombardo premises. Even if Carawan totally disbelieved the skipper’s story of how the boat came to be grounded, there is no basis for linking the boat to the Lombardo premises. Moreover, the fact that Hyde County, N. C., may be an area frequented by marihuana smugglers is of no significance in the absence of ar-ticulable facts linking the Lombardo premises to marihuana smuggling. See Ybarra v. Illinois, 444 U. S. 85 (1979); United States v. Mendenhall, 446 U. S. 544, 572 (1980) (White, J., dissenting).

The only arguably objective fact of criminal activity was the firing of two rifle shots, which may have occurred as long as 24 days before the arrest. However, if Carawan believed that the shots were directed at him, it is hard to understand why he took no immediate action. Nor is there any indication how Carawan believed those shots to be linked to criminal activity, particularly since Lombardo had previously told Carawan that he bought the land for hunting purposes. The record before us is simply too ambiguous on the purpose, origin, and date of the shots to assess the incident properly in terms of whether Carawan had a reasonable suspicion that individuals on the Lombardo premises were engaged in criminal activity on January 13, 1979. This is precisely the type of ambiguity that a hearing before a federal habeas court is ideally designed to resolve. But since Stone v. Powell effectively eliminated federal habeas corpus review of Fourth Amendment claims, this Court has no choice but to decide petitioners’ nonfrivolous constitutional claims presented in this case on the record as it comes to us from the state courts.

If a federal habeas forum were available to petitioners, I would not hesitate to vote to deny certiorari and leave to a habeas court the burden of resolving any ambiguity in the key facts. Moreover, the lower federal courts might well determine that the state courts committed constitutional error, thereby obviating the need for review in this Court. However, since Stone v. Powell saddles this Court with the duty of providing the only federal forum for decision of Fourth Amendment claims, we are obligated to decide cases on direct review which we might otherwise deny. This is such a case because there is a substantial question whether Carawan had reasonable suspicion to stop Trapper’s truck.

Justice Stewart also dissents from the denial of certiorari.


text:
    No. 80-1277.
    Smith, Reformatory Superintendent v. Brown.
   C. A. 6th Cir. Certiorari denied.

The Chief Justice and Justice Powell would grant certiorari.


author: Justice Rehnquist,

text:
    No. 80-1237.
    Uvalde Consolidated Independent School District et al. v. United States.
   C. A. 5th Cir. Certio-rari denied.

Justice Rehnquist,

dissenting.

In this case, the Attorney General has filed a complaint under § 2 of the Voting Rights' Act of 1965, 79 Stat. 437, as amended in 1975, 42 U. S. C. § 1973, alleging that petitioner School District’s at-large system of electing members “ ‘has been implemented with the intent and purpose of causing . . . irreparable injury to Mexican-American voters ... by effectively and purposefully precluding them from meaningful access to the political process ....’” 625 F. 2d 547, 548-549 (CA5 1980). The complaint further alleges:

“[T]he seven member Board of Trustees of the Uvalde Consolidated Independent School District is elected at-large ;
“approximately fifty percent of the population of the school district is Mexican-American, but Mexican-American voters’ residences are concentrated in one part of the City of Uvalde;
“only one Mexican-American has ever been elected to the Board of Trustees and currently no Mexican-Americans serve on the Board; []
“voting is normally along racial lines;
“the Board has discriminated against Mexican-Americans in the past by operating intentionally segregated elementary schools and is unresponsive to the needs of the Mexican-American community;
“as a result of the school district’s election system, Mexican-Americans have less opportunity than ‘whites’ to participate in the political process and to elect candidates of their choice to the Board.” Id., at 549 (footnote omitted).

The United States District Court for the Western District of Texas dismissed the suit for failure to state a claim upon which relief could be granted. 461 F. Supp. 117 (1978). It concluded that the Fifteenth Amendment, upon which § 2 of the Act rests, applies only to practices which directly affect access to the ballot and is thus not available to challenge at-large election districts on the basis of so-called “vote dilution.”

The Court of Appeals reversed, finding that respondent had stated a cause of action under the Fifteenth Amendment. It canvassed the various opinions in Mobile v. City of Bolden, 446 U. S. 55 (1980), and concluded that a majority of this Court had held that the Fifteenth Amendment prohibits not just the actual prevention or hindrance of people from voting, but also purposeful vote dilution. ’The Court of Appeals, however, did not rest its decision on that ground alone. It looked to the 1975 amendment of § 2. The court held that even if the Fifteenth Amendment does not proscribe at-large voting districts purposefully adopted to dilute the voting strength of minorities, the Fourteenth Amendment clearly does. According to the court, when Congress, pursuant-to its authority to enforce the guarantees of the Fourteenth Amendment, extended § 2 to protect the right to vote of linguistic minorities, it did so cognizant of the problem of vote dilution and intended to incorporate the broad reach of the Fourteenth Amendment into § 2 of the Act. Thus, in the court’s view, respondent had stated a cause of action under § 2 of the Act as amended. Judge Hill concurred on the grounds that it was unnecessary to determine whether the Fifteenth Amendment applies to the voting practices alleged in the complaint, because the court properly found that the 1975 amendment incorporated the Fourteenth Amendment.

Because I believe that the Court of Appeals has misread the language, holding, and spirit of this Court’s decision in Bolden, and has misconstrued the congressional purpose behind the 1975 amendment, I dissent from the denial of the petition for certiorari. In the first place, as I read the plurality decision in Bolden, it held that the Fifteenth Amendment proscribed only the denial or the abridgment of the right to vote: When blacks "register and vote without hindrance,” the provisions of the Fifteenth Amendment are thus satisfied. 446 U. S., at 65. In contrast to the Fourteenth Amendment, there is nothing in the Fifteenth Amendment which prohibits at-large election districts. See Beer v. United States, 425 U. S. 130, 142, n. 14 (1976) (observing that “[t]here is no decision in this Court holding a legislative apportionment or reapportionment violative of the Fifteenth Amendment”). Because the Attorney General does not allege in this case that Mexican-Americans have been prohibited or discouraged from voting, I do not believe that the Attorney General has stated a cause of action under the Fifteenth Amendment and, consequently, § 2 of the Voting Rights Act.

With respect to the 1975 amendment, I do not view that amendment as changing the substantive law of § 2. The purpose of the change was to extend § 2 protections to a new group of persons, namely, members of language minorities such as Mexican-Americans. See S. Rep. No. 94-295, p. 24 (1975) (the amendment was made to “broaden [the Act’s] special coverage to new geographic areas . . .”). Congress based the addition to § 2 on its power to enforce the guarantees of the Fourteenth Amendment in order to ensure the constitutionality of the change, not to allow language minorities to challenge at-large voting districts on grounds of vote dilution. The legislative history reveals that Congress was concerned about the possibility that certain language minority groups might not be considered members of a “race or color” group protected under the Fifteenth Amendment. Thus, Congress based the 1975 “expansion amendment” on both the Fourteenth and Fifteenth Amendments in order to “doubly insure the constitutional basis for the Act.” Id., at 47-48. In sum, the Court of Appeals quite clearly erred in concluding that the 1975 amendment to § 2 incorporates the Fourteenth Amendment’s prohibition of purposeful vote dilution. Even as amended, § 2 simply does not permit the Attorney General to bring suits challenging at-large electoral systems.

Moreover, even if § 2 does incorporate the prohibitions of the Fourteenth Amendment, I do not believe that the Attorney General’s allegations are sufficient to survive a motion to dismiss. The plurality opinion in Mobile v. City of Bolden, supra, observed that the Court of Appeals there held that a plaintiff may establish purposeful discrimination by adducing evidence that satisfies the standards announced in its earlier decision in Zimmer v. McKeithen, 485 F. 2d 1297 (CA5 1973). We rejected that view:

“That approach, however, is inconsistent with our decisions in Washington v. Davis, [426 U. S. 229 (1976)], and Arlington Heights [v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977)]. Although the presence of the indicia relied on in Zimmer may afford some evidence of a discriminatory purpose, satisfaction of those criteria is not of itself sufficient proof of such a purpose. The so-called Zimmer criteria upon which the District Court and the Court of Appeals relied were most assuredly insufficient to prove an unconstitutionally discriminatory purpose in the present case.” 446 U. S., at 73.

Yet if one reads the specific allegations of the complaint heretofore set forth, they bear a striking resemblance to the so-called Zimmer criteria. If, as is alleged, approximately 50% of the population of the School District is Mexican-American, one wonders why an at-large system should result in no Mexican-American being elected. Indeed, the fact that two Mexican-Americans have recently been elected under the at-large system belies the Attorney General’s allegations. In Bolden, we rejected emphatically the theory that every “political group” or at least every such group that is in the minority, has a federal constitutional right to elect candidates in proportion to its numbers. 446 U. S., at 75. A court-imposed requirement that a specified number of Mexican-American seats be guaranteed by virtue of the approximately 50% Mexican-American population would, in my view, be clearly unwarranted.

Finally, it is important to remember that this is the beginning of a decennium which will involve a good deal of reapportionment. That task will fall primarily to legislators. “The Court has repeatedly held that redistricting and reapportioning legislative bodies is a legislative task which the federal courts should make every effort not to pre-empt. Connor v. Finch, 431 U. S. 407, 414-415 (1977); Chapman v. Meier, 420 U. S. 1, 27 (1975); Gaffney v. Cummings, 412 U. S. 735, 749 (1973); Burns v. Richardson, 384 U. S. 73, 84-85 (1966).” Wise v. Lipscomb, 437 U. S. 535, 539-540 (1978). In Minnesota State Senate v. Beens, 406 U. S. 187, 200 (1972), we concluded that “the action of the three-judge court in so drastically changing the number of legislative districts and the size of the respective houses of the Minnesota Legislature is not required by the Federal Constitution and is not justified as an exercise of federal judicial power.” Accordingly, those legislators who embark on the difficult and politically sensitive task of reapportionment will need clear rules for determining whether a particular plan for a particular governmental district is or is not constitutional.

Unfortunately, those legislators will not be aided by the decisions of this Court, decisions which are obviously not wholly in harmony with one another. Cf. Burns v. Richardson, 384 U. S. 73 (1966); East Carroll Parish School Board v. Marshall, 424 U. S. 636 (1976); White v. Regester, 412 U. S. 755, 765 (1973); Whitcomb v. Chavis, 403 U. S. 124 (1971); Connor v. Johnson, 402 U. S. 690 (1971); Mahan v. Howell, 410 U. S. 315 (1973); Gaffney v. Cummings, 412 U. S. 735, 749 (1973). The decision below is no exception: it will further confuse an already confused area. If all of the various governmental units subject to the ever-oscillating “one-person, one-vote” rule are to have even a fighting chance of reapportioning themselves within constitutional limits, rather than to be remitted to court-ordered redistricting, with all of the additional legal baggage which such plans bring with them, this Court should make every effort to clarify what the Voting Rights Act and the Federal Constitution require.

For the foregoing reasons, I dissent from the denial of the petition for certiorari.

       The statute was amended to include the italicized below:
      “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or implied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in § 4(f) (2) [42 U. S. C. § 1973b (f) (2)]." 89 Stat. 402.
      The guarantees of § 1973b (f) (2) assure against any denial or abridgment of the right to vote because the voter is a member of a language minority group. Congress enacted this amendment to § 2 pursuant to its power to enforce the guarantees of both the Fourteenth and ■ Fifteenth Amendments. 42 U. S. C. § 1973b (f)(1).

       As the court below noted, the United States now stipulates that two Mexican-Americans have recently been elected. 625 F. 2d 547, 549, n. 2 (CA5 1980).

       The Fifteenth Amendment provides: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

       The Court of Appeals also concluded that a school board is a “political subdivision” within the meaning of § 2. In Dougherty County Board of Education v. White, 439 U. S. 32 (1978), and United States v. Sheffield Board of Comm’rs, 435 U. S. 110 (1978), this Court broadly construed the terms "State or political subdivision” so as to subject the entities at issue there to the § 5 preclearance requirement. By contrast, in City of Rome v. United States, 446 U. S. 156 (1980), the Court narrowly construed the terms for the purpose o-f limiting resort to the Act’s so called “bailout” provisions. Because this Court has not yet settled on the proper construction of the term “political subdivision”, this issue also strikes mo as worthy of review by this Court.


text:
    No. 80-1278.
    Sowders, Warden v. Cleaver.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

The Chief Justice and Justice Powell would grant certiorari.


text:
    No. 80-1322.
    Familia de Boom et al. v. Arosa Mercantil, S. A., et al.
   C. A. 5th Cir. Certiorari denied.

Justice Blackmun would grant certiorari.


text:
    No. 80-1457.
    Hardin v. Pitney-Bowes, Inc.
   C. A. 6th

Cir. Certiorari denied.

Justice Rehnquist,

dissenting.

The petitioner in this case brought suit under the Age Discrimination in Employment Act of 1967, 29 U. S. C. § 621 et seq., alleging that respondent had unlawfully discharged him from his job. The District Court granted respondent’s motion for summary judgment and the Court of Appeals for the Sixth Circuit affirmed. 636 F. 2d 1217 (1980). Chief Judge Edwards dissented, reasoning that summary judgment is improperly invoked where, as here, the defendant’s motive and intent in discharging the plaintiff is at issue. Because I believe that petitioner raised a triable issue of fact under the Federal Rules of Civil Procedure, I believe that it was error to grant respondent’s motion for summary judgment. Accordingly, I would grant the petition for certiorari in order to give the case plenary consideration.

It has long been established that it is inappropriate to resolve issues of credibility, motive,' and intent on motions for summary judgment. It is equally clear that where such issues are presented, the submission of affidavits or depositions is insufficient to support a motion for summary judgment. In Arnstein v. Porter, 154 F. 2d 464, 469 (1946), for example, the Court of Appeals for the Second Circuit fully explored the circumstances in which summary judgment could be granted and concluded that “[although part of plaintiff’s testimony on deposition (as to ‘stooges’ and the like) does seem ‘fantastic/ yet plaintiff’s credibility, even as to those improbabilities, should be left to the jury.” And this Court has recently questioned the propriety of deciding defamation cases on summary judgment where the defendant’s state of mind is called into question under the “actual malice” standard. Hutchinson v. Proxmire, 443 U. S. 111, 120, n. 9 (1979); Wolston v. Reader’s Digest Assn., Inc., 443 U. S. 157, 161, n. 3 (1979). Likewise in this case, I agree, substantially for the reasons set forth by Chief Judge Edwards in his dissent, that petitioner raised a triable issue of fact as to the reasons for his discharge.

This case illustrates the frequency with which courts misapprehend the rule against summary judgment. In Butz v. Economou, 438 U. S. 478 (1978), for example, this Court held that top-level federal officials had only a qualified or good-faith immunity, such as that accorded in Scheuer v. Rhodes, 416 U. S. 232 (1974), against damages suits for malicious institution of administrative proceedings. The Court went on, however, to reassure that such litigation could still be disposed of summarily. The Court asserted:

“[Djamages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of immunity. See 416 U. S., at 250. In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed' by frivolous lawsuits.” 438 U. S., at 508 (footnote omitted).

For the reasons stated above and demonstrated by this case, I believe that view is wrong. Summary judgment simply may not be granted when such matters as the defendant’s motive and intent are questioned. Thus in any suit where the defendant is not accorded absolute immunity, so that the defendant’s state of mind is at issue, it will not require an ingenious advocate to force a trial of the case. It seems to me that even the most frivolous lawsuits filed against top-level federal officials will have to be tried. Indeed, that is one reason why I dissented in Butz v. Economou, supra, at 517 (concurring in part and dissenting in part), and remain convinced that the case was wrongly decided.

Just as summary judgment is inappropriate in qualified-immunity cases and in defamation cases, it is inappropriate here. Because petitioner raised issues going to respondent’s motive and intent, it was error to grant the motion for summary judgment. Accordingly, I dissent from the denial of the petition for certiorari.


text:
    No. 80-1602.
    Illinois State Dental Society et al. v. Schiller et al.
   C. A. 7th Cir. Certiorari denied.

Justice Stevens took no part in the consideration or decision of this petition.


text:
    No. 80-1606.
    Price Enterprises, Inc., et al. v. American International Pictures, Inc., et al.
   C. A. 4th Cir. Certiorari denied.

Justice Stewart took no part in the consideration or decision of this petition.


author: Justice Brennan and Justice Marshall,

text:
    No. 80-6256.
    Berry v. Louisiana.
   Sup. Ct. La. Cer-tiorari denied.

Justice Stewart would grant certiorari.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.


text:
    No. 80-6366.
    No. 80-6368.
    No. 80-6375.
    Turner v. Virginia. Jones v. Zant, Warden. Solomon v. Georgia.
   Sup. Ct. Va.;

Super. Ct. Ga., Butts County; and

Sup. Ct. Ga. Cer-tiorari denied. Reported below: No. 80-6366, 221 Va. 513, 273 S. E. 2d 36; No. 80-6375, 247 Ga. 27, 277 S. E. 2d 1.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 79-1157.
    No. 79-1733.
    No. 80-537.
    No. 80-763.
    No. 80-840.
    No. 80-1021.
    No. 80-1229.
    No. 80-1378.
    No. 80-5942.
    Rosewell, Treasurer of Cook County, Illinois, et al. v. LaSalle National Bank, Trustee, W. D. R. v. Taylor County Child Welfare Unit, In re J. W. B. et al., Estelle, Corrections Director v. Jurek, Weber et al. v. Barrett, Wood v. United States District Court for the Central District of California (Five Points Shopping Center, Real Party in Interest), Ehrman v. City of Philadelphia, Casarez-Ulloa, aka Molina v. United States, Amadeo v. Russeau, Sheriff,
   450 U. S. 503;

450 U. S. 989;

450 U. S. 990;

450 U. S. 1014;

450 U. S. 1022;

450 U. S. 995;

450 U. S. 997;

450 U. S. 999; and

450 U. S. 1035. Petitions for rehearing denied.


text:
    No. 80-6127.
    No. 80-6163.
    McDowell v. North Carolina, Johns v. King, Lieutenant Governor of Hawaii, et al.,
   450 U. S. 1025; and

450 U. S. 1033. Petitions for rehearing denied.


text:
    No. 80-5949.
    Burkhalter v. Chrysler Corp. et al.,
   450 U. S. 931. Motion for leave to file petition for rehearing denied.


text:
    May 20, 1981
    No. 80-309.
    No. 80-310.
    Heverly et al. v. Commissioner of Internal Revenue. Chapman et al. v. Commissioner of Internal Revenue.
   C. A. 3d Cir.; and

C. A. 1st Cir. Certiorari dismissed under this Court’s Rule 53. Reported below: No. 80-309, 621 F. 2d 1227; No. 80-310, 618 F. 2d 856.


text:
    May 26, 1981
    No. 80-1641.
    No. 80-1664.
    Supreme Court of Virginia et al. v. Consumers Union of the United States, Inc., et al. ; and Consumers Union of the United States, Inc., et al. v. Virginia State Bar et al.
   Appeals from D. C. E. D. Va. Motions of appellants to defer consideration of the appeals denied. Appeals dismissed for want of jurisdiction. Justice Powell took no part in the consideration or decision of these motions and these cases. Reported below: 505 F. Supp. 822.


text:
    No. 80-1661.
    Egan v. New York.
   Appeal from App. Div., Sup. Ct. N. Y., 4th Jud. Dept., dismissed for want of substantial federal question.


text:
    No. 80-6460.
    Prenzler v. Allen.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.


text:
    No. 80-1507.
    City of Parma, Ohio, et al. v. Record Revolution No. 6, Inc., et al.
   Appeal from C. A. 6th Cir. Judgment vacated and case remanded for further consideration in light of the recently enacted Section 2925.14 of the Ohio Revised Code.

Justice Stevens took no part in the consideration or decision of this case.


text:
    No. 79-6366.
    Blakney v. Montana.
   Sup. Ct. Mont. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Edwards v. Arizona, ante, p. 477.

Justice Blackmun dissents and would deny certio-rari.


text:
    No. 79-6601.
    White v. Finkbeiner.
   C. A. 7th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Edwards v. Arizona, ante, p. 477.


text:
    No. 80-997.
    Missouri v. Greer; Missouri v. Kendrick; and Missouri v. Williams.
   Sup. Ct. Mo. Motions of respondents Williams, Kendrick, and Greer for leave to proceed in forma pauperis and certiorari granted. Judgments vacated and cases remanded for further consideration in light of Albernaz v. United States, 450 U. S. 333 (1981). Reported below: 605 S. W. 2d 93 (first case); 606 S. W. 2d 643 (second case); 606 S. W. 2d 777 (third case).


text:
    No. 80-1674.
    Consumers Power Co. et al. v. Utility Workers Union of America, AFL-CIO, et al.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Alessi v. Raybestos-Manhattan, Inc., ante, p. 504.


text:
    No. 80-5084.
    Leuschner v. Maryland.
   Ct. Sp. App. Md. Motion of petitioner for leave to proceed in forma pau-peris and certiorari granted. Judgment vacated and case remanded for further consideration in light of Edwards v. Arizona, ante, p. 477.


text:
    No. 80-5258.
    Monroe v. Idaho.
   Sup. Ct. Idaho. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Edwards v. Arizona, ante, p. 477.


text:
    No. 80-5640.
    Wantland v. Maryland.
   Ct. Sp. App. Md. Motion of petitioner for leave to proceed in forma pau-peris and certiorari granted. Judgment vacated and case remanded for further consideration in light of Edwards v. Arizona, ante, p. 477.

Justice Blackmun dissents and would deny certiorari. Justice Powell and Justice Rehnquist dissent.


text:
    No. 80-5799.
    James v. Illinois.
   App. Ct. Ill., 4th Dist. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Edwards v. Arizona, ante, p. 477.

Justice Stewart, Justice Powell, and Justice Rehnquist dissent. Justice Blackmun dissents and would deny certiorari.


text:
    No. A-894 (80-6646).
    White v. United States.
   Super. Ct. D. C. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-916.
    Diamond M Co. et al. v. Rains.
   Ct. App. La., 3d Cir. Application for stay, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. D-219.
    In re Disbarment of Rospond.
    [For earlier order herein, see 450 U. S. 976.]
   Disbarment entered.


text:
    No. D-223.
    In re Disbarment of Wolf.
   Edward H. Wolf, of New York, N. Y., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on March 9, 1981 [450 U. S. 977], is hereby discharged.


text:
    No. D-224.
    In re Disbarment of Klauber.
    [For earlier order herein, see 450 U. S. 976.]
   Disbarment entered.


text:
    No. D-239.
    In re Disbarment of Fahy.
   It is ordered that Francis X. Fahy, of Jersey City, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 80-885.
    No. 80-1103.
    National Labor Relations Board v. Hendricks County Rural Electric Membership Corp.; National Labor Relations Board v. Malleable Iron Range Co.; and Hendricks County Rural Electric Membership Corp. v. National Labor Relations Board.
   C. A. 7th Cir. [Certiorari granted, 450 U. S. 964.] Motion of United Auto Workers for leave to file a brief as amicus curiae granted.


text:
    No. 80-608.
    United States Postal Service v. Council of Greenburgh Civic Assns. et al.
   D. C. S. D. N. Y. [Probable jurisdiction noted, 449 U. S. 1076.] Motion of appellant for leave to file a supplemental brief after argument granted.


text:
    No. 80-5950.
    Logan v. Zimmerman Brush Co. et al.
   Sup. Ct. Ill. [Probable jurisdiction noted, 450 U. S. 909.] Motion of Illinois Congress of Organizations of the Physically Handicapped et al. for leave to file a brief as amici curiae granted.


text:
    No. 80-6582.
    No. 80-6587.
    In re Corley; and In re El-Amin.
   Petitions for writs of habeas corpus denied.


text:
    No. 80-1582.
    United States v. MacDonald.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 80-1640.
    No. 80-1656.
    United States Nuclear Regulatory Commission et al. v. Sholly et al. ; and Metropolitan Edison Co. et al. v. People Against Nuclear Energy et al.
   C. A. D..C. Cir. Certio-rari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 209 U. S. App. D. C. 71, 651 F. 2d 792.


text:
    No. 79-6801.
    Rigler v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 80-238.
    Bartlett v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 80-1534.
    Ochs v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1434.
    No. 80-1439.
    No. 80-1632.
    Missouri-Kansas-Texas Railroad Co. v. United States et al.; Railway Labor Executives’ Assn. v. United States et al.; and Illinois et al. v. United States et al.
   C. A. 5th Cir. Certiorari denied. Reported below: 632 F. 2d 392.


text:
    No. 80-1536.
    Maryland et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-1599.
    Home Mutual Insurance Co. v. Commissioner of Internal Revenue.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-1607.
    Alcon Laboratories (Puerto Rico), Inc., et al. v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-1613.
    Starr et ux. v. Pring.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 80-1633.
    Davis v. Florida East Coast Railway Co.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 80-1648.
    Nierras v. Ohio.
   Ct. App. Ohio, Richland County. Certiorari denied.


text:
    No. 80-1652.
    International Produce, Inc. v. A/S Rosshavet.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1653.
    Smith v. Illinois.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 80-1673.
    Frederiksen et al. v. Poloway.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-1678.
    Johnson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1685.
    Pacific Development, Inc., et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-1701.
    Newport Tankers Corp. v. Simmons.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1709.
    Prudential Federal Savings & Loan Assn. v. Madsen et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-1723.
    Beck v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-1752.
    Wernke v. Miller, Chief of Police of the Town of Plainfield, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-1775.
    Klauber v. Attorney Grievance Commission of Maryland.
   Ct. App. Md. Certiorari denied.


text:
    No. 80-1776.
    Gagnon v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-1782.
    Herzog v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-1789.
    Calabrese v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-1812.
    Baker et al. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5921.
    Krueger v. Illinois.
   Sup. Ct. Ill. Cer-tiorari denied.


text:
    No. 80-6055.
    Williams v. Missouri.
   Sup. Ct. Mo. Cer-tiorari denied.


text:
    No. 80-6118.
    Causey v. Georgia.
   Sup. Ct. Ga. Certio-rari denied.


text:
    No. 80-6165.
    Williams v. Kelley et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6192.
    McCrary v. Hongisto et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-6214.
    Duffield v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-6269.
    Burton v. White, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6286.
    McKnabb v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6384.
    Butler v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-6431.
    Brown et al. v. Illinois.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 80-6432.
    Sinclair v. Dalsheim, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-6433.
    Chicco v. Peck.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-6435.
    No. 80-6495.
    Yip v. United States; and Gan v. United States.
   C. A. 2d Cir. Certiorari denied. Reported below: 636 F. 2d 28.


text:
    No. 80-6441.
    Coolidge v. Schooner California et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-6442.
    Pfaff v. City of Chillicothe.
   Ct. App. Ohio, Ross County. Certiorari denied.


text:
    No. 80-6445.
    Hamilton v. Abshire, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6448.
    Roper, aka Barry v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 80-6449.
    Prince v. Texas et al.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 80-6450.
    Lewis v. Florida.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied.


text:
    No. 80-6456.
    Allen v. Farley et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6457.
    Cox v. Watson, Judge, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6459.
    McKinley v. Pulley, Correctional Superintendent.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 80-6463.
    Cummins v. Jago et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6466.
    Burns v. State Bar of Wisconsin.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-6468.
    Kummer v. Wisconsin.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 80-6470.
    Cox v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-6476.
    Ross v. Correctional Institutional Inspection Committee.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 80-6497.
    Miranda de Chavez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-6565.
    Sivigliano v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6571.
    McCaskill v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-6579.
    Wright v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-6584.
    Brunk v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6603.
    Roush v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-456.
    Thompson, Secretary, Department of Social and Health Services of Washington, et al. v. Berry et al.
   Sup. Ct. Wash. Motion of respondents for leave to proceed in jorma pauperis granted. Certiorari denied.


text:
    No. 80-664.
    California v. Braeseke.
   Sup. Ct. .Cal, Motion of respondent for leave to proceed in jorma pauperis granted. Certiorari denied.


text:
    No. 80-974.
    Ford v. Ford et al.
   Ct. Civ. App. Tex., 9th Sup. Jud. Dist. Motion of respondent Dorothy Ford for leave to proceed in jorma pauperis granted. Certiorari denied.


text:
    No. 80-1158.
    Florida v. Rodriguez.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.

The Chief Justice, Justice Blackmun, and Justice Powell would grant certiorari and reverse the judgment.


text:
    No. 80-1306.
    Doe, by Doe et ux., her parents and next friends v. Renfrow, Superintendent of the Highland Community School Corporation, et al.
   C. A. 7th Cir. Certiorari denied.

Justice Brennan,

dissenting.

I dissent from the denial of the petition for certiorari. I would grant the petition and summarily reverse the judgment of the Court of Appeals insofar as it affirmed the judgment of the District Court. I cannot agree that the Fourth Amendment authorizes local school and police officials to detain every junior and senior high school student present in a town’s public schools and then, using drug-detecting, police-trained German shepherds, to conduct a warrantless, student-by-student dragnet inspection “to see if there were any drugs present.” While school officials acting in loco parentis may take reasonable steps to maintain a safe and healthful educational environment, their actions must nonetheless be consistent with the Fourth Amendment. The problem of drug abuse in the schools is not to be solved by conducting schoolhouse raids on unsuspecting students absent particularized information regarding drug users or suppliers.

I

Petitioner Diane Doe is a 13-year-old student at Highland Junior High School in Highland, Ind., a community of approximately 30,000 residents. Highland has one junior high school and one senior high school, located in adjacent buildings. There are 2,780 students enrolled in those schools.

On the morning of March 23, 1979, petitioner went to her first-period class as usual. Shortly before 9:15, when the class was scheduled to adjourn, petitioner’s teacher ordered everyone to remain seated until further notice. An assistant principal, accompanied by a police-trained German shepherd, a dog handler, and a uniformed police officer, then entered the classroom as one of six teams conducting simultaneous raids at the Highland schools. For the next 2% hours, petitioner and her classmates were required to sit quietly in their seats with their belongings in view and their hands upon their desks. They were forbidden to use the washroom unless accompanied by an escort. Uniformed police officers and school administrators were stationed in the halls. Guards were posted at the schoolhouse doors. While no student was allowed to leave the schoolhouse, representatives of the press and other news media, on invitation of the school authorities, were permitted to enter the classrooms to observe the proceedings.

The dogs were led up and down each aisle of the classroom, from desk to desk, and from student to student. Each student was probed, sniffed, and inspected by at least 1 of the 14 German shepherds detailed to the school. When the search team assigned to petitioner’s classroom reached petitioner, the police dog pressed forward, sniffed at her body, and repeatedly pushed its nose and muzzle into her legs. The uniformed officer then ordered petitioner to stand and empty her pockets, apparently because the dog “alerted” to the presence of drugs. However, no drugs were found. After petitioner emptied her pockets, the dog again sniffed her body, and again it apparently “alerted.” Petitioner was then escorted to the nurse’s office for a more thorough physical inspection.

Petitioner was met at the nurse’s office by two adult women, one a uniformed police officer. After denying that she had ever used marihuana, petitioner was ordered to strip. She did so, removing her clothing in the presence of the two women. The women then looked over petitioner’s body, inspected her clothing, and touched and examined the hair on her head. Again, no drugs were found. Petitioner was subsequently allowed to dress and was escorted back to her classroom.

Each of the 2,780 students present at Highland Junior and Senior High Schools that day was subjected to the mass detention and general exploratory search. Eleven students, including petitioner, were subjected to body searches. Although the police dogs “alerted” 50 times, no junior high school students, and only 17 senior high school students, were found to be in possession of contraband. This contraband included marihuana, drug “paraphernalia,” and three cans of beer.

Petitioner brought suit in the District Court for the Northern District of Indiana against various Highland school officials, the Highland Police Chief, and the trainer of the German shepherds used in the search. Claiming a violation of rights secured by the Fourth, Ninth, and Fourteenth Amendments to the Constitution, petitioner sought injunctive and declaratory relief and compensatory and punitive damages under 42 ü. S. C. §§ 1983 and 1985 (3) (1976 ed., Supp. III).

After trial, the District Court rejected petitioner’s claims. 475 F. Supp. 1012 (1979). First, it found that all aspects of the mass detention and inspection, except for the strip-search, were constitutionally valid. Then, it dismissed petitioner’s action against the Police Chief and the dog trainer on the ground that they did not personally participate in the strip-search, and it denied petitioner’s claim for damages against the school administrators on the ground that they enjoyed qualified good-faith immunity under Wood v. Strickland, 420 U. S. 308 (1975).

The Court of Appeals for the Seventh Gircuit affirmed all parts of the judgment except for the grant of good-faith immunity with respect to the strip-search. 631 F. 2d 91 (1980). Expressly relying upon the District Court’s reasoning, it held that the entry into the classrooms “was a justified action taken in accordance with the in loco parentis doctrine,” and that “the sniffing of a trained narcotic detecting canine is not a search.” 475 F. Supp., at 1019. The court also found that there was sufficient evidence of drug activity at the Highland schools to establish “reasonable cause to believe” contraband would be found, and thus to justify the use of drug-sniffing police dogs. Petitioner’s request for rehearing en banc was denied, with Chief Judge Fairchild and Judges Swygert, Wood, and Cudahy dissenting. 635 F. 2d 582 (1980).

II

I cannot agree that the Highland school officials’ use of the trained police dogs did not constitute a search. The dogs were led from student to student for the express purpose of sniffing their clothing and their bodies to obtain information that the school authorities and police officers, with their less developed sense of smell, were incapable of obtaining. In the case of petitioner, the dog repeatedly jabbed its nose into her legs. Petitioner testified that the experience of being sniffed and prodded by trained police dogs in the presence of the police and representatives of the press was degrading and embarrassing. I am astonished that the court did not find that the school’s use of the dogs constituted an invasion of petitioner’s reasonable expectation of privacy. See Katz v. United States, 389 U. S. 347 (1967); Wolf v. Colorado, 338 U. S. 25 (1949).

Moreover, even if the Fourth Amendment permits school authorities, acting in loco parentis, to conduct exploratory inspections if they have “reasonable cause to believe” contraband will be found, that standard could not apply where, as here, the school officials planned and conducted the search with the full participation of local police officials. Once school authorities enlist the aid of police officers to help maintain control over the school’s drug problem, they step outside the bounds of any quasi-parental relationship, and their conduct must be judged according to the traditional probable-cause standard.

Although a number of incidents involving alcohol, drugs, and related paraphernalia had been reported to school authorities in the seven months preceding the raid on the Highland schools, those incidents involved only 21 students, 13 of whom had been “withdrawn” from the school system by March 1979. 475 F. Supp., at 1015, and n. 1. At the time of the raid, school authorities possessed no particularized information as to drugs or contraband, suppliers or users. Furthermore, they had made no effort to focus the search on particular individuals who might have been engaged in drug activity at school. The authorities had no more than a generalized hope that their sweeping investigative techniques would lead to the discovery of contraband.

This Court has long expressed its abhorrence of unfocused, generalized, information-seeking searches. See, e. g., Ybarra v. Illinois, 444 U. S. 85 (1979) (mass investigatory detention, interrogation, and search of bar patrons); Davis v. Mississippi, 394 U. S. 721 (1969) (mass detention and fingerprinting of black men fitting general description of perpetrator of crime). But that is precisely the type of search the Highland officials conducted. They certainly had far less than probable cause — or in my view even reasonable suspicion — to believe that each student searched would possess drugs or other contraband. Accordingly, I believe the search was unconstitutional.

We do not know what class petitioner was attending when the police and dogs burst in, but the lesson the school authorities taught her that day will undoubtedly make a greater impression than the one her teacher had hoped to convey. I would grant certiorari to teach petitioner another lesson: that the Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and that before police and local officers are permitted to conduct dog-assisted dragnet inspections of public school students, they must obtain a warrant based on sufficient particularized evidence to establish probable cause to believe a crime has been or is being committed. Schools cannot expect their students to learn the lessons of good citizenship when the school authorities themselves disregard the fundamental principles underpinning our constitutional freedoms.

       Apparently, the police dogs alerted to petitioner because she had been playing with her own dog, which was in heat, on the morning of the raid.

       The court also denied petitioner’s motion for class certification.

       With respect to good-faith immunity, the Court of Appeals concluded:
      “It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human decency. Apart from any constitutional readings and rulings, simple common sense would indicate that the conduct of the school officials in permitting such a nude search was not only unlawful but outrageous under 'settled indisputable principles of law’ [Wood v. Strickland, 420 U. S. 308, 321 (1975).] . . . We suggest as strongly as possible that the conduct herein described exceeded the 'bounds of reason’ by two and a half country miles.” 631 F. 2d, at 92-93.

       Although the court below relied on a number of cases holding that the use of trained dogs to sniff out contraband does not constitute a search, see, e. g., United States v. Solis, 536 F. 2d 880 (CA9 1976); United States v. Bronstein, 521 F. 2d 459 (CA2 1975), cert. denied, 424 U. S. 918 (1976); United States v. Fulero, 162 U. S. App. D. C. 206, 498 F. 2d 748 (1974), those cases involved the sniffing of inanimate and unattended objects rather than persons. Thus, even if those cases correctly state the law, they are inapposite.

       For the same reason, I would disagree with the Court of Appeals’ conclusion that the mass detention of students by school authorities and police officers did not constitute an unreasonable seizure. See Terry v. Ohio, 392 U. S. 1 (1968).

       The Court of Appeals found it significant that the police officials agreed not to seek prosecution of students found to possess drugs. However, I agree with the dissenting opinion of Judge Swygert that the Fourth Amendment’s protection against unreasonable searches is based on “‘the right of the people to be secure in their persons,”’ and that it is constitutionally irrelevant that the police officers may have agreed not to arrest students found to be in possession of contraband. 635 F. 2d 582, 584 (1980).


text:
    No. 80-1465.
    Crocker National Bank v. State Board of Equalization of California et al.
   C. A. 9th Cir. Cer-tiorari denied.

Justice Blackmun and Justice Powell would grant certiorari.


text:
    No. 80-1583.
    Colorado v. Chavez.
   Sup. Ct. Colo. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 80-1637.
    McElroy, Warden v. Holloway.
   C. A. 5th Cir. Certiorari denied.

Justice Rehnquist,

with whom The Chief Justice joins,

dissenting.

Perhaps the tersest summary of the reasons I would grant certiorari in this case is contained in the “black letter” heading of Part II, section B, subsection 4 of the opinion of the Court of Appeals: “Where the states are left after Winship, Mullaney, and Patterson.” 632 F. 2d 605, 624. The opinion of that court, which comprises 79 printed pages of the appendix to the petition for certiorari here, suggests that the answer is not crystal clear, even to the Court of Appeals for the Fifth Circuit whose judgment we are asked to review.

Mullaney v. Wilbur, 421 U. S. 684 (1975), established that a State must prove every element of a criminal offense beyond a reasonable doubt. It is equally well established, however, that state legislatures and state courts, not federal judges, define the elements of a state criminal offense. Id., at 691. The Court of Appeals for the Fifth Circuit in this case followed the former rule but not the latter and, on the strength of this possible error, ordered released from prison a person convicted of voluntary manslaughter whose conviction had been affirmed on direct appeal and state habeas corpus. Because I believe that it is for Georgia, and not the Court of Appeals for the Fifth Circuit, to define the elements of the crime of voluntary manslaughter under Georgia law, I would grant plenary consideration.

Respondent Holloway was tried before a Georgia jury for murder and convicted of the lesser included offense of voluntary manslaughter. Under Georgia law “[a] person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” Ga. Code § 26-1101 (a) (1978). Voluntary manslaughter is defined as causing the death of another human being under circumstances which would otherwise be murder if the killer “acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” § 26-1102. Respondent admitted that he intentionally killed the victim but claimed that he acted in self-defense. Georgia law recognizes the defense of self-defense, § 26-902, and explicitly provides that a claim of self-defense “is an affirmative defense.” § 26-907. The trial judge accordingly instructed the jury, without objection from respondent's counsel, that after the State had proved an intentional homicide “the burden is on the slayer” to show that the killing was justified, in this case by self-defense. 632 F. 2d, at 619 (emphasis in original).

Respondent appealed his conviction, but did not raise any Mullaney issue. The Georgia Court of Appeals affirmed, 137 Ga. App. 124, 222 S. E. 2d 898 (1975), and the Georgia Supreme Court denied certiorari. Respondent then sought federal habeas relief, but the District Court dismissed his application without prejudice for failure to exhaust, suggesting sua sponte that the trial court’s instruction was “ 'notably suspect under the principles of Mullaney v. Wilbur.’ ” 632 F. 2d, at 614. The state trial court denied state habeas relief, and the Georgia Supreme Court affirmed. Rejecting respondent’s Mullaney claim, the Georgia Supreme Court ruled: “The burden placed on the defendant to excuse the homicide is an affirmative defense. Code Ann. § 26-907. The defendant is not required to negate any of the elements of the crime which the state must prove to convict.” 241 Ga. 400, 401, 245 S. E. 2d 658, 659 (1978).

Respondent thereupon again sought federal habeas relief, which this time was granted, on the ground that the instruction impermissibly shifted the burden of proof from the State. The Court of Appeals for the Fifth Circuit affirmed. After stating that “the statute’s characterization of self-defense as an 'affirmative defense’ tells us nothing about the burden of persuasion on the self-defense issue,” 632 F. 2d, at 630, the court concluded that since an element of the crime for which respondent was convicted was that the killing be “unlawful,” and self-defense negates that element, requiring the defendant to prove that he acted in self-defense relieves the State of its burden of proving the unlawfulness of the killing. The court noted that “[t]he State has not cited, and our research has not found, any case from the Georgia courts which holds that the absence of self-defense has . . . been read out of the requirement of unlawfulness.” Id., at 634.

A common-sense reading of a statutory characterization of a defense as an “affirmative defense,” however, certainly suggests that its absence is not an “element of the crime” which the State must prove. But more significantly, that is the exact reading given to this statutory characterization of self-defense as an affirmative defense by the Supreme Court of Georgia in the opinion which denied this very respondent state habeas relief. In the words of that court, the putting of the burden of proof on the defendant to prove self-defense is not requiring him to “negate any of the elements of the crime which the state must prove to convict.” 241 Ga., at 401, 245 S. E. 2d, at 659.

In Patterson v. New York, 432 U. S. 197, 210 (1977), this Court declined “to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.” By interpreting the term “unlawful” in the Georgia statutes as broadly as it has, the Court of Appeals in this case achieved just this result. It is doubtful that any state legislature would intend such a result; the Georgia Supreme Court in this case has told us that the Georgia Legislature did not. As stated in Mullaney itself, “state courts are the ultimate expositors of state law . . . and ... we are bound by their constructions.” 421 U. S., at 691. In Patterson we recognized that the rule that the definition of the elements of a crime is a state-law matter would permit state legislatures to allocate burdens of proof “by labeling as affirmative defenses” that which could otherwise be considered elements of a crime. 432 U. S., at 210. In that opinion, the Court noted that in Rivera v. Delaware, 429 U. S. 877 (1976), decided ajter Mullaney, we had dismissed for want of a substantial federal question the claim that the latter case had overruled Leland v. Oregon, 343 U. S. 790 (1962), which held that a State might make insanity an “affirmative defense.” That is precisely what Georgia has done in this case with respect to “self-defense.” Because the Court of Appeals for the Fifth Circuit deprived Georgia of an option specifically recognized in Patterson, by substituting its own reading of the term “unlawful” in the Georgia Code for the reading given that term by the Georgia Supreme Court, I dissent from the denial of certiorari.


text:
    No. 80-1669.
    Moss v. Lawrence.
   C. A. 10th Cir. Motion of Society of Professional Journalists, Sigma Delta Chi, for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 80-6324.
    No. 80-6367.
    Milton v. Texas. Briley v. Virginia.
   Ct. Crim. App. Tex.; and

Sup. Ct. Va. Certio-rari denied. Reported below: No. 80-6324, 599 S. W. 2d 824; No. 80-6367, 221 Va. 532, 273 S. E. 2d 48.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 80-950.
    No. 80-1162.
    No. 80-1316.
    No. 80-5572.
    No. 80-6195.
    No. 80-6352.
    Nicoladze v. United States, Schweiker, Secretary of Health and Human Services v. Hansen, Bauer v. United States et al., Douthit v. Estelle, Corrections Director, Hornick v. Noyes et al., In re Piatt,
   450 U. S. 995;

450 U. S. 785;

450 U. S. 1031;

449 U. S. 1064;

450 U. S. 1044; and

ante, p. 905. Petitions for rehearing denied.


text:
    No. 80-6274.
    Williams v. Arkansas Public Service Commission,
   ante, p. 920. Petition for rehearing denied.

Justice Stewart took no part in the consideration or decision of this petition.


author: Justice Rehnquist, Circuit Justice.

text:
    CALIFORNIA v. PRYSOCK
    No. A-834 (80-1846).
    Decided April 24, 1981
   Justice Rehnquist, Circuit Justice.

Applicant, the State of California (hereafter State), seeks a stay of the judgment of the California Court of Appeal (Fifth Appellate District) in this case after the Supreme Court of California denied the State’s petition for hearing on March 17, 1981, with Justices Mosk and Richardson expressing the view that the petition should be granted. Because it appeared to be common ground between the Court of Appeal which ruled against the State, the State, and other courts which have spoken to the question of the applicability of Miranda v. Arizona, 384 U. S. 436 (1966), that its precision was one of its great virtues, I entered a temporary stay of the order of the Court of Appeal in view of the strict California speedy-trial requirements in order that I might consider in more detail the application, the response, and the decided cases on the issue.

The facts may be briefly stated. The victim was brutally murdered on January 30, 1978. She was struck with a wooden dowel, bludgeoned with a fireplace poker, stabbed with an ice pick, and finally strangled with a telephone cord. On the evening of the murder respondent, a minor, was arrested along with a eodefendant. He was brought to a substation of the Tulare County Sheriff’s Department and advised of his Miranda rights. He declined to talk and, since he was a minor, his parents were notified. Respondent’s parents arrived, and after meeting with them respondent decided to answer police questions. An officer questioned respondent, on tape, with respondent’s parents present. Respondent was advised of his constitutional rights. The tape reflects the following warnings regarding the right to counsel:

“Sgt. Byrd: You have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: You also, being a juvenile, you have the right to have your parents present, which they are. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: Even if they weren’t here, you’d have this right. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: You all, uh, — if, — you have the right to have a lawyer appointed to represent you at no cost to yourself. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: Now, having all these legal rights in mind, do you wish to talk to me at this time?
“Randall P.: Yes.”

Respondent thereafter made incriminating statements which were admitted at trial. He was convicted of first-degree murder with two special circumstances of torture and robbery, robbery, burglary, auto theft, destruction of evidence, and escape from a juvenile camp. He was sentenced to life imprisonment.

The Court of Appeal reversed on the ground that respondent was not properly advised of his right to the services of a free attorney before and during interrogation. Although respondent was informed that he had “the right to talk to a lawyer before you are questioned, have him present while you are being questioned, and all during the questioning,” and “the right to have a lawyer appointed to represent you at no cost to yourself,” the Court of Appeal ruled that these warnings were inadequate because respondent was not informed of his right to have an attorney appointed before further questioning.

The Court of Appeal stated:

“It is not for this Court to overrule Miranda, disparage it, nor extend it. Its meaning is clear. It has stood the test of time. Law enforcement practices have adjusted to its strictures. One of its virtues is its precise requirements which are so easily met.” App. A to Application 7.

The Court of Appeal went on to quote from a recent decision of the United States Court of Appeals for the Fifth Circuit sitting en banc in Harryman v. Estelle, 616 F. 2d 870, 873-874, cert. denied, 449 U. S. 860 (1980), to the following effect:

“ ‘The rigidity of the Miranda rules and the way in which they are to be applied was conceived of and continues to be recognized as the decision’s greatest strength. E. g., Tague v. Louisiana, [444] U. S. [469] (1980); Miranda v. Arizona, 384 U. S., at 479 .... See also Fare v. Michael C., 439 U. S. 1310, 1314 .. . (1978) (Rehnquist, J., on application for stay) (calling rigidity of Miranda its single “core virtue”). The decision’s rigidity has afforded police clear guidance on the acceptable manner of questioning an accused. It has allowed courts to avoid the intractable factual determinations that the former totality of the circumstances approach often entailed. When a law enforcement officer asks a question of an accused and the accused, without the benefit of Miranda’s safeguards, answers, the totality of the circumstances is irrelevant. The accused’s answer is simply inadmissible at trial as part of the prosecution’s case in chief.’ ” App. A to Application 7-8.

In Harryman v. Estelle, however, the defendant was asked and answered a question before being given any Miranda warnings at all. Fare v. Michael C., 442 U. S. 707 (1979), considered whether a minor’s request to talk with his probation officer should be treated for Miranda purposes in the same manner as a request to consult with an attorney, and the Court held that it should not. The case did not consider the content of Miranda warnings. Neither did Tague v. Louisiana, 444 U. S. 469 (1980) (per curiam), which reversed a decision upholding a conviction when “no evidence at all was introduced to prove that petitioner knowingly and intelligently waived his rights.” Id., at 471. In short, none of the decisions cited for the proposition that the rigidity of Miranda is its great virtue support the proposition that the desirable rigidity extends to the precise formulation of the warnings.

The decision of the Court of Appeal in this case may, in the name of advancing Miranda’s virtue of rigidity and precision, have transformed the Miranda warnings into a ritualistic formalism. Respondent was told of his right to have a lawyer present before questioning, and of his right to have a lawyer appointed. The Court of Appeal seems to have held that the warnings were inadequate because of the order in which they were given.

Applying the relevant factors, see Fare v. Michael C., 439 U. S. 1310, 1311 (1978) (Rehnquist, J., in chambers), I have decided to issue the requested stay. The request for a stay of the judgment of the California Court of Appeal pending the timely filing of a petition for writ of certiorari and final determination of the case by this Court is accordingly granted.


text:
    BECKER et al. v. UNITED STATES et al.
    No. A-918.
    Decided May 29, 1981
   Justice Rehnquist, Circuit Justice.

Applicants claimed depreciation, investment credits, and other expenses on their federal income tax returns with respect to certain videotapes. The Internal Revenue Service issued summonses directing the production of the videotapes and, on the appointed date, applicants appeared before the IRS agent with the videotapes. They agreed to permit the agent to examine, play, and otherwise inspect the videotapes for as long as desired, but only in their presence, and declined to leave the videotapes in the possession of the agent. Not satisfied with such an arrangement, the IRS brought an enforcement proceeding under 26 U. S. C. §§ 7402 (b) and 7604 (a).

The United States District Court for the Eastern District of California ordered applicants to turn over the videotapes as demanded by the IRS. Applicants filed notices of appeal and moved the District Court to stay its judgment pending appeal. They offered to post a supersedeas bond and argued in their memorandum in support that they were entitled to a stay under Federal Rule of Civil Procedure 62 (d) upon posting of such bond. This Rule provides:

“Stay upon appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court.”

The exceptions mentioned in Rule 62 (a) are injunction cases, receivership cases, and patent infringement cases in which an accounting has been ordered. The District Court denied the motion for a stay and the Court of Appeals for the Ninth Circuit denied a subsequent motion for a stay.

Applicants thereupon filed the instant application for a stay pending appeal of the District Court judgment to the Court of Appeals. I granted a temporary stay and called for a response from the United States. That response has now been received and, upon examination of it and the relevant authorities, I have decided to continue the stay pending further action by the full Court.

Pursuant to Federal Rule of Civil Procedure 81 (a)(3), the Federal Rules apply “to proceedings to compel the giving of testimony or production of documents in accordance with a subpoena issued by an officer or agency of the United States under any statute of the United States except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings.” In Donaldson v. United States, 400 U. S. 517, 528-529 (1971), however, we ruled that Rule 81 (a) (3) and prior language in United States v. Powell, 379 U. S. 48, 58, n. 18 (1964), to the effect that the Rules apply in summons enforcement proceedings were “not intended to impair a summary enforcement proceeding so long as the rights of the party summoned are protected and an adversary hearing, if requested, is made available.” When gathering testimony, the need for summary enforcement of IRS summonses is clear and justifies dispensing with Federal Rules which might interfere with that task. The question here is whether the Government’s enforcement order includes more than mere testimony, as broadly as we have construed the word “testimony” in cases such as United States v. Euge, 444 U. S. 707 (1980); United States v. Dionisio, 410 U. S. 1 (1973); United States v. Mara, 410 U. S. 19 (1973); and Schmerber v. California, 384 U. S. 757 (1966). If the effect of the summons enforcement proceeding is to take what is potentially income-producing property of the respondent rather than merely require him to produce evidence, the need to proceed summarily is less clear, as is the justification for dispensing with otherwise applicable provisions of the Federal Rules.

If the Federal Rules do apply, it should be noted that whether the automatic stay provisions of Rule 62 (d) or the discretionary stay provisions of Rule 62 (c) apply will have no effect on applicants’ case once its merits are decided by the Court of Appeals for the Ninth Circuit, before which it is presently pending. While I am not fully convinced by the submissions of either the applicants or the Government on this point, I do not think it can be said that applicants’ position is totally unwarranted. .The Government devotes only one page of its nine-page response to this contention, and its treatment of the subject is not altogether persuasive. The language of Rule 62 (d) seems clear, and the enumerated exceptions do not include tax summons enforcement proceedings. Expressio unius est exclusio alterius. Contrary to the Government’s assertion, an order enforcing an IRS summons is not the “equivalent” of a mandatory injunction — and hence within the exceptions to Rule 62 (d) — simply because the coercive power of the court is invoked. The only authority directly in point supports applicants’ contention. United States v. Neve, 80 F. R. D. 461 (ED La. 1978). But cf. FTC v. TRW, Inc., 202 U. S. App. D. C. 207, 210, n. 3, 628 F. 2d 207, 210, n. 3 (1980) (dictum criticizing District Court for granting stay as of right under Rule 62 (d) in Federal Trade Commission subpoena enforcement proceeding).

The question before me in my capacity as Circuit Justice, however, is not simply whether applicants were entitled to a stay from the District Court or from the Court of Appeals pursuant to Rule 62 (d), but rather whether I should now continue in effect a stay previously entered to protect the ultimate jurisdiction of this Court in the event that applicants’ case is decided adversely to them by the Court of Appeals, and they petition this Court for certiorari. See 28 U. S. C. § 1651 (a). It is at this point that the Rules of Civil Procedure, the summons enforcement proceedings of the Internal Revenue Code, and the extent of my authority under 28 U. S. C. § 1651 (a) do not nicely mesh. Once the Court of Appeals decides the merits of the case, it will not be relevant to either party whether a stay should have been granted pending appeal, and Rule 62 (d) by its terms speaks only to such stays. Thus, the Rule 62 (d) question will “wash out” after decision on the merits by the Court of Appeals, unless applicants can persuade at least four Justices of this Court that the issue is one “capable of repetition, yet evading review” and therefore not moot. Yet if a decision of the Court of Appeals is favorable to the applicants on the merits of their claim, it would make the unavailability of any stay pending appeal pursuant to the posting of an appropriate supersedeas bond a hardship on them and others similarly situated. This hardship may be of some weight in deciding whether to grant a stay pending decision by the Court of Appeals and a subsequent petition for certiorari by applicants in the event the decision is unfavorable to them.

The question applicants present before the Court of Appeals, as I understand it, is whether a taxpayer who has offered to make available to the IRS on conditions unsatisfactory to the Service videotaped material which is not merely “evidence” but is also “property” with which applicant conducts business, may be compelled by the IRS to relinquish possession of the property. Title 26 U. S. C. § 7602 (1) confers authority on the IRS to examine “any books, papers, records, or other data which may be relevant or material” to an inquiry into a taxpayer’s liability. The videotapes do not appear to be such records or data; rather, they are applicants’ copies of the asset itself. Under 26 U. S. C. § 7606 the IRS can examine objects subject to tax such as these videotapes. Requiring applicants to relinquish possession of the asset subject to tax as opposed to records concerning that asset would seem to be tantamount to ruling that a taxpayer must upon demand relinquish possession of a building to the IRS simply because he claimed depreciation on the building. The Government relies on United States v. Davey, 543 F. 2d 996, 999 (CA2 1976), which held that the IRS could compel production of taxpayer’s financial records which were on computer tape, but the computer tape in that case was not the asset in question but rather simply the form in which records were kept.

I am by no means convinced of the correctness of the position of either party, and neither the District Court nor the Court of Appeals entered more than a minute order by way of explanation of their action in denying a stay. Obviously, as pointed out in Donaldson, the IRS must retain its authority to conduct summary enforcement proceedings if large amounts of properly taxable income are not to evade taxation. But in this case no deficiency has been assessed by the IRS, and the summary provisions for the seizure of actual assets which are then authorized by statute have not yet become available to the Government. This is not the typical case with which the Court has dealt in the last few years, culminating in United States v. LaSalle National Bank, 437 U. S. 298 (1978), where the Government is seeking to inspect purely evidentiary or testimonial material — from which the taxpayer would derive no monetary benefit by retaining it in his possession — and the taxpayer denies the Government access to that evidence on grounds of privilege or the like. Obviously the taxpayer cannot simply write his own ticket as to the manner in which relevant nonprivileged evidence shall be made available to the IRS; but it seems to me that until the Government has gathered sufficient information to invoke its summary seizure authority, there are probably four Justices of this Court who would vote to grant certiorari to determine whether the IRS may, pursuant to its summons authority, acquire and indefinitely retain material which is not merely books and records relevant for purposes of determining the correctness of the taxpayer’s income tax return, but which is also property which the taxpayer uses for the production of income.

The balance of equities tips heavily in favor of applicants. If a stay is not granted, applicants will be required to turn over their videotapes and their appeal may well become moot, particularly if the IRS completes its investigation prior to decision by the Court of Appeals. Much of the harm applicants contend will result from turning their videotapes over to the IRS will not be remediable if a stay is denied here and applicants eventually prevail. Applicants will lose the use of their videotapes as a sales promotional device for the time they are in the possession of the IRS.

Injury to the Government, on the other hand, seems to me minimal in this case. Applicants have already agreed, at the request of the IRS, to extend the statute of limitations. They have made the videotapes available to the Service for examination, and have indicated no hesitancy to continue to do so, albeit on terms which the Government regards as unsatisfactory.

My conclusions, however, are not entertained without considerable doubt. It is, as the Government has pointed out in its response, highly unusual for a Circuit Justice to stay an order of the District Court while an appeal from that order is pending in the Court of Appeals. Were I convinced that either the District Court or the Court of Appeals thought it had the usual discretion to grant the stay in question, but nonetheless declined to exercise that discretion, the proverbial “stay equities” might well fall on the other side of the line. The decisions below not to grant a stay, however, may have been based on the view that this was an ordinary tax summons enforcement proceeding, a view which at least four Justices of this Court may not share. For these reasons I shall continue the stay in effect, subject to the posting of the supersedeas bond approved as to form and amount by the District Court, until the question may be reviewed at the next regularly scheduled Conference of the full Court on June 4, 1981.

It is so ordered.