ALEXANDER HAIG, ET AL., PETITIONERS V. GLADYS BISSONETTE, ET AL.

   No. 86-987

   In the Supreme Court of the United States

   October Term, 1986

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit

   The Solicitor General, on behalf of Alexander Haig, Richard G.
Kleindienst, Joseph T. Sneed, Charles Ablard, Joseph H. Trimbach,
Ralph E. Erickson, Harlington Wood, Jr., Kenneth Belieu, Rolland
Gleszer, Edmund Edwards, John Hay, and Volney F. Warner, petitions for
a writ of certiorari to review the judgment of the United States Court
of Appeals for the Eighth Circuit in this case.

                       PARTIES TO THE PROCEEDING

   Petitioners are Alexander Haig, Richard G. Kleindienst, Joseph T.
Sneed, Charles D. Ablard, Joseph H. Trimbach, Ralph E. Erickson,
Harlington Wood, Jr., Kenneth Belieu, Roland Gleszer, Edmund Edwards,
John Hay, and Volney F. Warner.  The respondents are Gladys
Bissonette, Ellen Moves Camp, Eugene White Hawk, Marvin Ghost Bear,
Edgar Bear Runner, Oscar Bear Runner, Severt Young Bear, Rachel White
Dress, Helen Red Feather, Eddie White Dress, Vicki Little Moon,
Madonna Gilbert, Lorelei Means, and Carla Blakey.

            TABLE OF CONTENTS
   Parties to the proceeding
   Opinions below
   Jurisdiction
   Constitutional provision and statute involved
   Questions presented
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E
   Appendix F
   Appendix G

                            OPINIONS BELOW

   The opinion of the court of appeals en banc (App., infra, 1a-14a)
is reported at 800 F.2d 812.  The opinion of the panel (App., infra,
15a-33a) is reported at 776 F.2d 1384.  The opinion of the district
court dismissing the complaint (App., infra, 34a-38a) is unreported.
An earlier opinion of the district court (App., infra, 39a-58a) is
reported at 539 F. Supp. 552.

                             JURISDICTION

   The judgment of the court of appeals en banc (App., infra, 59a) was
entered on September 16, 1986.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

             CONSTITUTIONAL PROVISION AND STATUTE INVOLVED

   The Fourth Amendment to the Constitution provides in pertinent
   part:

         The right of the people to be secure in their persons,
      houses, papers, and effects, against unreasonable searches and
      seizures, shall not be violated * * * .

   The Posse Comitatus Act, 18 U.S.C. 1385, provides:

         Whoever, except in cases and under circumstances authorized
      by the Constitution or Act of Congress, willfully uses any part
      of the Army or the Air Force as a posse comitatus or otherwise
      to execute the laws shall be fined not more than $10,000 or
      imprisoned not more than two years, or both.

                          QUESTIONS PRESENTED

   1. Whether the violation of a federal statute, without more, may
render unreasonable an otherwise reasonable seizure and thereby give
rise to a Fourth Amendment claim under Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971).

   2. Whether a purported violation of the Posse Comitatus Act, 18
U.S.C. 1385, without more, gives rise to a Fourth Amendment claim
under Bivens.

                               STATEMENT

   1. On February 27, 1973, an armed group of Indians occupied the
village of Wounded Knee, South Dakota, on the Pine Ridge Reservation.
Shortly after the occupation began, members of the Federal Bureau of
Investigation, the United States Marshals Service, and the Bureau of
Indian Affairs Police sealed off the village by establishing
roadblocks at all major entry and exit roads.  The standoff between
the Indians and law enforcement authorities ended about ten weeks
later with the surrender of the Indians occupying the village.  App.,
infra, 16a.

   2. In February 1975, respondents, most of whom were residents of
the Pine Ridge Reservation at the time of the occupation, brought this
action in the District Court for the District of Columbia, alleging
that petitioners, who were at that time military personnel or federal
officials, had conspired to seize and assault them and to destroy
their property, in violation of several constitutional and statutory
provisions.  Respondents' principal claim was that petitioners' use of
military personnel to assist the law enforcement efforts at Wounded
Knee violated the Posse Comitatus Act, 18 U.S.C. 1385, as well as a
purported constitutional right -- arising from that statute -- to be
free from the use of the military in the enforcement of civil laws.
App., infra, 17a, 40a-41a.

   In 1981, after the case was transferred to the District of South
Dakota, petitioners moved to dismiss the complaint.  They contended
that respondents had failed to state a claim, that there was a lack of
personal jurisdiction, and that the allegations in the complaint were
vague and conclusory.  The district court granted the motion to
dismiss in part, permitting respondents leave to file an amended
complaint.  App., infra, 39a-58a.  The court held, first, that all but
one of the named defendants had been improperly served with process
(App., infra, 41a-50a).  Next, the court determined that respondents
had failed to state a claim under 18 U.S.C. 2, 241, and 371, and under
the Posse Comitatus Act, 18 U.S.C. 1385, on which respondents had
"place(d) their primary reliance" (App., infra, 51a-53a).  The court
could not locate "the slightest indication of any legislative intent
to create a private cause of action" under these statutes (App.,
infra, 51a-52a).  /1/ Finally, the court rejected respondents'
"central" claim (App., infra, 53a) to a constitutional "right to be
free of the use of the military in the enforcement of civil law"
(App., infra, 53a-57a).  The court held that "the mere enforcement of
the law by officials who happen to be members of the military and
involving no infringement of a citizen's recognized constitutional
rights, does not present a constitutional violation giving rise to a
private cause of action" (App., infra, 56a n.7).  Because the
respondents had alleged other violations of their rights under the
First, Fourth and Fifth Amendments -- such as violations of their
freedoms of movement, right to travel, and right of assembly -- the
court did not dismiss the complaint in full (App., infra, 56a).
Instead, in light of the vagueness of the complaint (App., infra,
57a-58a), the court granted respondents leave to file an amended
complaint within 40 days.

   Respondents thereafter filed an amended complaint.  In it,
respondents again alleged -- as their only claim for relief -- that
petitioners had violated the Fourth Amendment by using the military in
contravention of the Posse Comitatus Act, 18 U.S.C. 1385 (App., infra,
35a).  The district court once more dismissed the complaint (App.,
infra, 34a-38a), holding that it could not "accept the proposition
that, because Congress has chosen to put statutory limits on the
actions of government officials, any act that goes beyond these limits
is thereby an automatic violation of the Constitution" (App., infra,
37a).  The court observed that "(j)ust as a state may impose greater
restrictions on police activity than that required under the
Constitution, so may Congress also impose greater restrictions on the
ability of the federal government to enforce laws than are imposed on
those officials by the Constitution itself" (ibid.).  Since "the
Constitution itself does not prohibit the use of the military in civil
law enforcement," and since Congress -- while limiting the role of the
military in civilian life under 18 U.S.C. 1385 -- did not create "a
private cause of action for violations of that statute," then "even
assuming defendants were all guilty of Section 1385 violations, this
fact provides no basis for (respondents') claim" (App., infra,
37a-38a).

   3. The court of appeals reversed (App., infra, 15a-33a).  The court
framed the issue as "whether a search or seizure, otherwise
permissible, can be rendered unreasonable under the Fourth Amendment
because military personnel or equipment were used to accomplish those
actions" (App., infra, 19a).  In resolving this question, the court
held, "the limits established by Congress on the use of the military
for civilian law enforcement provide a reliable guidepost by which to
evaluate the reasonableness for Fourth Amendment purposes of the
seizures and searches" (App., infra, 24a).  In particular, the court
stated, "(respondents') Fourth Amendment case * * * must stand or fall
on the proposition that military activity in connection with the
occupation of Wounded Knee violated the Posse Comitatus Act" (App.,
infra, 26a).  Relying on its previous decision in United States v.
Casper, 541 F.2d 1275 (8th Cir. 1976) (per curiam), cert. denied, 430
U.S. 970 (1977), the court stated (ibid.) that the Act was not
violated by the alleged use of military personnel, planes and cameras
for aerial surveillance;  by reliance on military advice in dealing
with the insurrection;  and by the furnishing of military equipment
and supplies.  /2/ The court held, however, that respondents'
allegations went beyond these limits, and included the purported
involvement of military personnel in "'maintain(ing) roadblocks and
armed patrols constituting an armed perimeter around the village of
Wounded Knee'" (App., infra, 29a).  To that extent, the court
concluded, respondents' allegations stated a violation of the Posse
Comitatus Act and thus gave rise to a Fourth Amendment claim
sufficient "to survive a motion to dismiss" (ibid.).  /3/

   4. The court thereafter granted petitioners' application for
rehearing en banc (see 788 F.2d 494), but after supplemental briefing
and argument the court divided 5-4 in adhering to the panel's decision
(App., infra, 1a-14a).  The majority acknowledged "that the
Constitution is conceptually and practically distinct from any Act of
Congress, and (that) it is not the law that any search and seizure
that violates a federal statute also violates the Fourth Amendment."
The court stated, however, that "the Posse Comitatus Act is a special
case" and that, in any event, "Acts of Congress * * * must be at least
prima facie evidence of what society as a whole regards as reasonable"
(ibid.), citing instances in which this Court has considered statutory
law in making decisions under the Fourth Amendment.  App., infra, 5a.
The majority therefore "adhere(d) to the decision() made by the panel,
* * * upholding as legally sufficient the Fourth Amendment theory, to
the extent that the complaint alleges a violation of the Posse
Comitatus Act" (App., infra, 10a).  /4/

   Judge Fagg, joined by three other judges, dissented (App., infra,
11a-14a).  In his view, the Posse Comitatus Act "should not be the
sole threshold consideration in determining whether an unreasonable
seizure in violation of the Fourth Amendment has occurred" (App.,
infra, 11a).  As he put it (App., infra, 11a-12a):

      To accept the court's view renders unnecessary any examination
      of the circumstances or exigencies giving rise to the actions
      taken or the scope, nature, or purpose for which the actions
      were taken.  Under the court's analysis, regardless of the lives
      saved, the property protected, and the otherwise reasonable and
      responsible actions of military officers seeking to assist civil
      law enforcment officials, a violation of the Posse Comitatus Act
      results in all other considerations becoming constitutionally
      irrelevant and per se constitutes a violation of the Fourth
      Amendment.

Judge Fagg agreed that "the Posse Comitatus Act rightfully seeks to
restrict military involvement in civilian affairs" (App., infra, 12a);
 but, he added, "(t)he Constitution itself does not prohibit or
restrict such involvement" and here "(petitioners') actions were
reasonable" (ibid.).  The dissent also noted that "by focusing wholly
on the Posse Comitatus Act (the majority) has created a private cause
of action not expressly or by implication authorized by Congress"
(App., infra, 13a).  /5/

                   REASONS FOR GRANTING THE PETITION

   The court of appeals in this case upheld as legally sufficient
respondents' Fourth Amendment claim "to the extent that the complaint
alleges a violation of the Posse Comitatus Act" (App., infra, 10a).
The decision raises two related issues of considerable and recurring
importance.

   First, by deriving its constitutional holding entirely from the
perceived statutory violation, the court of appeals spared itself the
obligation, as the dissenting judges noted, of "examin(ing) * * * the
circumstances or exigencies giving rise to the actions taken or the
scope, nature, or purpose for which the actions were taken" (App.,
infra, 11a-12a).  The court's decision rests on the incorrect premise
that the violation of at least certain statutes, without more, may
make unreasonable what is otherwise a reasonable seizure within the
meaning of the Fourth Amendment.  That holding is squarely in conflict
with several decisions of this Court that have flatly rejected any
such single-minded reliance on statutes for the meaning and content of
the Fourth Amendment.

   Second, assuming that the court's mechanical reliance on a
statutory violation were otherwise plausible, the result here is
peculiarly askew, since the statute on which the court relied simply
does not address the Fourth Amendment issue presented.  The Posse
Comitatus Act has nothing to do with the standards for reasonable
searches and seizures;  and the court of appeals' conclusion to the
contrary is at odds with the decisions of other circuits that have
considered, and rejected, analogous claims based on the Posse
Comitatus Act.  By relying on a statute that simply regulates the
deployment of certain military personnel, the court of appeals
confused the reasonableness of a search with the identity of the
searchers.  The Fourth Amendment proscribes unreasonable searches, but
does not, by its terms, address the identity of the government
officials who execute a search.  Assuming arguendo, that the latter
factor is relevant to an overall reasonableness analysis, the court of
appeals was clearly mistaken in sustaining a complaint where the only
conceivable basis for finding a Fourth Amendment violation derived
from the identity of the seizing officials.

   1. This Court has consistently made clear that "(t)o determine the
constitutonality of a seizure '(w)e must balance the nature and
quality of the intrusion on the individual's Fourth Amendment
interests against the importance of the governmental interests alleged
to justify the intrusion.'" Tennessee v. Garner, 471 U.S. 1, 8 (1985)
(quoting United States v. Place, 462 U.S. 696, 703 (1983)).  The Court
has stressed that "'the balancing of competing interests'" is "'the
key principle of the Fourth Amendment'" (Michigan v. Summers, 452 U.S.
692, 700 n.12 (1981) (citation omitted)), and that "(c)ourts must
consider the scope of the particular intrusion, the manner in which it
is conducted, the justification for initiating it, and the place in
which it is conducted" (Bell v. Wolfish, 441 U.S. 520, 559 (1979)).
And in making these balancing judgments courts cannot resort to "any
fixed formula" or "litmus-paper test" (United States v. Robinowitz,
339 U.S. 56, 63 (1950)), as "(t)he test of reasonableness cannot be
stated in rigid and absolute terms" (Harris v. United States, 331 U.S.
145, 150 (1947)).  "(W)hether a search and seizure is unreasonable
within the meaning of the Fourth Amendment depends upon the facts and
circumstances of each case * * * " (Cooper v. California, 386 U.S. 58,
59 (1967)).

   The court of appeals pretermitted this balancing of competing
interests in favor of a simple, but misleading equation:  if the
involvement of the military at Wounded Knee could be said to have
violated the Posse Comitatus Act, then the purported seizure of
respondents was necessarily unreasonable under the Fourth Amendment.
Such a truncated analysis is plainly in conflict with this Court's
insistence that questions of "reasonableness" under the Fourth
Amendment not be reduced to formulaic rules or "litmus-paper tests."

   More specifically, this Court has made clear that the content of
the Fourth Amendment cannot be determined simply by incorporating
statutory provisions.  In Cooper v. California, supra, for example,
the Court held that police officials did not violate the Fourth
Amendment when they impounded a defendant's car and thereafter
searched its contents.  The lower court had suppressed the evidence
seized during the search because the court found that the officers had
no authority under the state forfeiture statute to conduct the search.
 This Court rejected that conclusion, in language equally applicable
to the holding of the court of appeals in this case (386 U.S. at 61):

      (T)he question here is not whether the search was authorized by
      state law.  The question is rather whether the search was
      reasonable under the Fourth Amendment.  Just as a search
      authorized by state law may be an unreasonable one under that
      amendment, so may a search not expressly authorized by state law
      be justified as a constitutionally reasonable one.

In upholding the search and seizure, the Court refused simply to defer
to the lack of state authority for the search.  Instead, the Court
considered the full range of Fourth Amendment interests, including the
nature of the intrusion by the police and the justifications to
support it.  Accord, Sibron v. New York, 392 U.S. 40 59-62 (1968).

   More recently, the Court has rejected attempts to define what is a
"reasonable expectation of privacy" under the Fourth Amendment simply
by reference to statutory provisions.  In Oliver v. United States, 466
U.S. 170 (1984), the Court held that trespass laws could not create a
Fourth Amendment privacy interest in so-called "open fields." Trespass
laws, the Court held, are not designed to protect the same interests
as the Fourth Amendment.  As the Court put it (466 U.S. at 183 n.15):

      (T)he common law of trespass furthers a range of interests that
      have nothing to do with privacy and that would not be served by
      applying the strictures of trespass law to public officers.
      Criminal laws against trespass are prophylactic:  they protect
      against intruders who poach, steal livestock and crops, or
      vandalize property.  And the civil action of trespass serves the
      important function of authorizing an owner to defeat claims of
      prescription by asserting his own title.

Similarly, in Dow Chemical Co. v. United States, No. 84-1259 (May 19,
1986), rejecting a Fourth Amendment claim asserted by the plaintiff,
the Court held that trade secret law, as well as state tort law
governing unfair competition, "does not define the limits of the
Fourth Amendment" (slip op. 4).  See also Davis v. Scherer, 468 U.S.
183, 194 n.12 (1984) (unless a statute provides the basis for the
cause of action sued on, a violation of that statute does not strip
federal or state officials of their immunity).

   These cases make clear that there is no statutory short-cut to a
detailed consideration of all the factors bearing on the
reasonableness of a seizure.  The court of appeals thus erred in
holding that an otherwise permissible search or seizure could be
rendered unconstitutional solely because it was carried out in a
manner that violated the Posse Comitatus Act.  Even if that statute
were intended to address the reasonableness of a seizure -- which, as
we show below, it manifestly was not -- the court's conclusion that
Fourth Amendment reasonableness could turn exclusively on statutory
legality is in sharp conflict with this Court's precedents.  Review by
this Court is warranted.

   2. The court of appeals was, in any event, plainly mistaken in
treating the Posse Comitatus Act as a "reliable guidepost by which to
evaluate the reasonableness for Fourth Amendment purposes of the
seizures and searches in question here" (App., infra, 24a).  The
statute simply will not bear the weight that the court placed on it.

   The Posse Comitatus Act was passed in 1878 in response to
frustration in the South over the use of federal soliders to uphold
the laws of carpetbagger governments and to influence elections.  See
generally Note, Fourth Amendment and Posse Comitatus Act Restrictions
on Military Involvement in Civilian Law Enforcement, 54 Geo. Wash. L.
Rev. 404, 406-407 (1986).  Even then, however, its importance and
meaning were not entirely apparent.  See, e.g., 7 Cong. Rec. 4241-4242
(1878) (remarks of Sen. Edmunds);  id. at 4296 (remarks of Sen.
Kirkwood);  id. at 4298-4299 (remarks of Sen. Howe).  In large part,
the Act, originally attached as a rider to an army appropriations
bill, was enacted to ensure that the appropriations bill secured
sufficient Democratic votes to pass the House of Representatives.  See
id. at 4303 (remarks of Sen. Cokling);  id. at 4296, 4301 (remarks of
Sen. Bayard).  Notably, although the court of appeals deferred to the
Act as "prima facie evidence of what society as a whole regards as
reasonable" (App., infra, 5a), it appears that there has never been a
prosecution under this "obscure and all-but-forgotten statute."
Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948), cert.
denied, 336 U.S. 918 (1949).  See Rice, New Laws and Insights Encircle
the Posse Comitatus Act, 104 Mil. L. Rev. 109, 111 (1984).

   The text and structure, in fact, make plain that the Act was never
intended to furnish a definition of "reasonableness" for purposes of
the Fourth Amendment.  For example, the Act applies only to "the Army
or the Air Force";  it does not cover the Coast Guard (United States
v. Chaparro-Almeida, 679 F.2d 423, 425 (5th Cir. 1982), cert. denied,
459 U.S. 1156 (1983)), and it applies to the Navy and Marines only by
the grace of federal policy (32 C.F.R. 213.10(c)(1985);  see United
States v. Walden, 490 F.2d 372, 374-375 (4th Cir.), cert. denied, 416
U.S. 983 (1974)).  Moreover, also by its express terms, the scope of
the Act is open to ready modification by Congress.  See 32 C.F.R.
213(10)(a)(2) (listing exceptions to the Act).  Indeed, the potential
reach of the statute was measurably narrowed in 1981.  See Department
of Defense Authorization Act of 1982, Pub. L. No. 97-86, Section 905,
95 Stat. 1114-1116 (codified at 10 U.S.C. (& Supp. II) 371-376).  /6/
Finally, as the court of appeals itself recognized (App., infra,
23a-24a), under the Act the President may summon the military to
assist directly in law enforcement simply by issuing an appropriate
proclamation.  See 41 Op. Att'y Gen. 313, 326-332 (1957).  See also
Note, The Posse Comitatus Act:  Reconstruction Politics Reconsidered,
13 Am. Crim. L. Rev. 703, 714-715 & nn. 65, 66 (1976);  Note, Honored
in the Breech:  Presidential Authority to Execute the Laws With
Military Force, 83 Yale L.J. 130, 137-142 (1973).  It is impossible to
find in this statute -- riddled as it is with exceptions and
susceptible as it is to alteration by Congress and suspension by the
President -- any "reliable guidepost" by which to measure the
reasonableness of a search.

   Not surprisingly, every circuit to have considered a motion to
suppress evidence arising under the Act has refused to do so, in one
instance explicitly rejecting the broad premises applied by the court
of appeals in this case.  In that latter case, United States v.
Walden, 490 F.2d 372 (4th Cir.), cert. denied, 416 U.S. 983 (1974),
the Fourth Circuit rejected a defendant's claim that evidence should
be suppressed because military personnel had been used as undercover
agents.  The court agreed that Navy regulations implementing the Posse
Comitatus Act had been violated;  but it refused to equate that
violation with the edicts of the Fourth Amendment.  The regulations,
noted the court, "express() a policy that is for the benefit of the
people as a whole, but not one that may fairly be characterized as
expressly designed to protect the personal rights of defendants" (490
F.2d at 377 (footnote omitted)).  In this connection, the court
observed, "the policy consideration underlying the Posse Comitatus Act
is not absolute" in that "the Constitution recognizes that in certain
circumstances, military preservation and enforcement of civilian law
is appropriate" (id. at 377 n.11).  Other circuits, while not
discussing the Fourth Amendment as such, have likewise refused to
suppress evidence based on alleged violations of the Posse Comitatus
Act.  See United States v. Hartley, 796 F.2d 112, 114-115 (5th Cir.
1986);  United States v. Roberts, 779 F.2d 565, 566-568 (9th Cir.
1986);  United States v. Hartley, 678 F.2d 961, 977-978 (11th Cir.
1982), certs. denied, 459 U.S. 1170 and 1183 (1983);  United States v.
Wolffs, 594 F.2d 77, 84-85 (5th Cir. 1979).

   Moreover, the court of appeals' equation of a violation of the
Posse Comitatus Act with a violation of the Fourth Amendment is
particularly inapt because it confuses the identity of the seizing
officers with the reasonableness of the seizure they perform.  This
Court has made clear that the protections of the Fourth Amendment do
not turn on who conducts the search or seizure.  As the Court put it
in Michigan v. Tyler, 436 U.S. 499, 506 (1978), "there is no
diminution in a person's reasonable expectation of privacy nor in the
protection of the Fourth Amendment simply because the official
conducting the search wears the uniform of a firefighter rather than a
policeman * * * ." But, by the same token, there can be no greater
Fourth Amendment protection simply by virtue of the uniform of the
seizing official, and that is precisely the fallacy of the court of
appeals' decision;  it predicates the reasonableness of the search on
the simple fact that military personnel were, to some extent,
involved.

   Because the court of appeals applied a statute that does not speak
to the Fourth Amendment, in a fashion plainly at odds with the results
in other circuits, further review is warranted.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   DONALD B. AYER

      Deputy Solicitor General

   LAWRENCE S. ROBBINS

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   MARC JOHNSTON

      Attorneys

   DECEMBER 1986

   /1/ As to the claims under 18 U.S.C. 241 and 371, the district
court cited authority rejecting assertions of a civil damage remedy.
E.g., Fiorino v. Turner, 476 F. Supp. 962, 963 (D. Mass. 1979).  The
court said it had found no such direct authority concerning the
question of a private right of action under 18 U.S.C. 2 and 1385.

   /2/ To the extent that respondents based their Fourth Amendment
claim on these purported abuses by the military, the court upheld the
district court's dismissal (App., infra, 29a-30a).  The court of
appeals stated (ibid.) that "this sort of activity does not violate
the Posse Comitatus Act * * * (and) is therefore not 'unreasonable'
for Fourth Amendment purposes."

   /3/ The court rejected respondents' claims under the Due Process
Clause of the Fifth Amendment, finding "no clear support for the novel
theory" that there can be a "due-process violation by reason of the
mere fact that the confinement and other deprivations inflicted upon
(respondents) derived from military action instead of civilian" (App.,
infra, 30a).  Still, the court noted, it was "reinforced" in its
decision to uphold the dismissal of these claims "by the knowledge
that all of the proof relevant under such a theory will still come in
if and when the Fourth Amendment search-and-seizure theory goes to
trial.  In other words, (respondents) do not really need the
due-process theory in order to secure relief here, the Court having
already held that an unauthorized action by a military officer can be
'unreasonable' under the Fourth Amendment even though the same thing,
if done by a civilian official, would not." App., infra, 32a.

   The court declined to reach, on the present record, petitioners'
claims that they were not properly served and that the action was
barred by the statute of limitations (ibid.).

   /4/ The court also held that on remand petitioners might be able to
establish defenses of either absolute or qualified immunity (App.,
infra, 3a), or demonstrate that their conduct was exempted by Congress
from the reach of the Posse Comitatus Act by other legislation (App.,
infra, 3a-4a).  In addition, the court refused to reconsider the
panel's holding that "indirect or passive military involvement, such
as aerial surveillance and the furnishing of materials and supplies"
does not violate the Posse Comitatus Act and therefore states no
Fourth Amendment claim (App., infra, 10a).

   /5/ Judge Fagg found it "truly ironic that military officials who
responded to requests for assistance by civilian authorities and who
in the face of an armed uprising acted not to subvert but to preserve
and protect the Constitution and restore civilian rule now face
substantial monetary liability" (App., infra, 13a).

   /6/ The 1981 amendments expanded the statutory authority of the
military to assist civilian law enforcement officials with information
(10 U.S.C. 371), equipment and facilities (10 U.S.C. 372), and
training and advice (10 U.S.C. 373).  The amendments also permit
military personnel limited statutory authority to operate or maintain
equipment made available to civilian forces enforcing particular laws
(10 U.S.C. 374).  The court of appeals in this case held (App., infra,
22a n.8) that the 1981 amendments are irrelevant to the Fourth
Amendment analysis because they were not in effect when the seizures
at Wounded Knee occurred.  But that misses the point:  the infinite
malleability of the statute demonstrates that it was not intended to
prescribe a dispositive definition of "reasonableness" under the
Fourth Amendment.

   APPENDIX