
    Boyd v. Huffman et al.
    [Cite as Boyd v. Huffman (1972), 32 Ohio Misc. 139.]
    (No. C 70-296
    Decided April 28, 1972.)
    United States District Court, Northern District of Ohio, Western Division.
   Young, J.

This cause came to be heard on motion of defendants William H. Dailey and William Blew for recon- ■ sideration of the order filed by this court on February 23, 1972, denying defendants’ motion for summary judgment with regard to the above named defendants. Defendants have filed a memorandum in support of their motion, and plaintiff has filed a memorandum in opposition thereto. Furthermore, defendants have filed a ‘ ‘ supplemental memorandum” which should have been styled as a reply memorandum, and defendants have not applied for leave to file that memorandum. Nevertheless, this court orally informed plaintiff that he would be entitled to file another memorandum if he desired. Plaintiff has elected not to file one.

Defendants Dailey and Blew contend that because this court’s memorandum, filed February 23, 1972 (See 32 Ohio Misc. 77), was based on an erroneous fact — that the two defendants herein were defendants in Searfoss v. Morris, Civil Nos. C 70-19 and C 70-20 (N. D. Ohio, filed March 20, 1970), and committed the alleged unlawful acts of September 17, 1969, which was six months subsequent to the Searfoss decision, when in fact the acts were actually committed six months prior to Sear foss — which this court utilized in concluding that the two named defendants were not acting in good faith, this court’s prior decision should be vacated, and summary judgment rendered in favor of the defendants. Plaintiff concedes that the actual facts are as related by the defendants in their memorandum in support of their motion for reconsideration.

It is the conclusion of this court that the motion of defendants for reconsideration will not be granted on that basis alone. The memorandum of the court filed on February 23, 1972 (32 Ohio Misc. 77), was based on two reasons. The first has already been examined. The second is that good faith is not a defense to the violation of Title 42, Section 1983 of the Civil Rights Act.

After reflecting upon the second conclusion reached by this court in its prior memorandum, this court is persuaded by the recent well-reasoned opinion of the Second Circuit Court of Appeals in Bivens v. Six Unknown Agents (2d Cir. 10 CrL 2456, March 22, 1972), and has decided to grant the defendants’ motion for reconsideration. On the basis of the Bivens decision, a law enforcement officer who, in good faith and with a reasonable belief in the validity of the search and in the necessity for carrying out the search in the way it was carried out, has a defense to the violation of the plaintiff’s civil rights. See, also, C. Antieau, Federal Civil Rights Acts §§ 88, 89 (1971).

The defendants Dailey and Blew were police officers, executing a search warrant which was valid upon its face. As a practical matter of the operation of government, executive officers cannot decide for themselves whether or not to execute process which has been issued to them by a court, and which appears to be regular and valid upon its face. Taylor v. Alexander, 6 Ohio 144 (1833). And see, also, 47 American Jurisprudence, Searches and Seizures §64 (1971). Had the facts been as this court originally supposed them to be, there would necessarily exist an exception to this salutary rule, for these defendants would then have been definitely aware of the invalidity of the process issued to them, in spite of its apparent regularity upon its face. In that event, there would have been an issue of fact as to these defendants’ knowledge and involvement in the issuance of the invalid warrant. However, as the matter now stands, we have a simple case of police officers executing an apparently regular and valid search warrant. This situation is not comparable to a warrantless search. Such a search always presents factual questions of good faith and reasonableness. If a warrant is issued, the officer whose duty requires him to execute it must be protected, and be held to have acted reasonably and in good faith, absent any allegations of a conspiracy to procure the issuance of the warrant improperly. There are no allegations of any such conspiracy here. Hence, the former order of the court should be vacated, and upon reconsideration, the motion of the defendants Dailey and Blew should be granted.

An order will be entered in accordance with this opinion.  