join, dissenting.
The Posse Comitatus Act, 18 U.S.C. § 1385, was enacted by Congress during the reconstruction era in an apparent response to perceived abuses by the military in reconstruction states. The Act as enacted and until today was criminal in nature and provided no private cause of action for damages.
The court now judicially amends the Act to provide a private cause of action for individuals asserting Fourth Amendment violations. The court has no choice but to do so in light of the plaintiffs’ concession that defendants’ actions were in all other respects reasonable and nonactionable. As the panel itself recognized and the court today reconfirms, ante at 814, “[plaintiffs' 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,” Bissonette v. Haig, 776 F.2d 1384, 1389 (8th Cir.1985). Because I cannot accept the implications of the court’s decision, I must dissent.
Unlike the court, I believe the restrictions imposed by 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. 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 enforcement 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.
While the Posse Comitatus Act rightfully seeks to restrict military involvement in civilian affairs, the Act should not be viewed as constitutionally controlling. The Constitution itself does not prohibit or restrict such involvement, and in fact, there are numerous instances in this nation’s history, both before and after the adoption of the Posse Comitatus Act, when the military has been called upon to assist civilian law enforcement officials. See generally Eng-dahl, Soldiers, Riots, and Revolution: The Law and History of Military Troops in Civil Disorders, 57 Iowa L.Rev. 1 (1971). A violation of the Act cannot be viewed in isolation from the particular situation before the court. Rather, there must be a qualitative analysis of the military involvement and the circumstances that gave rise to that involvement. Because defendants’ actions were reasonable, I conclude no constitutional violation has been asserted.
Plaintiffs argue, however, that regardless of all else the actions taken by defendants cannot be constitutionally reasonable because they were felonious in nature. I agree with the court that “the Constitution is conceptually and practically distinct from any Act of Congress, and it is not the law that any search and seizure that violates a federal statute also violates the Fourth Amendment.” Ante at 814. I am further unpersuaded by plaintiffs’ argument because unlike most instances in which the action criminalized is inherently wrong and socially indefensible, the actions rendered criminal by the Posse Comitatus Act are not necessarily inherently improper. Instead, under the Act actions are equally felonious and punishable regardless of whether they are indefensible or, as here, in all respects honorable and blameless. As a result, because of the wide range of honorable and dishonorable actions falling equally within the scope of the Act, I believe that while a violation of the Act is a factor to be considered, the violation alone should not per se render equally liable for money damages the pillager and the liberator.
*818Here, it is 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. The actions taken were restrained and objectively reasonable and in the circumstances of this case fail to implicate any of the concerns identified by the panel opinion. Bissonette, 776 F.2d at 1387-88. In fact, the entire purpose behind the actions taken was to ensure and restore domestic tranquility, a goal pointedly identified by the Founding Fathers in the Preamble of the Constitution.
In addition to creating the potential for unwarranted monetary damages largely unrelated to any substantial Fourth Amendment interest, the court by focusing wholly on the Posse Comitatus Act has created a private cause of action not expressly or by implication authorized by Congress. If Congress wished to provide a private action for damages for the violation of the Posse Comitatus Act, Congress could have provided one. As allowed for in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971), and as clarified by the Supreme Court in Bush v. Lucas, 462 U.S. 367, 380, 103 S.Ct. 2404, 2412, 76 L.Ed.2d 648 (1983), there are cases, and I believe this to be one, in which Congress rather than the court should decide in the first instance whether a civil remedy should be available. See Arcoren v. Farmers Home Administration, 770 F.2d 137, 140 (8th Cir.1985).
As a final point, even accepting the court’s view, I see no reason to prolong further the present action. Defendants have raised the issue of qualified immunity in their petition for rehearing en banc. No further factual development is needed in this case to resolve this issue.
Very simply, only today, more than thirteen years after the actions in question, is it in any way “clearly established” that otherwise entirely reasonable actions of the military are rendered constitutionally unreasonable and actionable by the violation of the Posse Comitatus Act. Because no person could reasonably have been expected to know that regardless of any other consideration a violation of the Posse Comitatus Act gives rise to and in fact constitutes a per se violation of the Fourth Amendment, I would dismiss plaintiffs’ action on the basis of qualified immunity. See Davis v. Scherer, 468 U.S. 183, 193-96, 104 S.Ct. 3012, 3019-21, 82 L.Ed.2d 139 (1984); see also Mitchell v. Forsyth, 772 U.S. 511, 105 S.Ct. 2806, 2818, 86 L.Ed.2d 411 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
The decision of the district court should be affirmed.