dissenting:
I dissent primarily for the reasons stated in the opinion of the district court, Norton v. Turner, 427 F.Supp. 138 (E.D.Va.1977), which, in my view, correctly analyzes the legislative history and the scope of the 1974 amendment to the Federal Tort Claims Act, 28 U.S.C. § 2680(h). Consequently, I write briefly only to emphasize the incongruity of allowing the government to escape liability on the basis of the personal immunity of its officers.
The Supreme Court has treated the good faith defense of executive officials, including law enforcement officers, as a qualified immunity. See Wood v. Strickland, 420 U.S. 308, 313-22, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 238-249, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 555-57, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).1 Immunity is conferred because of the status of the official, but it does not diminish the tort. W. Prosser, The Law of Torts, ch. 26 at 970 (4th ed. 1971). The Chief Justice succinct*398ly explained these concepts in Scheuer v. Rhodes, supra, 416 U.S. at 241-42, 94 S.Ct. at 1689:
Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity — absolute or qualified — for their acts is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all. [emphasis added]
The government never previously belied on the immunity of its officers as a defense. It asserted its own sovereign immunity. But the 1974 amendment to the Act unequivocally waived sovereign immunity for specified torts committed by law enforcement officers. The Act does not condition the waiver of sovereign immunity on the absence of the officers’ personal immunity. No principle of common law, no statute or decisional precedent, either federal or state, authorizes the government to substitute its officers’ personal immunity for the sovereign immunity which an Act of Congress waives.
Indeed, the common law ordinarily does not permit an employer to escape liability because his employee is personally immune. The rule is stated as follows in Restatement (Second) of Agency § 217(b)(ii) (1958):
(b) The principal has no defense because of the fact that:
(ii) the agent had an immunity from civil liability as to the act.
The acceptance of this principle in Virginia, where the illegal search occurred, is illustrated by Worrell v. Worrell, 174 Va. 11, 25, 4 S.E.2d 343, 348 (1939).2
There is a fundamental difference between the qualified immunity granted a public official and sovereign immunity. A public official is afforded protection from personal liability because the public interest requires that he be free to discharge his duties in good faith without fear of being impoverished if he errs. See Scheuer v. Rhodes, supra, 416 U.S. at 241-42, 94 S.Ct. 1683. On the other hand, sovereign immunity is based on the recognition “that there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-12, 5 L.Ed. 257 (1821). The basic flaw in the government’s position is the premise that these distinctive immunities are interchangeable. They are not. By amending the Act in 1974, Congress preserved the qualified immunity of federal law enforcement officers; at the same time, it allocated to the public at large the risk of a mistake, instead of visiting the cost solely on the innocent victim of the error.
Because the judgment of the district court conformed unexceptionably to the 1974 amendment and the congressional intent that prompted this reform, I respectfully dissent.
. Other authorities refer to police officers’ pleas of good faith and reasonable belief in the legality of their conduct as a simple defense or as a privilege. See, e. g., Bivens v. Six Unknown Named Agents, etc., 456 F.2d 1339 (2d Cir. 1972) (defense); Restatement (Second) of Torts §§ 10, 121(b) (privilege). See generally, Norton v. Turner, 427 F.Supp. 138, 147 n.9 (E.D.Va.1977). Under these theories officers are considered to have done no wrong. Pressing for the acceptance of this nomenclature the government contends that it is not vicariously liable.
Of course, I prefer to follow the Supreme Court’s analysis which recognizes that the defense is a true immunity. That is to say, even though the officer has erred, the public interest in assuring the discharge of his duties grants him a qualified or absolute immunity as the case may be. Of the three theories — simple defense, privilege, and immunity — the most realistic concept is immunity. See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (absolute immunity); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (qualified immunity).
. In Worrell, the court cited with approval cases from other states permitting recovery against employers of family members based on the members’ negligence as employees even though intra-family immunities protected the employees from liability to their families.