Court Curbs Suits on U.S. Contractors : Shields Defense Industry; Rules on Pickets, Warrants

The Supreme Court gave the defense industry a broad shield from liability Monday, ruling that government contractors may not be sued for dangerous or defective products made especially for the government.

On a 5-4 vote, the high court concluded that military contractors, like the military, should be immune from paying damages to a serviceman or civilian injured by a defective product. If a fighter plane malfunctions and crashes, a helicopter loses a rotor blade or a weapon explodes in the hands of a serviceman, the manufacturer of that product cannot be sued if it was made according to U.S. government-approved specifications, the court said.

The opinion is so sweeping, the dissenters said, that it also will shield the builders of a government office tower if civilians are injured by a falling elevator or a collapsing wall.

Two Other Important Rulings

The high court issued two other important rulings Monday. Adopting the view that a family’s right to privacy extends outward to the street, the court upheld a city law banning anti-abortion picketers from demonstrating in front of an abortion doctor’s home.

The court also cut back on the so-called exclusionary rule, holding that drug evidence need not be excluded from a trial simply because federal agents illegally searched a warehouse without a warrant. If the agents had enough evidence to justify getting a warrant before their search, the evidence should not be excluded simply because they proceeded illegally without one, the court said on a 4-3 vote.

The ruling for government contractors is a major victory for the $150-billion-a-year defense industry.

‘Second-Guessing’ Curbed

Justice Antonin Scalia, writing for the court, said the ruling will prevent courts and juries from “second-guessing” decisions made by government officials. When the Pentagon is seeking a new weapon, officials must consider “the trade-off between greater safety and greater combat effectiveness,” he said.

Once the government makes its decision--for example, to purchase an extraordinarily fast but possibly dangerous fighter plane--courts should not allow suits against the manufacturer who agreed to produce that plane, he said. Allowing such suits could be costly to the government, Scalia said, because military contractors would simply pass on the cost to the Pentagon.

Scalia set forth a three-part rule: If the government approved “reasonably precise specifications” for a product, if the product “conformed to those specifications” and if the contractor told the government about any known dangers of the product, the manufacturer will be immune from liability.

Attorneys for the military industry were delighted. They said the ruling would effectively protect government contractors from most suits. The only exception would be a suit contending that the manufacturer was negligent and failed to follow the design specifications.

“We never argued that (contractors) should be immune if they forget to screw in the bolts,” said Kenneth Geller, a lawyer who represented 20 defense contractors in the case.

But Louis Franecke, a San Francisco lawyer who represented a Marine who died in a 1983 accident, said the court opinion allows companies to get off scot-free when defective products kill servicemen. He contended that most servicemen are injured or killed not by sophisticated and untried weapons like a stealth bomber, but by ordinary design mistakes such as an escape hatch that is in the wrong spot.

Lawyer Criticizes Ruling

“I’m sorry for the military families,” Franecke said. “This is the Reagan court setting up a national tort law to protect the private sector.”

The decision appears to shield Morton Thiokol Inc., maker of the shuttle Challenger, from the remaining suit contending that its defectively designed booster rocket caused the explosion that killed seven crew members. It also likely will end still pending suits against Dow Chemical Co., manufacturer of Agent Orange, for injuries suffered by servicemen in the Vietnam War.

The high court Monday specifically ruled against the family of Marine Lt. David Boyle, who was killed when his Sikorsky helicopter crashed into the sea off the Virginia coast. Boyle was seated next to an escape window when the copter went into the water but the window, which only swung outward, could not open against the press of the sea. Trapped, he drowned.

Franecke argued that the escape window was defectively designed. A jury agreed and awarded the family $725,000 in damages against United Technologies Corp., maker of the helicopter. But a federal appeals court in Richmond threw out the verdict, citing a “military contractor defense” that other appellate courts recently had formulated.

Kennedy Apparently Key

The Supreme Court, never having spoken on this issue, agreed to hear the case (Boyle vs. United Technologies, 86-492) last October. Apparently, Justice Anthony M. Kennedy cast the decisive vote. After he joined the court in February, the court announced that it was split on the issue and had the case reargued for Kennedy’s benefit. Also joining the majority were Chief Justice William H. Rehnquist and Justices Byron R. White and Sandra Day O’Connor.

In dissent, Justice William J. Brennan Jr. charged the conservatives with judicial activism. They had made up a “breathtakingly sweeping” rule to protect military contractors from liability, even though Congress pointedly had refused to enact such a law, he said.

“The court--unelected and unaccountable to the people--has unabashedly stepped into the breach to legislate a rule denying Lt. Boyle’s family the compensation that state law assures them,” Brennan said. “Had (the company) designed such a death trap for a commercial firm, Lt. Boyle’s family could sue . . . and be compensated for his tragic and unnecessary death.” He was joined by Justices Thurgood Marshall, Harry A. Blackmun and John Paul Stevens.

Exception to Rule

In the picketing case, the high court carved out an exception to its rule that public streets and parks are available for demonstrators to trumpet their views.

In this case, the town of Brookfield, Wis., was troubled by anti-abortion picketers who gathered in front of the home of an abortion doctor and shouted slogans such as: “Dr. Victoria, You’re a Killer.” In 1985, the town council passed an ordinance making it “unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the town of Brookfield.”

Several of the picketers sued, charging that the law violated their First Amendment rights to freedom of speech. A federal judge agreed and a divided appeals court in Chicago upheld that judgment.

On a 6-3 vote, the high court gave the law a narrow interpretation and reinstated it. Justice O’Connor said the town could not ban picketing in all residential areas nor could it even prevent sign carriers from walking back and forth in front of the doctor’s home. But the Brookfield ordinance is valid, she said, because it protects the “right of residential privacy” by prohibiting demonstrations targeted directly at the doctor and his family.

Clinics Not Protected

“There simply is no right to force speech into the home of an unwilling listener,” O’Connor said in the case (Frisby vs. Schultz, 87-168). Her opinion does not suggest that a city also could ban anti-abortion picketing at a clinic in a commercial area.

She was joined by Rehnquist, White, Blackmun, Scalia and Kennedy. Blackmun, author of the high court’s 1973 ruling giving women a right to an abortion, has been harassed by anti-abortion activists on occasion and a bullet was once fired through the window of his Washington home.

In the search warrant case, the justices once again found a way to uphold a drug conviction against charges that police had violated the law.

This case arose in 1983 when federal drug agents in Boston watched two men drive from a warehouse in trucks that later were found to contain bales of marijuana. Rather than getting a warrant to search the warehouse, the agents, accompanied by a U.S. attorney, broke down its doors and spotted more marijuana. Then they went back to the courthouse, and without telling a magistrate what they saw, got a warrant to search the warehouse and seize the marijuana.

Evidence for Warrant Existed

The drug dealers were convicted in the lower courts and appealed to the Supreme Court. The high court concluded that the first search was illegal but affirmed the lower courts’ decision to allow the drugs collected during the search to be admitted as evidence. Writing for the 4-3 majority, Scalia said that the agents already had enough evidence to justify a search warrant in the first place and that the government prosecutors should not be penalized for their mistake.

“While the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied,” he said in the case (Murray vs. U.S., 86-995). He was joined by Rehnquist, White and Blackmun.

In dissent, Marshall said the ruling “emasculates the Warrant Clause (of the Fourth Amendment) and encourages illegal searches.” Since 1914, the Supreme Court has required federal courts to exclude evidence that has been illegally seized but in recent years it has allowed some exceptions to that flat exclusionary rule.

Marshall said Monday’s ruling goes much further by undercutting the need to get search warrants in the first place. “The police know in advance that they have little to lose and much to gain by forgoing the bother of obtaining a warrant and undertaking an illegal search,” he wrote in a dissent joined by Stevens and O’Connor. Brennan and Kennedy took no part in the ruling.