| 0 Comments | 0 TrackBacks

Access the experimental file:

• Apple iBook. The 32 meg file can download directly to an ereader, or through any browser.

• Zipped Apple iBook. In case a direct download fails, the archive may prevent file corruption.

The good:

If you regularly use the applications from Apple's iWorks suite, iBooks Author should feel very familiar. It has a similar template based approach, and offers a half dozen attractive themes. It's easy to add interactive features as well as drag and drop m4v video and audio clips. I found that it was simple to drag from my desktop directly in to the iBooks Author window.

The bad:

A "Multi Touch Interactive Book" from iBooks Author is only viewable, readable, useable, on an Apple iOS device that runs the Apple iBook application. Initially, it was only possible on newer devices and my first generation iPad wouldn't work. A later update for the iBooks application seems to have fixed that, but I'm not sure I have all the functionality.

I'm not a regular user of Apple's iWorks suite and found the process of using and manipulating the templates to be less than intuitive. My first attempts were disastrous, and it took a few books and a lynda dot com video to get me close to acceptable speed. Testing or "previewing" your work requires an iPad that's wired to your work station. Actual publishing to the itunes bookstore, too, seemed a bit shrouded in mystery. What is iTunes Connect? Where is it?

I have to also add that even though I'm a veteran Adobe Creative Suite user, the Adobe publishing method generated even more confusion for me.


When Apple released iBooks Author there were difficulties getting specifics on distribution. Apple gave the creation software away, but retained rights to the layouts that were created. The content of the layout was still owned by the author, but the way it looked was owned by Apple. That let Apple set some conditions on distribution which initially looked limiting. Currently, you can create ibooks with Apple's iBook Author, publish them to the iTunes Bookstore for distribution, or export them as ibook or pdf files that you give away. If you sell ibooks or require payment to access ibooks you must distribute only through the iTunes Bookstore.

That allows me to distribute the sample here.

• Footnotes

So far I've found one work-around solution to the footnote problem. iBook Author lets me style a glossary entry so that it looks like a footnote, ten add the footnote text as the definition. It comes up as a pop-up on tap. During creation, I had several instances where the text wouldn't "take" for no reason that I could determine. On random occasions I've also found the superscript text hard to activate on my generation one iPad.

The original text used a somewhat random numbering system for footnotes and I tried to retain the original system. More precise numbering could be used, even incorporating paragraph numbers to aid in way finding

• Way finding

For this text, I used numbered paragraphs. Some of the outline style formatting was changed and adds a bit of confusion. On the whole, though, navigation can be called up with a tap or a pinch.

• Media

There was no problem adding nor playing media. Video must be in the .m4v format, though- something easily exported from Mac OSX Quicktime.

• Print

This is still up in the air.


• Download iBooks Author Free software to create and publish multi-touch books on any Mac running OSX 7 or higher.

• iTunes Connect Log in to the ticketing system.

• Publish to the iBookstore Download iTunes Producer, create a free or paid account.


• iBooks FAQ This is part of Apples information.

• iBookstore Affiliate's Overview The affiliate program allows you to place links on your website to the iTunes Store, App Store, iBookstore, and Mac App Store.

• iBooks textbooks for iPad Read about Apple's vision for textbooks.

• iBooks Author Essential Training Very well done series of iBook Author training videos at lynda.com. Free for Penn Staters.


| 0 Comments | 0 TrackBacks

Access the experimental file:

• ePub ebook. The file can download directly to an ereader, or through any browser.

The good:

The EPUB code specification is an international standard. Once downloaded, an ePub book is readable without an internet connection. It utilizes all of the qualities of the specific reader's software environment: such as attaching notes, using an embedded dictionary, changing font sizes, or playing media.

The bad:

There are several formats for ebooks and all readers don't read all formats. Those readers that do read ePub ebooks each support the format differently. Most do not support embedded media. Currently, ePub is inaccessible; ebook readers don't work with the majority of assistive technologies.


ePub files are at their core very similar to html. They are comprised of xml documents that are necessary for the format, but what the user actually reads is xhtml with css styling. ePub, now at version 2, actually only supports a subset of CSS2.1, and technically doesn't support media yet, but does support html5 media tags in xhtml on Apple devices. So it's evolving like other technologies, and is implemented with differences depending on device and platform. Many of the features of ePubs come from the device being used. The iPad, for instance, numbers pages, has built in controls for navigating, tracks where the user leaves off, and has a built in dictionary. Page numbering isn't consistent though, and will vary with a users font choices. That makes referring to a specific place difficult, and paragraph numbering may be important.

For distribution, users seem to be aware of the book stores on iTunes and Amazon, but that sort of distribution isn't necessary: an ePub can be downloaded through any browser, including iPad's web browser. From the iPad browser, the user is prompted to say where the epub will be read; there are several readers on the iPad each displaying the text and link interactions in a slightly different way.

To produce an ePub, special software isn't absolutely necessary, though it's likely to be the preferred option. A folder with all of the required xml files can be created then compressed into an ePub. A Word document can be created, formatted and styled, then exported as html; those files, even if from a veteran Word user, will need to be adjusted in a text editor like Notepad or TextEdit. Those simple text editors can even be used to create the files8212;valid xhtml and css files—completely from scratch. After a set of valid documents is made, the directory needs to be compressed as an ePub. I mention Word here because it's one of our most common tools and it doesn't export in the ePub format. That's unfortunate, and may change. Other common applications, including Pages and Open Office, can export ePub files. The most common application for ePub production is InDesign; possibly because it's already on most producer's desktops. If someone is skilled with InDesign, exporting an ePub is fairly simple and the added techniques needed for tables of contents, links and media are well documented. Our process was to generate an initial ePub document with InDesign, then adjust the html and css directly using Sigil. Sigil typically estructures an ePub slightly, but retains all links and functionality through the adjustment.

There are some difficulties with production: there are new methods and skills, new requirements. There are, though, lots of free applications for producing and managing ePubs. The more telling difficulties with an ePub are in it's use. It's not currently an accessible medium, and it doesn't display embedded media on all, or even most, devices.

• Footnotes

Footnotes were added as an extra section at the end of the book. To have the requested footnote appear at the top of the page, without additional notes to perhaps confuse a reader, the notes are styled, as with the html version, to have additional space after the note. It's functional, but in the ePub it makes the footnotes each appear on their own page. Using the links, this isn't difficult at all; it just gives an inflated sense of how long the text actually is. The shift in pages feels less jarring in the iPad's iBooks application than the same shift in the html version in iPad's Safari. I Adobe Digital Editions, the action is somewhat slower than on an iPad so the user may initially think the links don't work. The hot spot for the link is also small on ADE: the graphic asterisk isn't included in the linked text, only the superscript and underscore. The notes aren't isolated on a page by style in ADE; what appears is a solid page of notes.

Javascript links didn't work at all, and may need more time for acceptance or more experimentation on our part.

• Way finding

Navigating an ePub is fairly easy. The reader software remembers what page the user last was on, and provides a slider with a readout of page numbers by chapter. Even with linked footnotes, the software remembers where the user was when they clicked the footnote and offers a link at the bottom of the page to return. Links within the ePub work well. There are several ways to produce a linked table of contents in an ePub. InDesign will create one based on heading styles or document titles in a book. Sigil, too will create a linked TOC based on heading tags and document structure.

Links to internet locations work on an iPad, however the transition from iBooks to Safari is a bit of a jolt. The links to the Lexis system, for instance, ask the user if they want to leave the book to open the web browser. In Adobe Digital Editions on a Mac, the web links cause the reader to lose focus, but no web URL gets resolved. In tests, BBEdit was launched. Footnote links function as expected with minimal disruption, though as noted elsewhere, the hit area is reduced in ADE. Linking between books doesn't seem to work, so links from the Chapter 3 epub volume to related material in chapter 2 won't work.

• Media

The current standard for ePub is ePub 2, which is xhtml based. The tags that will embed madia in an ePub are html5 tags. Apple will accept those html5 media tags in an xhtml based ePub. Other readers will not. Currently, we can't assume a user will be able to access media in an ePub. Adobe's Digital Editions doesn't even let the user know that there is missing media.

• Print

Printing an ePub is often difficult, but printing small sections from an ePub that doesn't have DRM protecting it is possible. With the Liabilities ePub on an iPad, it's possible to copy a section of text and paste it into a note, an email, or another text capable app. That document can be transferred to a device that can print. The iPad 2 is print enabled with its own AirPrint app, so pasted text should print from one of the print enabled apps. Apple claims that AirPrint will let the user print "a PDF from iBooks" and says nothing about ePubs. Adobe Digital Editions has a print button built in that will print an ePub that permits it.


• Sigil Sigil is free, open-source, multi-platform WYSIWYG ebook editor. It allows you to edit the internal files; but it does re-structure your epub slightly in the process.

• Adobe Digital Editions software Free ebook reading software for Windows and Mac. Read epub files and preview InDesign epub exports on your computer.

• Calibre ebook management software Free software available for Windows, Mac and Linux. Convert.epub to.mobi

• Convert Word to ePub. It actually works- save as html from Word, upload it, and download an ePub from the web site. UTF-8 only, with well formed H2 and H3 tags, 3 uploads per day.

• Springy- access for Mac Software free for files up to 50megs in size. Allows Mac users to access epub files directly.

• eCub Free software for creating ePubs. It's cross-platform.

• Jutoh Free software for creating ePubs. It's cross-platform, similar to eCub but with WYSIWYG capabilities.


• Threepress Consulting ePub validation. This validator checks DRM-free ePub documents up to 10 megs in size. They offer a downloadable local tool for large files and higher volumes.

• EpubCheck tool to validate IDPF EPUB files. It can detect many types of errors in EPUB. OCF container structure, OPF and OPS mark-up are checked. EpubCheck can be run as a standalone command-line tool, installed as a Java server-side web application or used as a Java library. Note that you must be able to run Java from the command-line and be familiar with command-line tools to use this effectively.

• How to export epub from InDesign Very basic instructions. You'll need to understand InDesign's handling of books- different than regular indd files. They're a compilation of several indd files.

• Create eBooks Adobe's resource page, includes videos on how to create epub books with InDesign.

• International Digital Publishing Forum ePub specifications As of this post, the latest stable version of EPUB is EPUB 2.0.1, which was approved in 2010. ePub3 is in process.

• idpf ePub3 specifications html5 based ePub 3 is being pushed heavily, though at this point nothing reads it. This is an overview of the most recent developments.

• Accessibility of Adobe Digital Editions As of this writing, JAWS v.12 users can interact with an ePub via Adobe Digital Editions v.1.8. Mac VoiceOver users can as well. That's it. This post has more specifics.

• InDesign CS5.5 to EPUB, Kindle, and iPad Good series of videos on using InDesign to start an ePub, and use other tools to tweak the files.

• epub straight to the point If you purchase a book, Liz Castro's are clear, and are available as ePubs. Not only are the instructions valuable, the files themselves contain no DRM and can be scrutinized closely.


| 0 Comments | 0 TrackBacks

Access these experimental files:

• PDF, interactive footnotes.
Prepared primarily in Acrobat, footnotes go to "endnotes" in the same document. Links to Lexis are coded and media is embedded.

• PDF, footnotes on page bottom. Prepared primarily in InDesign, with footnotes on the page entered with InDesign's "accessible" footnote tools. To expedite delivery of this footnote example, external links aren't coded in this example.

The good:

PDF is easy to print, media can be embedded, and layout is consistent across platforms and devices. Plugins required for reading are ubiquitous, and production can be as simple as saving as PDF from Microsoft Word, or printing to PDF from your editor of choice.

The bad:

Once produced a PDF is somewhat difficult to edit. Small text corrections can be made and entire pages inserted or deleted, but shifting text to add a paragraph is just about impossible without recreating the document. Media doesn't display in all readers that may be used for reading a PDF.


The original Civil Liberties Litigation text has a PDF version available for printing. Footnotes exist on the page bottom in classic fashion. The pages are numbered, and the numbering remains consistent as the font size and page layout are not changeable. The page numbers occasionally coincide with the labeled page number anchors in the original html text, but relying on the numbers to facilitate discussion may not always work. There are no links in the original PDF and there's no embedded media.

To create our PDF, we used InDesign to format the text. The primary change in layout is in font-face and line height. In the version with classic footnotes, we used a serif font at a slightly smaller point size to allow more space between lines, without adding to the document length. Our lines of text are also shorter, the combined effect being a text that's somewhat easier to read. In the original PDF, as in the original html, footnotes follow a numbering convention that I had trouble following. The first footnote is numbered "4" then it continues "5, 6, 2, 4..." in the same chapter. Our PDF with interactive footnotes retains this structure. The footnotes in our version that's styled classically, though, have numbers applied as part of an InDesign system that links the numbers in the text with the footnotes at the page bottom for screen readers. The numbers start with "1" in each of the four sub-sections. I could see no way of retaining the accessibility hooks and the original numbering. I don't know how beneficial the linking is. The first version, with linked interactive footnotes, had all linking created in Adobe Acrobat after the PDF was formatted and exported from InDesign.

We also embedded media in one PDF. We used a captioned version since there might not always be a way to retrieve a captioned version after the initial download. To embed, we had to convert our captioned media to Flash Video. Not all formats will work.

Since ease of production is also an issue, there are several PDF versions that were made by using Acrobat to download and produce a PDF from a website. It was easy, but the results are mixed. Links are retained, but javascript won't work. Footnote links end up trying to open the footnotes in a browser- which will actually provide a footnote if the files are left in place. The Create from Website option in Acrobat is also able to embed media, but it wouldn't in any of our attempts. If the option is used to provide an initial layout for further tweaking in Acrobat, printing the HTML5 version to PDF works well, though links are not "linked".

To save time in trying the option, there are three versions here that aren't listed with the options primarily because of their failure:
• Acrobat PDF produced from the original site's URL.
• Acrobat PDF produced from our HTML5 site's URL.
• Acrobat PDF produced from our XHTML site's URL.

• Footnotes

With InDesign, it's possible to create accessible linking from footnote indicator to footnote text at the bottom of the page. Without the bond, footnote text is read by assistive devices within the regular flow of text. Internal footnotes can also be created with linking to endnotes and back to the text.

• Way finding

Since internal links will work, a linked table of contents is easy to prepare, and is viewable in the versions created from web pages. Hand linking is a bit more labor intensive. PDF has the added feature of page thumbnails that can be set to display or not when the document is opened. Links to sites on the internet will open in a browser.

• Media

Media can be embedded in the PDF to add to it's portability. Not all video formats are supported, though; currently, video needs to be Fash video or H.264. It can be placed with InDesign or Acrobat. We used Acrobat for our sample. It won't play in all viewers, though. Flash video in a PDF doesn't use external players but relies on the Flash Player that's embedded in Acrobat Reader. Preview on a Mac, for instance, will not display the media.

• Print

PDF retains the documents original layout. For that reason, it works well as a format intended for printing. Fonts and high resolution images can be embedded.


• Many text editors can export or print to PDF. With proper heading styles, Microsoft Word will save as an accessible PDF. For finer layout control, media inclusion, or advanced editing, other software is needed.

• Acrobat 10 Pro Software available through Penn State Computer Store.

• InDesign CS5.5 Software available through Penn State Computer Store.


• Acrobat 10 Pro Help Guide The manual for Acrobat software.

• InDesign CS5 & CS5.5 Help Guide The manual for InDesign software.

• InDesign CS5.5 accessibility Guidance on using InDesign to prepare accessible PDF files.

• Making a WCAG2 compliant PDF Recorded Adobe Connect presentation. Adobe has other resources on creating accessible files. I mention it here, even though it's a universal concern, because PDF has traditionally been viewed as inaccessible.

Standards based html

| 0 Comments | 0 TrackBacks

View these experimental sites:

• HTML 5, no script. The footnotes are navigated within the simple html structure. With a print stylesheet.

• HTML 5, no script, auto-numbered paragraphs. This version uses css to number paragraphs for easy reference. With a print stylesheet.

• HTML 5, no script, hand numbered paragraphs. Paragraph numbers are entered by hand to afford control through any additions.

• HTML 5, javascript pop-up footnotes. Same javascript footnote access as the original.

• XHTML HTML5 degrades very well, but in case there are issues, this is valid XHTML.

• XHTML as a Blog Post An obvious solution once the code is available.

The good:

HTML is relatively easy to create, edit, and update. The text can be made universally accessible and clearly navigable. Current online services like diigo and instapaper allow group discussion and caching for offline use.

The bad:

Publishing with html requires access to a web server to host the content and a basic knowledge of html and css. Not that bad.


The entire Civil Liberties Litigation text is freely available as html on the internet. In its current digital edition it returns a large number (over 2000) of errors in the Markup Validation Service at the W3C website and some minor errors in the Functional Accessibility Evaluator at U. Illinois' site for the individual chapter text as it appears outside of its navigational frame. Valid html code is necessary to assure consistent rendering in the different browsers and platforms that may be used to access the text. Code validation is also a primary step in rendering content that's accessible to assistive technologies.

Correcting the errors in html is straight forward: run the document through the Validator, correct the errors that are pointed out, then check again. All that's needed is basic html skills, access to the W3C Validator and a text editor like Notepad for Windows or BBEdit on a Mac. It is time intensive, though, and the number of errors is a bit daunting. HTMLTidy is a popular online service for automatically cleaning up html, but it still resulted in html with over 300 errors. The most effective 'automatic service' turned out to be using code generated by instapaper when the text is saved for off-line reading: the code had four errors. It still required attentive editing, though; and a combination of hand coding and large chunks of instapaper code worked well

An initial decision needs to be made on the version of html: xhtml or html5. The argument for html5 seems to point primarily at the ease with which media can be included. A video appears in one of several formats depending on user platform and browser. Of course, those formats need to be created and uploaded to be available. Xhtml is universally supported, and also forms the code within an ePub. If coded to meet xhtml standards, changing the doctype to html5 is fairly easy. Both versions are accessible, can be standards compliant, and seem to support the javascript used for footnotes(important only if that's kept.) Both versions respond to the CSS needed.

If the text is rendered in a blog post, the platform doesn't allow for the complex formatting necessary. The law text has blockquotes nested within blockquotes, nested within nested lists. To get the text into a blog post to test the capabilities, the xhtml code was entered into the Edit Entry field. To enter, edit and update, the blog format may still require a knowledge of html and css to effectively present the information.

• Footnotes

There are just over 40 footnotes in this chapter. Sources writing about the accessibility of websites all recommend against using footnotes, opting instead to incorporate the footnote into the body of the text. That might not be possible in all of the instances here- a few notes are quite long. We present the footnotes as javascript controlled pop-up windows, like the original, but also as end notes accessed by hand coded links first to the note then back. This method seemed less jarring than a pop-up. If viewed in the Safari browser on an iPad, both methods seem to be somewhat jarring, as only one window is ever open at a time. I preferred the somewhat smoother operation of linked end notes. When surveyed on preferences, colleagues said they liked pop-ups generally because they're easy to dismiss. They did comment further that they find footnotes annoying and never read them anyway. There may be some truth here; several of the original footnotes were coded incorrectly, returning errors. They've been fixed in this test version.

If the code is to be entered into an ePub, javascript is gaining some acceptance, but it's very buggy, and shows minimal support in only a few readers.

• Way finding

The chapter entered into a blog post would give opportunity to comment, but there's no easy way to pin point a specific phrase in discussion. Numbered paragraphs seem to provide a bit of accuracy. Numbers would be an odd addition in a novel, but if styled to be offset from the text, they can be less noticeable. One method of numbering is done easily with CSS. The method just requires a few lines to place a counter in front of every paragraph. If done in this way, though, any text changes or additions would change the numbers from that place in the text and render any references to numbered paragraphs incorrect. Hand numbering was relatively easy with an editor's search and replace feature. It would also allow the addition of text using decimals in the numbers so that the scheme remains.

Though frames are accessible if properly labeled, they're getting deprecated in favor of iframes (when necessary) as html moves forward. Due to the width of some devices, styling the frame navigation to conform to a handheld layout is difficult. Navigation through the chapter is more direct and more accessible with an outline coded as navigation at the document's beginning: the logical place. Links back to the top appear throughout for convenience, though the absolute top is easy enough to find.

It's important to mention a few changes that were made for improved usability. In the original text, there are several types of links, two noteworthy being links to footnotes and links to the Lexis law library. Each is represented and linked by a triangle image: red for footnotes and green for the Lexis system. In our html, the links were expanded to make a larger "hit" area, and destination specific alt text was added to the images. The originals, too, were identical, but one was red and one was green. The images were replaced by a small round Lexis icon for the Lexis links and an enlarged asterisk, a universal footnote symbol, for the footnotes.

• Media

There is no media in the original chapter, only a link to a video clip. Whether the media is linked to or embedded, a decision on size and format needs to be made. In our version, we provide a link to a captioned clip, and also embed a captioned version in our xhtml version. If the clips are to be embedded, it makes sense to use a captioned version as the only version. Html5 allows the inclusion of several different formats, with the user's browser playing the first format available. iPad's require .m4v, and at one point actually required it to be listed first. We've done that, and also followed with .mov, mp4, .webm, .ogv, and .wmv. The Xhtml version can easily handle embedded media, too; finding the single type and coding style to embed media isn't a sure thing. In our version we use Quicktime's .mov in an object tag with coding for internet explorer. That seems to work every place we tested.

• Print

Nothing was clearly stated in the original request to create a printable version. It's clear from the original that pains were taken to retain page numbers in the html- they exist in named anchor tags throughout the html, though I've found many to be missing and those that are present don't align with the page numbers of the pdf provided for printing. In our html versions, we've provided a separate print stylesheet that allows a user to either print the document, print selected pages, or print to PDF. The stylesheet guarantees content only needs to be updated in one place. If numbered paragraphs are used, wayfinding remains constant. The footnotes do need to appear as end notes in this format.


• TextWrangler I usually create html and css in BBEdit. BareBones software has this fully functional free version for Mac.

• W3C Markup Validation Service This validator checks the markup standards compliance of Web documents in HTML, XHTML, SMIL, MathML. It works by file upload or URL.


• W3C HTML5: Edition for Web Authors This is a subset of the full html 5 specification. It's fairly technical, but definitive.

• Dive into HTML5 Mark Pilgrim's very readable guide to html 5.

• Dive into HTML5 (active) Mark Pilgrim needed a break- his work has been re-published several places. This is one.

• Responsive Web Design Explanation of the topic by Ethan Marcotte on A List Apart.

• diigo An online bookmarking tool that provides group management, collaborative research, highlighting, notation, and other services around web content.

• diigo help videos on youtube.

• instapaper An online tool that provides storage of articles for off line reading. There's an instapaper app for iphone and iPad.

This is not my post. It's a chapter in Gary Gilden's book entered here strictly as a test. Professor Gilden owns the copyright and reserves all rights.



A. Absolute Immunity


386 U.S.547 (1967) Pierson v. Ray


Watch the Freedom Riders video clip at 1280x720
© Blackside, Inc. Boston, MA 1986Footnote.

Mr. Chief Justice Warren delivered the opinion of the Court.

These cases present issues involving the liability of local police officers and judges under § 1 of the Civil Rights Act of 1871, 17 Stat. 13, now 42 U. S. C. § 1983. Petitioners in No. 79 were members of a group of 15 white and Negro Episcopal clergymen who attempted to use segregated facilities at an interstate bus terminal in Jackson, Mississippi, in 1961. They were arrested by respondents Ray, Griffith, and Nichols, policemen of the City of Jackson, and charged with violating § 2087.5 of the Mississippi Code, which makes guilty of a misdemeanor anyone who congregates with others in a public place under circumstances such that a breach of the peace may be occasioned thereby, and refuses to move on when ordered to do so by a police officer. Petitioners waived a jury trial and were convicted of the offense by respondent Spencer, a municipal police justice. They were each given the maximum sentence of four months in jail and a fine of $200. On appeal petitioner Jones was accorded a trial de novo in the County Court, and after the city produced its evidence the court granted his motion for a directed verdict. The cases against the other petitioners were then dropped.

Having been vindicated in the County Court, petitioners brought this action for damages in the United States District Court for the Southern District of Mississippi, Jackson Division, alleging that respondents had violated § 1983, supra, and that respondents were liable at common law for false arrest and imprisonment. A jury returned verdicts for respondents on both counts. On appeal, the Court of Appeals for the Fifth Circuit held that respondent Spencer was immune from liability under both § 1983 and the common law of Mississippi for acts committed within his judicial jurisdiction. 352 F.2d 213. As to the police officers, the court noted that § 2087.5 of the Mississippi Code was held unconstitutional as applied to similar facts in Thomas v. Mississippi At LexisNexis., 380 U.S. 524 (1965).4Footnote. Although Thomas was decided years after the arrest involved in this trial, the court held that the policemen would be liable in a suit under § 1983 for an unconstitutional arrest even if they acted in good faith and with probable cause in making an arrest under a state statute not yet held invalid. The court believed that this stern result was required by Monroe v. Pape, 365 U.S. 167 (1961). Under the count based on the common law of Mississippi, however, it held that the policemen would not be liable if they had probable cause to believe that the statute had been violated, because Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not. Apparently dismissing the common-law claim,5Footnote. the Court of Appeals reversed and remanded for a new trial on the § 1983 claim against the police officers because defense counsel had been allowed to cross-examine the ministers on various irrelevant and prejudicial matters, particularly including an alleged convergence of their views on racial justice with those of the Communist Party. At the new trial, however, the court held that the ministers could not recover if it were proved that they went to Mississippi anticipating that they would be illegally arrested because such action would constitute consent to the arrest under the principle of volenti non fit injuria, he who consents to a wrong cannot be injured.

We granted certiorari in No. 79 to consider whether a local judge is liable for damages under § 1983 for an unconstitutional conviction and whether the ministers should be denied recovery against the police officers if they acted with the anticipation that they would be illegally arrested. We also granted the police officers’ petition in No. 94 to determine if the Court of Appeals correctly held that they could not assert the defense of good faith and probable cause to an action under § 1983 for unconstitutional arrest.6Footnote.

* * * * *

We find no difficulty in agreeing with the Court of Appeals that Judge Spencer is immune from liability for damages for his role in these convictions. The record is barren of any proof or specific allegation that Judge Spencer played any role in these arrests and convictions other than to adjudge petitioners guilty when their cases came before his court. Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher At LexisNexis., 13 Wall. 335 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it “is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” (Scott v. Stansfield, L. R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.

We do not believe that this settled principle of law was abolished by § 1983, which makes liable “every person” who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove At LexisNexis., 341 U.S. 367 (1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.

The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is rather that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Restatement, (Second), Torts § 121 (1965); 1 Harper & James, The Law of Torts § 3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co. of Maryland, 179 F.2d 327 (C. A. 8th Cir. 1950). A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.

The Court of Appeals held that the officers had such a limited privilege under the common law of Mississippi, and indicated that it would have recognized a similar privilege under § 1983 except that it felt compelled to hold otherwise by our decision in Monroe v. Pape, 365 U.S. 167 (1961). Monroe v. Pape presented no question of immunity, however, and none was decided.

* * * * *

We also held that the complaint should not be dismissed for failure to state that the officers had “a specific intent to deprive a person of a federal right,” but this holding, which related to requirements of pleading, carried no implications as to which defenses would be available to the police officers. As we went on to say in the same paragraph, § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” 365 U.S., at 187. Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.

We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983. This holding does not, however, mean that the count based thereon should be dismissed. The Court of Appeals ordered dismissal of the common-law count on the theory that the police officers were not required to predict our decision in Thomas v. Mississippi, 380 U.S. 524. We agree that a police officer is not charged with predicting the future course of constitutional law. But the petitioners in this case did not simply argue that they were arrested under a statute later held unconstitutional. They claimed and attempted to prove that the police officers arrested them solely for attempting to use the “White Only” waiting room, that no crowd was present, and that no one threatened violence or seemed about to cause a disturbance. The officers did not defend on the theory that they believed in good faith that it was constitutional to arrest the ministers solely for using the waiting room. Rather, they claimed and attempted to prove that they did not arrest the ministers for the purpose of preserving the custom of segregation in Mississippi, but solely for the purpose of preventing violence. They testified, in contradiction to the ministers, that a crowd gathered and that imminent violence was likely. If the jury believed the testimony of the officers and disbelieved that of the ministers, and if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact unconstitutional. The jury did resolve the factual issues in favor of the officers but, for reasons previously stated, its verdict was influenced by irrelevant and prejudicial evidence. Accordingly, the case must be remanded to the trial court for a new trial.

* * * * *

Mr. Justice Douglas, dissenting.

I do not think that all judges, under all circumstances, no matter how outrageous their conduct are immune from suit under 17 Stat. 13, 42 U. S. C. § 1983. The Court’s ruling is not justified by the admitted need for a vigorous and independent judiciary, is not commanded by the common-law doctrine of judicial immunity, and does not follow inexorably from our prior decisions.

The statute, which came on the books as § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, provides that “every person” who under color of state law or custom “subjects, or causes to be subjected, any citizen … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” To most, “every person” would mean every person, not every person except judges. Despite the plain import of those words, the Court decided in Tenney v. Brandhove At LexisNexis., 341 U.S. 367, that state legislators are immune from suit as long as the deprivation of civil rights which they caused a person occurred while the legislators “were acting in a field where legislators traditionally have power to act.” Id., at 379. I dissented from the creation of that judicial exception as I do from the creation of the present one.

The congressional purpose seems to me to be clear. A condition of lawlessness existed in certain of the States, under which people were being denied their civil rights. Congress intended to provide a remedy for the wrongs being perpetrated. And its members were not unaware that certain members of the judiciary were implicated in the state of affairs which the statute was intended to rectify. It was often noted that “immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.” Cong. Globe, 42d Cong., 1st Sess., 374.

* * * * *

It is said that, at the time of the statute’s enactment, the doctrine of judicial immunity was well settled and that Congress cannot be presumed to have intended to abrogate the doctrine since it did not clearly evince such a purpose. This view is beset by many difficulties. It assumes that Congress could and should specify in advance all the possible circumstances to which a remedial statute might apply and state which cases are within the scope of a statute.

“Underlying [this] view is an atomistic conception of intention, coupled with what may be called a pointer theory of meaning. This view conceives the mind to be directed toward individual things, rather than toward general ideas, toward distinct situations of fact rather than toward some significance in human affairs that these situations may share. If this view were taken seriously, then we would have to regard the intention of the draftsman of a statute directed against ‘dangerous weapons’ as being directed toward an endless series of individual objects: revolvers, automatic pistols, daggers, Bowie knives, etc. If a court applies the statute to a weapon its draftsman had not thought of, then it would be ‘legislating,’ not ‘interpreting,’ as even more obviously it would be if it were to apply the statute to a weapon not yet invented when the statute was passed.” Fuller, The Morality of Law 84 (1964).

Congress of course acts in the context of existing common-law rules, and in construing a statute a court considers the “common law before the making of the Act.” Heydon’s Case, 3 Co. Rep. 7 a, 76 Eng. Rep. 637 (Ex. 1584). But Congress enacts a statute to remedy the inadequacies of the pre-existing law, including the common law. It cannot be presumed that the common law is the perfection of reason, is superior to statutory law (Sedgwick, Construction of Statutes 270 (1st ed. 1857); Pound, Common Law and Legislation, 21 Harv. L. Rev. 383, 404-406 (1908)), and that the legislature always changes law for the worse. Nor should the canon of construction “statutes in derogation of the common law are to be strictly construed” be applied so as to weaken a remedial statute whose purpose is to remedy the defects of the pre-existing law.

The position that Congress did not intend to change the common-law rule of judicial immunity ignores the fact that every member of Congress who spoke to the issue assumed that the words of the statute meant what they said and that judges would be liable. Many members of Congress objected to the statute because it imposed liability on members of the judiciary.

* * * * *

Yet despite the repeated fears of its opponents, and the explicit recognition that the section would subject judges to suit, the section remained as it was proposed: it applied to “any person.”2Footnote. There was no exception for members of the judiciary. In light of the sharply contested nature of the issue of judicial immunity it would be reasonable to assume that the judiciary would have been expressly exempted from the wide sweep of the section, if Congress had intended such a result.

The section’s purpose was to provide redress for the deprivation of civil rights. It was recognized that certain members of the judiciary were instruments of oppression and were partially responsible for the wrongs to be remedied. The parade of cases coming to this Court shows that a similar condition now obtains in some of the States. Some state courts have been instruments of suppression of civil rights. The methods may have changed; the means may have become more subtle; but the wrong to be remedied still exists.

* * * * *

The immunity which the Court today grants the judiciary is not necessary to preserve an independent judiciary. If the threat of civil action lies in the background of litigation, so the argument goes, judges will be reluctant to exercise the discretion and judgment inherent in their position and vital to the effective operation of the judiciary. We should, of course, not protect a member of the judiciary “who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good.” Gregoire v. Biddle, 177 F.2d 579, 581. To deny recovery to a person injured by the ruling of a judge acting for personal gain or out of personal motives would be “monstrous.” Ibid. But, it is argued that absolute immunity is necessary to prevent the chilling effects of a judicial inquiry, or the threat of such inquiry, into whether, in fact, a judge has been unfaithful to his oath of office. Thus, it is necessary to protect the guilty as well as the innocent.4Footnote.

* * * * *

The argument that the actions of public officials must not be subjected to judicial scrutiny because to do so would have an inhibiting effect on their work, is but a more sophisticated manner of saying "The King can do no wrong."

* * * * *

This is not to say that a judge who makes an honest mistake should be subjected to civil liability. It is necessary to exempt judges from liability for the consequences of their honest mistakes. The judicial function involves an informed exercise of judgment. It is often necessary to choose between differing versions of fact, to reconcile opposing interests, and to decide closely contested issues. Decisions must often be made in the heat of trial. A vigorous and independent mind is needed to perform such delicate tasks. It would be unfair to require a judge to exercise his independent judgment and then to punish him for having exercised it in a manner which, in retrospect, was erroneous. Imposing liability for mistaken, though honest judicial acts, would curb the independent mind and spirit needed to perform judicial functions. Thus, a judge who sustains a conviction on what he forthrightly considers adequate evidence should not be subjected to liability when an appellate court decides that the evidence was not adequate. Nor should a judge who allows a conviction under what is later held an unconstitutional statute.

But that is far different from saying that a judge shall be immune from the consequences of any of his judicial actions, and that he shall not be liable for the knowing and intentional deprivation of a person’s civil rights. What about the judge who conspires with local law enforcement officers to "railroad" a dissenter? What about the judge who knowingly turns a trial into a "kangaroo" court? Or one who intentionally flouts the Constitution in order to obtain a conviction? Congress, I think, concluded that the evils of allowing intentional, knowing deprivations of civil rights to go unredressed far outweighed the speculative inhibiting effects which might attend an inquiry into a judicial deprivation of civil rights.6Footnote.

The plight of the oppressed is indeed serious. Under City of Greenwood v. Peacock At LexisNexis., 384 U.S. 808, the defendant cannot remove to a federal court to prevent a state court from depriving him of his civil rights. And under the rule announced today, the person cannot recover damages for the deprivation.


Notes on Pierson v. Ray


Absolute Immunity under Section 1983

  1. What are the policies that justify judicial immunity? Must the immunity be absolute to serve these purposes? Who bears the risk of loss of the constitutional deprivation where the individual state official who violated the Constitution is absolutely immune?
  2. In Scheuer v. Rhodes At LexisNexis., 416 U.S. 232, 248-9 (1974), the Supreme Court rejected a claim of absolute immunity for state executive officers under 42 U.S.C. § 1983:

    Under the criteria developed by precedents of this Court, § 1983 would be drained of meaning were we to hold that the acts of a governor or other high executive officer have “the quality of a supreme and unchangeable edict, overriding all conflicting rights of property and unreviewable through the judicial power of the Federal Government.” Sterling v. Constantin At LexisNexis., 287 U.S. at 397, 77 L.Ed. 375, 53 S. Ct. 190. In Sterling, Mr. Chief Justice Hughes put it in these terms:

    “If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases, the futility of which the State may at any time disclose by the simple process of transferring powers of legislation to the Governor to be exercised by him, beyond control, upon his assertion of necessity. Under our system of government, such a conclusion is obviously untenable. There is no such avenue of escape from the paramount authority of the Federal Constitution. When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression.” Id.At LexisNexis., at 397-398, 77 L.Ed. 375.

    Is absolute judicial immunity distinguishable?

  3. What is the source of the exemption of the judiciary from liability for violating the guarantees of the Constitution? See Seminole Tribe v. Florida, 517 U.S. 44, 71 n.15 (1996) (“Justice Stevens, in his dissenting opinion … contends that no distinction may be drawn between state sovereign immunity and the immunity enjoyed by state and local officials. But even assuming the latter has no constitutional foundation, the distinction is clear. The Constitution specifically recognizes the States as sovereign entities, while government officials enjoy no such constitutional recognition.”). From where would such an exemption properly derive? See U.S. CONST. art. 1, § 6. Is the conferral of immunity under Section 1983 unconstitutional?
    1. In Briscoe v. LaHue At LexisNexis., 460 U.S. 325 (1983), the Supreme Court held that police officers are absolutely immune from Section 1983 liability founded on their allegedly perjured testimony in judicial proceedings. Justice Marshall dissented from the Court's reliance on the common law immunity of witnesses in conferring immunity under Section 1983:
      The majority opinion correctly states that this case presents a question of statutory construction. Ante, at 1. Yet it departs from generally accepted principles for interpreting laws.

      In all other matters of statutory construction, this Court begins by focusing on the language of the statute itself.

      “Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm'n v. GTE Sylvania, Inc. At LexisNexis., 447 U.S. 102, 108 (1980). The language of § 1983 provides unambiguous guidance in this case. A witness is most assuredly a “person,” the word Congress employed to describe those whose conduct § 1983 encompasses. The majority turns the conventional approach to statutory interpretation on its head. It assumes that common-law tort immunities provide an exemption from the plain language of the statute unless petitioners demonstrate that Congress meant to override the immunity. See ante, at 11. Thus, in the absence of a clearly expressed legislative intent to the contrary, the Court simply presumes that Congress did not mean what it said.

      Absolute immunity for witnesses conflicts not only with the language of § 1983 but also with its purpose. In enacting § 1983, Congress sought to create a damage action for victims of violations of federal rights; absolute immunity nullifies “pro tanto the very remedy it appears Congress sought to create.” Imbler v. Pachtman At LexisNexis., 424 U.S. 409, 434 (1976) (White, J., concurring in the judgment). The words of a statute should always be interpreted to carry out its purpose. Moreover, members of the 42nd Congress explicitly stated that § 1983 should be read so as to further its broad remedial goals.


      It might be appropriate to import common-law defenses and immunities into the statute if, in enacting § 1983, Congress had merely sought to federalize state tort law. But Congress “intended to give a broad remedy for violations of federally protected civil rights.” Monell v. Department of Social Services , 436 U.S. 658, 685 (1978) (emphasis added). Different considerations surely apply when a suit is based on a federally guaranteed right—in this case, the constitutional right to due process of law—rather than the common law. The Congress that enacted § 1983 had concluded that “a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right.” Monroe v. Pape, 365 U.S. 167, 196 (1961) (Harlan, J., concurring). Therefore,immunities that arose in the context of tort actions against private parties provide little guidance for actions against state officials for constitutional violations. “It would indeed be the purest coincidence if the state remedies for violations of common-law rights by private citizens were fully appropriate to redress those injuries which only a state official can cause and against which the Constitution provides protection.” Id. at 196 n.5.

      460 U.S. 325, 347-50. See also , Richard A Matasar, Personal Immunities Under Section 1983: The Limits of the Court’s Historical Analysis , 40 Ark L. Rev. 741 (1987).

    2. Must absolute immunity under Section 1983 be denied to all officials who did not possess a well established immunity at common law in 1871?
      • In Antoine v. Byers At LexisNexis., 508 U.S. 429 (1993), the Court refused absolute immunity for a court reporter whose failure to produce a transcript delayed the hearing of an appeal from a federal criminal trial until four years following the conviction. The Court reasoned that “[i]n determining which officials perform functions that might justify a full exemption from liability we have 'undertaken a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.' “ Id. at 432. Because official court reporters were first employed in the late nineteenth century, the Court found they were not among the persons protected when the common law doctrine of judicial immunity emerged.
      • In Imbler v. Pachtman, 424 U.S. 409 (1976), the Court relied in part upon common law precedents to hold public prosecutors absolutely immune for initiating a criminal action. As the Court subsequently conceded in Kalina v. Fletcher, 522 U.S. 118, 124 n.11 (1997):
        The cases that the [Imbler] Court cited were decided after 1871 and granted a broader immunity to public prosecutors than had been available in malicious prosecution actions against private persons who brought prosecutions at early common law….However, these early cases were decided before the office of public prosecutor in its modern form was common….Thus, the Court in Imbler drew guidance both from the first American cases addressing the availability of malicious prosecution cases against public prosecutors, and perhaps more importantly, from the policy considerations underlying the firmly established common-law rules providing absolute immunity for judges and jurors.

      Was the Imbler Court's use of cases decided after 1871 consistent with the intent of Congress as portrayed in Pierson? Does the Court have the power to interpret Section 1983 to afford more expansive immunity than existed under the common law as of 1871 based upon policy considerations?

    3. In Pulliam v. Allen At LexisNexis., 466 U.S. 522 (1984) the Court held that judges are not immune under Section 1983 from declaratory or injunctive relief. The Court looked first to English common law and discovered that the Kings Bench prerogative writs of prohibition and mandamus were issued against judges. Likewise, American common law rejected immunity of judges where prospective relive was sought. Id. at 529-37.
      Equitable relief, the Court reasoned, does not present the same policy converns that animaded absolute judicial immunity from damages. The limits on the issuance of equitable relief—the requirement that the remedy at law be inadequate and the risk of irreparable harm were equitable relief not to issue—diminish the risk of harrassment and interefence with judical independence presented by suits for damages. Id. at 537-38.

      Finally, the Court discerned no evidence of congressional intent to confer absolute immunity on judges against Section 1983 because “state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprevations or were in league with those who were bent upon abrogation of federally protected rights.” Id. at 540 quoting Mitchum v. Foster At LexisNexis., 407 U. S. 225, 240 (1972).

      In 1996, Congress amended Section 1983, providing that “in any action brought against a judicial oficer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declartory decree was violated or declaratory relief was unavailable.” Pub. L. 104-317 At LexisNexis., Title III, 309(c), Oct. 19, 1996, 110 Stat. 3853

  4. In Stump v. Sparkman At LexisNexis., 435 U.S. 349 (1978), a state trial court judge granted a petition to perform a tubal ligation on Linda Sparkman. The petition, which was presented by Linda's mother, was not assigned a docket number nor placed on file with the court's office. No notice was given to Linda, nor were her interests represented by a guardian ad litem.

    At the time that Judge Stump approved the petition, Indiana statutory law authorized sterilization only for institutionalized persons, and even then only after notice and an evidentiary hearing. Similarly, the Indiana courts had held that the general authority of a parent to consent to medical treatment for a minor child did not encompass the power to authorize sterilization.

    Approximately two years after the tubal ligation was performed, Linda learned she had been sterilized and filed a Section 1983 action against, among others, Judge Stump. The Supreme Court held that Judge Stump was absolutely immune because the approval of the petition was a judicial act and, as an Indiana Circuit Court Judge, Judge Stump had “original exclusive jurisdiction in all cases at law and equity.” “Because the court over which Judge Stump presides is one of general jurisdiction, neither the procedural errors he may have committed nor the lack of a specific statute authorizing his approval of the petition in question rendered him liable in damages for the consequences of his actions.” Id. at 359-60.

    1. In Zarcone v. Perry At LexisNexis., 572 F.2d 52, 53-54 (2nd Cir. 1978), a jury found Suffolk County Judge William Perry liable under Section 1983 for compensatory and punitive damages for the following conduct:
      The incident that gave rise to the lawsuit occurred on April 30, 1975. On that night, then Judge Perry was in his chambers during a break in an evening session of traffic court in Suffolk County, Long Island. Zarcone was operating a mobile food vending truck outside the courthouse. Perry asked Deputy Sheriff Windsor to get some coffee, which he did. Both Perry and Windsor thought the coffee tasted “putrid,” and Perry told Windsor to get the coffee vendor and bring him “in front of me in cuffs.” Perry directed two plainclothes officers, who happened to be nearby, to accompany Windsor. Wearing his sheriff's uniform equipped with badge, gun and handcuffs, Windsor went to Zarcone and told him that the judge said the coffee was terrible and that Zarcone had to go inside to see the judge. Windsor handcuffed Zarcone, despite the vendor's protestations that it was not necessary. When Zarcone said he was too embarrassed to go into the courthouse that way, one of the officers suggested that Zarcone walk between them with Zarcone's jacket over his hands.

      The group then marched through the hallway of the courthouse, in full view of dozens of people. Zarcone heard someone yell that they were locking up the frankfurter man. When they arrived at Perry's chambers, the judge asked if the Sheriff had “the coffee vending man there in handcuffs.” Upon entering the chambers, Perry ordered Zarcone to be left “in handcuffs until I get finished with him.” A pseudo-official inquisition then began. Zarcone stood in front of the judge's desk, behind which the judge sat. A court reporter was present, along with Windsor and the two police officers. Perry told Zarcone that “I have the two cups of coffee here for evidence.” According to Zarcone, whom the jury must have believed, Perry then started screaming at him, threatening him and his “livelihood” for about 20 minutes, and thoroughly scaring him. Just before Zarcone was allowed to leave, Perry commanded Windsor to note Zarcone's vehicle and vending license numbers and told Zarcone, “Mister, you are going to be sorrier before I get through with you.”

      After Zarcone left, he resumed his mobile truck route and came back to the night traffic courthouse about 45 minutes later. Shortly thereafter, Windsor returned and told Zarcone they were to go back to the judge. Zarcone asked if he had to be handcuffed again, but Windsor said no. When they reappeared before Perry, he told Zarcone that he was going to have the two cups of coffee analyzed. Perry also said that if Zarcone would admit he did something wrong, then Perry would drop the charges. Zarcone consistently denied that anything was amiss with the coffee, and no charges were filed.

      Should Judge Perry have been held absolutely immune from liability for his actions?

    2. In Mireles v. Waco At LexisNexis., 502 U.S. 9 (1991), Los Angeles County public defender Howard Waco filed a damages action under Section 1983 against Judge Mireles. The Complaint alleged that after Waco failed to appear for the morning calendar call, Judge Mireles ordered police officers to use unreasonable force to seize Waco and bring him into Mireles' courtroom. Waco averred that with Judge Mireles' approval, the officers violently removed Waco backwards from another courtroom where he was waiting to appear, and slammed him through the doors and swinging gates of Judge Mireles' court.

      In a per curiam opinion, the Supreme Court affirmed the granting of Judge Mireles' motion to dismiss on the ground of absolute immunity. The Court ruled that the judge did not act in the absence of jurisdiction but, to the contrary, ordered Waco to be brought to the courtroom in aid of the judge's jurisdiction over a matter before him. Furthermore, Judge Mireles' actions were taken in his judicial capacity. While judges do not commonly order officers to use excessive force:

      If judicial immunity means anything it means that a judge “Will not be deprived of immunity because the action he took was in error…or was in excess of his authority.”…[T]he relevant inquiry is the “nature” and “function” of the act, not the “act itself.” In other words, we look to the particular act's relation to a general function ordinarily performed by a judge, in this case the function of directing police officers to bring counsel in a pending case before the court.

      Id. at 12-13. See also Martin v. Hendren At LexisNexis., 172 F.3d 720 (8th Cir. 1997) (police officer who used excessive force in carrying out judge’s order to handcuff plaintiff and to remove her from courtroom during traffic court is shielded by absolute quasi-judicial immunity); Contra, Richman v. Sheahan At LexisNexis., 270 F.3d 430 (7th Cir. 2001) (deputy sheriffs who killed plaintiff while enforcing judge’s order to restrain plaintiff during his mother’s appearance before traffic judge not entitled to absolute immunity).

  5. Although judges are absolutely immune from all “judicial acts” within their jurisdiction, absolute immunity may be denied when a judge acts in a non-judicial capacity. See Forrester v. White At LexisNexis., 484 U.S. 219 (1988) (Judge is not absolutely immune for discriminatory dismissal of a probation officer, as action was taken in an administrative capacity); Supreme Court of Virginia v. Consumers Union of the United States At LexisNexis., 446 U.S. 719 (1980) (Virginia Supreme Court is not absolutely immune from suit for declaratory and injunctive relief for initiating disciplinary proceedings against attorneys pursuant to State Bar Code because initiation of proceeding was exercise of judges' “enforcement capacities.”)
  6. In Olivia v. Heller At LexisNexis., 839 F.2d 37, 40 (2nd Cir. 1988), the court considered whether a judge's law clerk is protected by any immunity:
    [A] law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge's own exercise of the judicial function. As described by the district court:
    the work of judges' law clerks is entirely [judicial in nature]. Law clerks are closely connected with the court's decision-making process. Law clerks are “sounding boards for tentative opinions and legal researchers who seek authorities that affect decisions. Clerks are privy to the judge's thoughts in a way that neither parties to the lawsuit nor his most intimate family members may be.” Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir. 1983). Moreover, the work done by law clerks is supervised, approved, and adopted by the judges who initially authorized it. A judicial opinion is not that of the law clerk, but of the judge. Law clerks are simply extensions of the judges at whose pleasure they serve.
    Olivia v. Heller, 670 F.Supp. 523, 526 (S.D.N.Y. 1987). We believe the district court accurately described the role of the law clerk in the judicial process, and we therefore must agree that “for purposes of absolute judicial immunity, judges and their law clerks are as one.” Id.
  7. Prosecutors possess absolute immunity for initiating prosecutions and presenting the government's case, Imbler v. Pachtman At LexisNexis., 424 U.S. 409 (1976). Absolute prosecutorial immunity, however, is plainly limited to damage suits and will not bar a Section 1983 action seeking declaratory or injunctive relief. Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 736-37 (1980).
    1. In Burns v. Reed At LexisNexis., 500 U.S. 478 (1991), the Court held that absolute immunity extends to the prosecutor's “role as an advocate” in presenting evidence at a hearing to determine the existence of probable cause for the issuance of a search warrant. However, the Court renounced absolute immunity for the prosecutor's advice to police officers that it was permissible to interview the defendant under hypnosis and to use the incriminating statement elicited to establish probable cause to search her house and car. The Court reasoned that there is no historic tradition of absolute prosecutorial immunity for legal advice analogous to the common law immunity from malicious prosecution that animated its bestowal of absolute immunity in Imbler. The Court further concluded that the risk of vexatious litigation does not mandate absolute immunity because such immunity is aimed only at guarding the judicial process from the burdens of litigation. Accordingly, absolute prosecutorial immunity is not available for all investigative activities related to the ultimate decision to prosecute, but is restricted to the prosecutor's role in judicial proceedings.
    2. In Buckley v. Fitzsimmons At LexisNexis., 509 U.S. 259 (1993), the Court ruled that a prosecutor was not absolutely immune for a) fabricating evidence that was later presented to the grand jury, and b) making false statements at a press conference to announce the indictment of the plaintiff. The Court dismissed the plaintiff's contention that the immunity was confined to the actual initiation of the prosecution and the presentation of the state's case. However, the Court accepted the distinction “between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand.” 509 U.S. 273. Because the plaintiff alleged that the prosecutor fabricated evidence before probable cause existed to make an arrest or initiate judicial proceedings, the actions in issue were investigative and not shielded by absolute immunity.

      The Court likewise held that the prosecutor was not absolutely immune for untrue statements to the press. Such statements do not involve the commencement of prosecution, presentation of the State's case in court, or actions in preparation for those functions. Hence for immunity purposes, the prosecutor does not issue comments to the press in the role as an advocate and the statements have no functional tie to the judicial process.

    3. In Kalina v. Fletcher At LexisNexis., 522 U.S. 118(1997), the Court denied absolute immunity to a deputy prosecuting attorney for falsely certifying, under penalty of perjury, the factual allegations underlying an application for an arrest warrant. While the prosecutor’s filing of the application for an arrest warrant was part of the advocate’s funtion and therefore protected by absolute immunity, the Court concluded, in verifying the truth of the factual underpinnings the attorney was performing the function of a witness. The Court had previously held in Malley v. Briggs, 475 U.S. 335 (1986) that a police officer possesses only qulaified immunity for signing an application for a search warrant. Hence it ruled that the district attorney similarly was shielded only by qualified immunity to the extent that plaintiff’s Section 1983 action arose out of the prosecutor’s false verification of the factual allegations. Justice Scalia pointed out that the Court’s “functional approach” to immunity under Section 1983 yielded an outcome diametrically opposed to the common law rules as of 1871. At that time, prosecutions were initiated by private individuals, who were shielded only by a form of qualified immunity from malicious prosecution actions. On the other hand, the common law granted absolute immunity to statements made in the course of judicial proceedings. Justice Scalia nonetheless concurred with the majority:
      [T]he “funtional categories” approach to immunity questions … make faithful adherence to the common law embodied in §1983 very difficult. But … the “functional” approach [is] so deeply imbedded in our §1983 jurisprudence that, for reasons of stare decisis, I would not abandon them now.

      522 U.S. at 135 (Scalia J., concurring).

      If the Court had abandoned the common law as the source of immunity under Section 1983, on what basis can Congress be said to have intended to embrace immunity when it enacted Section 1983?
    4. State, regional, and local legislators also have been found absolutely immune from Section 1983 liability in suits arising out of their legislative acts, whether the relief sought is legal or equitable. Bogan v. Scott-Harris At LexisNexis., 523 U.S. 44 (1998); Supreme Court of Virginia v. Consumers Union of the UnitedStates, At LexisNexis., 446 U.S. 719, 731-32 (1980); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency At LexisNexis., 440 U.S. 391, 402-06 (1979). In Bogan, the Court held that a mayor, albeit an executive official, is shielded by absolute legislative immunity for the acts of introducing a budget and signing an ordinance into law “because they were integral steps in the  legislative process.” Bogan, 523 U.S. at 55. But see, Kamplain v. Curry County Board of Commissioners At LexisNexis., 159 F.3d 1248, 1252 (10th Cir. 1998). (County commissioners’ bote to prohibit plaintiff from speaking at commission meetings is not protected by absolute immunity because they were not “voting on, speaking on or investigating a legislative issue.”)
    5. The Supreme Court has held that police officers are absolutely immune from Section 1983 suits arising out of allegations that the officers gave perjured testimony in a criminal trial. Briscoe v. LaHue At LexisNexis., 460 U.S. 325 (1983). However, the Court held that members of a prison disciplinary committee are entitled to only a qualified, rather than absolute, immunity. Cleavinger v. Saxner At LexisNexis., 474 U.S. 193 (1985). Similarly, the Court refused to extend absolute immunity to a police officer alleged to have caused an unconstitutional arrest by presenting a judge with a complaint and supporting affidavit that failed to establish probable cause, even though the judge issues arrest warrants. Malley v. Briggs At LexisNexis., 475 U.S. 335 (1986).
    6. While the “under color of law” requirement of Section 1983 generally is satisfied where private actors conspire with a state official, Adickes v. S.H. Kress & Co. At LexisNexis., 398 U.S. 144 (1970), may private individuals be sued under Section 1983 for constitutional deprivations inflicted pursuant to a conspiracy with a state official who is absolutely immune? See Dennis v. Sparks At LexisNexis., 449 U.S. 24 (1980).


B. Qualified Immunity Test



420 U.S.308 (1975) Wood v. Strickland


Mr. Justice White delivered the opinion of the Court.

Respondents Peggy Strickland and Virginia Crain brought this lawsuit against petitioners, who were members of the school board at the time in question, two school administrators, and the Special School District of Mena, Ark., purporting to assert a cause of action under 42 U. S. C. § 1983, and claiming that their federal constitutional rights to due process were infringed under color of state law by their expulsion from the Mena Public High School on the grounds of their violation of a school regulation prohibiting the use or possession of intoxicating beverages at school or school activities. The complaint as amended prayed for compensatory and punitive damages against all petitioners, injunctive relief allowing respondents to resume attendance, preventing petitioners from imposing any sanctions as a result of the expulsion, and restraining enforcement of the challenged regulation, declaratory relief as to the constitutional invalidity of the regulation, and expunction of any record of their expulsion. After the declaration of a mistrial arising from the jury’s failure to reach a verdict, the District Court directed verdicts in favor of petitioners on the ground that petitioners were immune from damages suits absent proof of malice in the sense of ill will toward respondents. 348 F.Supp. 244 (WD Ark. 1972). The Court of Appeals, finding that the facts showed a violation of respondents’ rights to “substantive due process,” reversed and remanded for appropriate injunctive relief and a new trial on the question of damages. 485 F.2d 186 (CA8 1973). A petition for rehearing en banc was denied, with three judges dissenting. See id., at 191. Certiorari was granted to consider whether this application of due process by the Court of Appeals was warranted and whether that court’s expression of a standard governing immunity for school board members from liability for compensatory damages under 42 U. S. C. § 1983 was the correct one. 416 U.S. 935 (1974).


* * * * *


The District Court instructed the jury that a decision for respondents had to be premised upon a finding that petitioners acted with malice in expelling them and defined “malice” as meaning “ill will against a person — a wrongful act done intentionally without just cause or excuse.” 348 F.Supp., at 248. In ruling for petitioners after the jury had been unable to agree, the District Court found “as a matter of law” that there was no evidence from which malice could be inferred. Id., at 253.

The Court of Appeals, however, viewed both the instruction and the decision of the District Court as being erroneous. Specific intent to harm wrongfully, it held, was not a requirement for the recovery of damages. Instead, “[it] need only be established that the defendants did not, in the light of all the circumstances, act in good faith. The test is an objective, rather than a subjective, one.” 485 F.2d, at 191 (footnote omitted).

Petitioners as members of the school board assert here, as they did below, an absolute immunity from liability under § 1983 and at the very least seek to reinstate the judgment of the District Court. If they are correct and the District Court's dismissal should be sustained, we need go no further in this case. Moreover, the immunity question involves the construction of a federal statute, and our practice is to deal with possibly dispositive statutory issues before reaching questions turning on the construction of the Constitution. Cf. Hagans v. Lavine At LexisNexis., 415 U.S. 528, 549 (1974).6Footnote. We essentially sustain the position of the Court of Appeals with respect to the immunity issue.

The nature of the immunity from awards of damages under § 1983 available to school administrators and school board members is not a question which the lower federal courts have answered with a single voice. There is general agreement on the existence of a "good faith" immunity, but the courts have either emphasized different factors as elements of good faith or have not given specific content to the good-faith standard.

This Court has decided three cases dealing with the scope of the immunity protecting various types of governmental officials from liability for damages under § 1983. In Tenney v. Brandhove At LexisNexis., 341 U.S. 367 (1951), the question was found to be one essentially of statutory construction.8Footnote. Noting that the language of § 1983 is silent with respect to immunities, the Court concluded that there was no basis for believing that Congress intended to eliminate the traditional immunity of legislators from civil liability for acts done within their sphere of legislative action. That immunity, "so well grounded in history and reason … ," 341 U.S. At LexisNexis., at 376, was absolute and consequently did not depend upon the motivations of the legislators. In Pierson v. Ray At LexisNexis., 386 U.S. 547, 554 (1967), finding that "[the] legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities" in enacting § 1983, we concluded that the common-law doctrine of absolute judicial immunity survived. Similarly, § 1983 did not preclude application of the traditional rule that a policeman, making an arrest in good faith and with probable cause, is not liable for damages, although the person arrested proves innocent. Consequently the Court said: "Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied." 386 U.S. At LexisNexis., at 555 (footnote omitted). Finally, last Term we held that the chief executive officer of a State, the senior and subordinate officers of the State's National Guard, and the president of a state-controlled university were not absolutely immune from liability under § 1983, but instead were entitled to immunity, under prior precedent and in light of the obvious need to avoid discouraging effective official action by public officers charged with a considerable range of responsibility and discretion, only if they acted in good faith as defined by the Court:

”[In] varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.” Scheuer v. Rhodes At LexisNexis., 416 U.S. 232, 247-248 (1974).

Common-law tradition, recognized in our prior decisions, and strong public-policy reasons also lead to a construction of § 1983 extending a qualified good-faith immunity to school board members from liability for damages under that section. Although there have been differing emphases and formulations of the common-law immunity of public school officials in cases of student expulsion or suspension, state courts have generally recognized that such officers should be protected from tort liability under state law for all good-faith, nonmalicious action taken to fulfill their official duties.

As the facts of this case reveal, school board members function at different times in the nature of legislators and adjudicators in the school disciplinary process. Each of these functions necessarily involves the exercise of discretion, the weighing of many factors, and the formulation of long-term policy. “Like legislators and judges, these officers are entitled to rely on traditional sources for the factual information on which they decide and act.” Scheuer v. Rhodes At LexisNexis., supra, at 246 (footnote omitted). As with executive officers faced with instances of civil disorder, school officials, confronted with student behavior causing or threatening disruption, also have an “obvious need for prompt action, and decisions must be made in reliance on factual information supplied by others.” Ibid.

Liability for damages for every action which is found subsequently to have been violative of a student's constitutional rights and to have caused compensable injury would unfairly impose upon the school decisionmaker the burden of mistakes made in good faith in the course of exercising his discretion within the scope of his official duties. School board members, among other duties, must judge whether there have been violations of school regulations and, if so, the appropriate sanctions for the violations. Denying any measure of immunity in these circumstances "would contribute not to principled and fearless decision-making but to intimidation." Pierson v. Ray, supra, at 554. The imposition of monetary costs for mistakes which were not unreasonable in the light of all the circumstances would undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school and the students. The most capable candidates for school board positions might be deterred from seeking office if heavy burdens upon their private resources from monetary liability were a likely prospect during their tenure.11Footnote.

These considerations have undoubtedly played a prime role in the development by state courts of a qualified immunity protecting school officials from liability for damages in lawsuits claiming improper suspensions or expulsions.12Footnote. But at the same time, the judgment implicit in this common-law development is that absolute immunity would not be justified since it would not sufficiently increase the ability of school officials to exercise their discretion in a forthright manner to warrant the absence of a remedy for students subjected to intentional or otherwise inexcusable deprivations.

Tenney v. Brandhove, Pierson v. Ray, and Scheuer v. Rhodes drew upon a very similar background and were animated by a very similar judgment in construing § 1983. Absent legislative guidance, we now rely on those same sources in determining whether and to what extent school officials are immune from damage suits under § 1983. We think there must be a degree of immunity if the work of the schools is to go forward; and, however worded, the immunity must be such that public school officials understand that action taken in the good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity.

“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.” Scheuer v. Rhodes At LexisNexis., 416 U.S., at 241-242 (footnote omitted).

The disagreement between the Court of Appeals and the District Court over the immunity standard in this case has been put in terms of an “objective” versus a “subjective” test of good faith. As we see it, the appropriate standard necessarily contains elements of both. The official himself must be acting sincerely and with a belief that he is doing right, but an act violating a student’s constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students’ daily lives than by the presence of actual malice. To be entitled to a special exemption from the categorical remedial language of § 1983 in a case in which his action violated a student’s constitutional rights, a school board member, who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic, unquestioned constitutional rights of his charges. Such a standard imposes neither an unfair burden upon a person assuming a responsible public office requiring a high degree of intelligence and judgment for the proper fulfillment of its duties, nor an unwarranted burden in light of the value which civil rights have in our legal system. Any lesser standard would deny much of the promise of § 1983. Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. That is not to say that school board members are “charged with predicting the future course of constitutional law.” Pierson v. Ray, 386 U.S., at 557. A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.


The Court of Appeals, based upon its review of the facts but without the benefit of the transcript of the testimony given at the four-day trial to the jury in the District Court, found that the board had made its decision to expel the girls on the basis of no evidence that the school regulation had been violated.

* * * * *

Given the fact that there was evidence supporting the charge against respondents, the contrary judgment of the Court of Appeals is improvident. It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion. Public high school students do have substantive and procedural rights while at school. See Tinker v. Des Moines Independent Community School District At LexisNexis., 393 U.S. 503 (1969); West Virginia State Board of Education v. Barnette At LexisNexis., 319 U.S. 624 (1943); Goss v. Lopez At LexisNexis., 419 U.S. 565 (1975). But § 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and § 1983 was not intended to be a vehicle for federal-court corrections of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees. See Epperson v. Arkansas At LexisNexis., 393 U.S. 97, 104 (1968); Tinker At LexisNexis., supra, at 507.


Respondents’ complaint alleged that their procedural due process rights were violated by the action taken by petitioners. App. 9. The District Court did not discuss this claim in its final opinion, but the Court of Appeals viewed it as presenting a substantial question. It concluded that the girls were denied procedural due process at the first school board meeting, but also intimated that the second meeting may have cured the initial procedural deficiencies. Having found a substantive due process violation, however, the court did not reach a conclusion on this procedural issue. 485 F.2d, at 190.

Respondents have argued here that there was a procedural due process violation which also supports the result reached by the Court of Appeals. Brief for Respondents 27-28, 36. But because the District Court did not discuss it, and the Court of Appeals did not decide it, it would be preferable to have the Court of Appeals consider the issue in the first instance.

The judgment of the Court of Appeals is vacated and the case remanded for further proceedings consistent with this opinion.

So ordered.

Mr. Justice Powell, with whom the Chief Justice, Mr. Justice Blackmun, and Mr. Justice Rehnquist join, concurring in part and dissenting in part. 

I join in Parts I, III, and IV of the Court’s opinion, and agree that the judgment of the Court of Appeals should be vacated and the case remanded. I dissent from Part II which appears to impose a higher standard of care upon public school officials, sued under § 1983, than that heretofore required of any other official.

The holding of the Court on the immunity issue is set forth in the margin. It would impose personal liability on a school official who acted sincerely and in the utmost good faith, but who was found — after the fact — to have acted in “ignorance … of settled, indisputable law.” Ante, at 321. Or, as the Court also puts it, the school official must be held to a standard of conduct based not only on good faith “but also on knowledge of the basic, unquestioned constitutional rights of his charges.” Ante, at 322. Moreover, ignorance of the law is explicitly equated with “actual malice.” Ante, at 321. This harsh standard, requiring knowledge of what is characterized as “settled, indisputable law,” leaves little substance to the doctrine of qualified immunity. The Court’s decision appears to rest on an unwarranted assumption as to what lay school officials know or can know about the law and constitutional rights. These officials will now act at the peril of some judge or jury subsequently finding that a good-faith belief as to the applicable law was mistaken and hence actionable.2Footnote.

The Court states the standard of required knowledge in two cryptic phrases: "settled, indisputable law" and "unquestioned constitutional rights." Presumably these are intended to mean the same thing, although the meaning of neither phrase is likely to be self-evident to constitutional law scholars -- much less the average school board member. One need only look to the decisions of this Court -- to our reversals, our recognition of evolving concepts, and our five-to-four splits -- to recognize the hazard of even informed prophecy as to what are "unquestioned constitutional rights." Consider, for example, the recent five-to-four decision in Goss v. Lopez At LexisNexis., 419 U.S. 565 (1975) , holding that a junior high school pupil routinely suspended for as much as a single day is entitled to due process. I suggest that most lawyers and judges would have thought, prior to that decision, that the law to the contrary was settled, indisputable, and unquestioned.

Less than a year ago, in Scheuer v. Rhodes At LexisNexis., 416 U.S. 232 (1974), and in an opinion joined by all participating members of the Court, a considerably less demanding standard of liability was approved with respect to two of the highest officers of the State, the Governor and Adjutant General. In that case, the estates of students killed at Kent State University sued these officials under § 1983. After weighing the competing claims, the Court concluded:

“These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.” 416 U.S. At LexisNexis., 416 U.S. 232 (1974), at 247-248. (Emphasis added.)

The italicized sentence from Scheuer states, as I view it, the correct standard for qualified immunity of a government official: whether in light of the discretion and responsibilities of his office, and under all of the circumstances as they appeared at the time, the officer acted reasonably and in good faith. This was the standard applied to the Governor of a State charged with maliciously calling out National Guardsmen who killed and wounded Kent State students.4Footnote. Today’s opinion offers no reason for imposing a more severe standard on school board members charged only with wrongfully expelling three teenage pupils.

* * * * *

In view of today’s decision significantly enhancing the possibility of personal liability, one must wonder whether qualified persons will continue in the desired numbers to volunteer for service in public education.

Wood v. Strickland TranscriptAccess this transcript at Lexis.


Notes on Wood v. Strickland


Qualified Immunity under Section 1983

  1. On what basis did the Pierson Court find that the legislature conferred qualified immunity when it enacted Section 1983? Does the text of the Constitution prescribe qualified immunity? May state common law afford immunity to an official who violates the Constitution? Is the legislature empowered to exempt government officials from adherence to constitutional mandates? If the answer to the three preceding questions is “no,” is the 1871 Congress' supposed attempt to supply qualified immunity unconstitutional?
  2. What are the policies that underlie qualified immunity?
    1. Do these policies in fact justify the immunity? What is the effect of conferring qualified immunity on the allocation of the risk of loss from constitutional violations? In order to ensure that the victim does not bear the loss, should qualified immunity be denied if the entity that employs the official who violated the Constitution is not liable for damages?
    2. May the qualified immunity defense be asserted where the Complaint seeks equitable relief rather than damages? See Wood v. Strickland at n.6.
  3. What is the standard that the government actor must satisfy to be shielded from liability by the qualified immunity?
    1. What is the test for the qualified immunity set forth in Pierson v. Ray?
    2. What is the test for the qualified immunity prescribed in Scheuer v. Rhodes At LexisNexis., 416 U.S. 232 (1976)?
    3. What is the test for the qualified immunity promulgated in Wood v. Strickland?
      1. Under the subjective prong, is immunity available to an official who intends to cause injury to the plaintiff but does not specifically intend to violate the plaintiff's constitutional rights?
      2. Is there any limit on the relevant factors to be examined in determining whether the official satisfies the objective tier of the qualified immunity?
    4. Under Wood v. Strickland, what is the significance of whether the right violated was “clearly established” at the time of the deprivation? Is the immunity per se unavailable where the right was “clearly established?” Conversely, is either element of the immunity satisfied as a matter of law where the right was not “clearly established?”
    5. What test for the qualified immunity is proposed by the dissenters in Wood? Why do they disagree with the standard of the majority opinion?


434 U.S.555 (1978). Procunier v. Navarette


Mr. Justice White delivered the opinion of the Court.

Respondent Navarette, an inmate of Soledad Prison in California when the events revealed here occurred, filed his second amended complaint on January 19, 1974, charging six prison officials with various types of conduct allegedly violative of his constitutional rights and of 42 U.S.C. §§ 1983 and 1985. Three of the defendants were subordinate officials at Soledad; three were supervisory officials: the director of the State Department of Corrections and the warden and assistant warden of Soledad. The first three of nine claims for relief alleged wrongful interference with Navarette's outgoing mail.

* * * * *

In support of their motion for summary judgment, petitioners argued that on the record before the court they were immune from liability for damages under § 1983 and hence were entitled to judgment as a matter of law. The claim was not that they shared the absolute immunity accorded judges and prosecutors but that they were entitled to the qualified immunity accorded those officials involved in Scheuer v. Rhodes At LexisNexis., 416 U.S. 232 (1976), and Wood v. Strickland, 420 U.S. 308 (1975). The Court of Appeals appeared to agree that petitioners were entitled to the claimed degree of immunity but held that they were nevertheless not entitled to summary judgment because in the court’s view there were issues of fact to be resolved and because when the facts were viewed most favorably to respondent, it could not be held that petitioners were entitled to judgment as a matter of law. Without disagreeing that petitioners enjoyed a qualified immunity from damages liability under § 1983, respondent defends the judgment of the Court of Appeals as a proper application of § 1983 and of the Court’s cases construing it.

Although the Court has recognized that in enacting § 1983 Congress must have intended to expose state officials to damages liability in some circumstances, the section has been consistently construed as not intending wholesale revocation of the common-law immunity afforded government officials. Legislators, judges, and prosecutors have been held absolutely immune from liability for damages under § 1983. Tenney v. Brandhove At LexisNexis., 341 U.S. 367 (1951); Pierson v. Ray, 386 U.S. 547 (1967); Imbler v. Pachtman At LexisNexis., 424 U.S. 409 (1976). Only a qualified immunity from damages is available to a state Governor, a president of a state university, and officers and members of a state National Guard. Scheuer v. Rhodes At LexisNexis., supra. The same is true of local school board members, Wood v. Strickland , supra; of the superintendent of a state hospital, O’Connor v. Donaldson At LexisNexis., 422 U.S. 563 (1975) ; and of policemen, Pierson v. Ray , supra; see Imbler v. Pachtman At LexisNexis., supra, at 418-419.

We agree with petitioners that as prison officials and officers, they were not absolutely immune from liability in this § 1983 damages suit and could rely only on the qualified immunity described in Scheuer v. Rhodes At LexisNexis., supra, and Wood v. Strickland, supra.

Under the first part of the Wood v. Strickland rule, the immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm. Petitioners claim that in 1971 and 1972 when the conduct involved in this case took place there was no established First Amendment right protecting the mailing privileges of state prisoners and that hence there was no such federal right about which they should have known. We are in essential agreement with petitioners in this respect and also agree that they were entitled to judgment as a matter of law.

* * * * *

Whether the state of the law is evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court, there was no “clearly established” First and Fourteenth Amendment right with respect to the correspondence of convicted prisoners in 1971-1972.12Footnote. As a matter of law, therefore, there was no basis for rejecting the immunity defense on the ground that petitioners knew or should have known that their alleged conduct violated a constitutional right. Because they could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, petitioners did not act with such disregard for the established law that their conduct “cannot reasonably be characterized as being in good faith.” Wood v. Strickland, 420 U.S., at 322.13Footnote.

Neither should petitioners’ immunity defense be overruled under the second branch of the Wood v. Strickland standard, which would authorize liability where the official has acted with “malicious intention” to deprive the plaintiff of a constitutional right or to cause him “other injury.” This part of the rule speaks of “intentional injury,” contemplating that the actor intends the consequences of his conduct. See Restatement (Second) of Torts § 8A (1965). The third claim for relief with which we are concerned here, however, charges negligent conduct, which normally implies that although the actor has subjected the plaintiff to unreasonable risk, he did not intend the harm or injury that in fact resulted. See id., at § 282 and Comment d. Claims 1 and 2 of the complaint alleged intentional and bad-faith conduct in disregard of Navarette’s constitutional rights; but claim 3, as the court below understood it and as the parties have treated it, was limited to negligence. The prison officers were charged with negligent and inadvertent interference with the mail and the supervisory personnel with negligent failure to provide proper training. To the extent that a malicious intent to harm is a ground for denying immunity, that consideration is clearly not implicated by the negligence claim now before us.14Footnote.

We accordingly conclude that the District Court was correct in entering summary judgment for petitioners on the third claim of relief and that the Court of Appeals erred in holding otherwise. The judgment of the Court of Appeals is


Mr. Chief Justice Burger, dissenting.

* * * * *

Mr. Justice Stevens, dissenting.

Today's decision, coupled with O’Connor v. Donaldson At LexisNexis., 422 U.S. 563 (1975), strongly implies that every defendant in a § 1983 action is entitled to assert a qualified immunity from damage liability. As the immunity doctrine developed, the Court was careful to limit its holdings to specific officials,1Footnote. and to insist that a considered inquiry into the common law was an essential precondition to the recognition of the proper immunity for any official.2Footnote. These limits have now been abandoned. In Donaldson, without explanation and without reference to the common law, the Court held that the standard for judging the immunity of the superintendent of a mental hospital is the same as the standard for school officials; today the Court purports to apply the same standard to the superintendent of a prison system and to various correction officers.3Footnote.

* * * * *

Procunier v. Navarette TranscriptAccess this transcript at Lexis.


Notes on Procunier v. Navarette


  1. On what basis does the Procunier Court find prison officials may avail themselves of the qualified immunity?

    In Tower v. Glover At LexisNexis., 467 U.S. 914 (1984), Billy Irl Glover filed a Section 1983 action against the public defenders who unsuccessfully represented him on a robbery charge. Glover alleged that the defense attorneys had conspired with the trial and appellate court judges, as well as the Attorney General of Oregon, to secure his conviction.

    The Supreme Court had held in Polk County v. Dodson At LexisNexis., 454 U.S. 312 (1981) that appointed counsel in a state prosecution does not act under color of state law for purposes of Section 1983. However, the Court in Dennis v. Sparks At LexisNexis., 449 U.S. 24 (1980) held that private persons who are alleged to have engaged in a conspiracy with state officials to deprive a person of federal constitutional rights do act under color of state law and are therefore suable under Section 1983. The Court in Tower granted certiorari to determine whether the public defenders were protected by any immunity, and reasoned as follows:

    Section 1983 immunities are “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” [Citation omitted]. If an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether § 1983's history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions. [Citations omitted].

    Using this framework we conclude that public defenders have no immunity from § 1983 liability for intentional misconduct of the type alleged here.

    No immunity for public defenders, as such, existed at common law in 1871 because there was, of course, no such office or position in existence at that time. The first public defender program in the United States was reportedly established in 1914…Our inquiry, however, cannot stop there. Immunities in this country have regularly been borrowed from the English precedents, and the public defender has a reasonably close “cousin” in the English barrister. Like public defenders, barristers are not free to pick and choose their clients. They are thought to have no formal contractual relationship with their clients, and they are incapable of suing their clients for a fee…It is therefore noteworthy that English barristers enjoyed in the 19th century, as they still do today, a broad immunity from liability for negligent misconduct. Rondel v. Worsley, supra, a recent decision from the House of Lords, traces this immunity from its origins in 1435 until the present. Nevertheless, it appears that even barristers have never enjoyed immunity from liability for intentional misconduct, id. at 287 (opinion of Lord Pearson), and it is only intentional misconduct that concerns us here.

    In this country the public defender's only 19th-century counterpart was a privately retained lawyer, and petitioners do not suggest that such a lawyer would have enjoyed immunity from tort liability for intentional misconduct.


    Finally, petitioners contend that public defenders have responsibilities similar to those of a judge or prosecutor, and therefore should enjoy similar immunities. The threat of § 1983 actions based on alleged conspiracies among defense counsel and other state officials may deter counsel from engaging in activities that require some degree of cooperation with prosecutors—negotiating pleas, expediting trials and appeals, and so on. Ultimately, petitioners argue, the State's attempt to meet its constitutional obligation to furnish criminal defendants with effective counsel will be impaired. At the same time, the federal courts may be inundated with frivolous lawsuits.

    Petitioners' concerns may be well founded, but the remedy petitioners urge is not for us to adopt. We do not have a license to establish immunities from § 1983 actions in the interests of what we judge to be sound public policy. It is for Congress to determine whether § 1983 litigation has become too burdensome to state or federal institutions and, if so, what remedial action is appropriate. We conclude that state public defenders are not immune from liability under § 1983 for intentional misconduct, “under color of” state law, by virtue of alleged conspiratorial action with state officials that deprives their clients of federal rights.

    Tower v. Glover At LexisNexis., 467 U.S. 914, 920-23 (1984). Can the according of qualified immunity to prison officials in Procunier be reconciled with Tower v. Glover? See Richardson v. McKnight At LexisNexis., 521 U.S. 399, 415-16(1997) (Scalia, J. dissenting) (“The truth to tell, Procunier v. Navarette…did not trouble itself with history…but simply set forth a policy prescription.”)

  2. Does Procunier v. Navarette purport to overrule or modify Wood v. Strickland? Does the test for the objective part of the immunity as defined by Justice White in Procunier differ from the standard he set forth in Wood?
    1. After Procunier, is the objective tier satisfied by the official as a matter of law whenever the right violated was not “clearly established”? Could an official's belief in the propriety of her conduct be unreasonable even if the constitutional right invaded was not well settled? Should an officer be shielded from liability under Section 1983 for conduct that is unreasonable under all circumstances if it was not “clearly established” that her actions also would violate the Constitution?
    2. Is the immunity per se unavailable where the constitutional right violated was “clearly established” at the time of the deprivation? Can this be reconciled with the Court's treatment of the immunity where the right was not “clearly established”?
  3. What is the effect of exonerating an official from liability on the ground that the constitutional right violated was not “clearly established”? When does a right become “clearly established”?
  4. In Richardson v. McKnight At LexisNexis., 521 U.S. 399 (1997), the Supreme Court, in a 5-4 opinion, held that guards employed by a private prison management firm were not entitled to assert a qualified immunity defense in prisoner Section 1983 actions. The Court first observed that neither the English nor American common law afforded immunity to private jailers. 521 U.S.at 404-407. The Court rejected the entreaty that the defendants were deserving of immunity because they serve the same function as state prison guards. The Court reasoned that its precedents employ a functional approach to decide only which type of immunity -- absolute or qualified -- applied to governmental officials; it had never held that performance of a governmental function triggers a qualified immunity to shield private actors from Section 1983 liability. “Indeed, a purely functional approach bristles with difficulty, particularly since, in many areas, government and private industry may engage in fundamentally similar activities, ranging from electricity production, to waste disposal, to even mail delivery.” 521 U.S. at 409.

    The Court then elaborated why the purposes of qualified immunity do not pertain when the defendant is employed by a private entity:

    First, the most important special government immunity-producing concern -- unwarranted timidity -- is less likely present, or at least is not special, when a private company subject to competitive market pressures operates a prison. Competitive pressures mean not only that a firm whose guards are too aggressive will face damages that raise costs, thereby threatening its replacement, but also that a firm whose guards are too timid will face threats of replacement by other firms with records that demonstrate their ability to do both a safer and a more effective job.

    * * * * *

    [M]arketplace pressures provide the private firm with strong incentives to avoid overly timid, insufficiently vigorous, unduly fearful, or “non-arduous” employee job performance. And the contract's provisions -- including those that might permit employee indemnification and avoid many civil-service restrictions -- grant this private firm freedom to respond to those market pressures through rewards and penalties that operate directly upon its employees. See § 41-24-111. To this extent, the employees before us resemble those of other private firms and differ from government employees.

    * * * * *

    [G]overnment employees typically act within a different system. They work within a system that is responsible through elected officials to voters who, when they vote, rarely consider the performance of individual subdepartments or civil servants specifically and in detail. And that system is often characterized by multidepartment civil service rules that, while providing employee security, may limit the incentives or the ability of individual departments or supervisors flexibly to reward, or to punish, individual employees. Hence a judicial determination that “effectiveness” concerns warrant special immunity-type protection in respect to this latter (governmental) system does not prove its need in respect to the former. Consequently, we can find no special immunity-related need to encourage vigorous performance.

    Second, “privatization” helps to meet the immunity-related need “to ensure that talented candidates” are “not deterred by the threat of damages suits from entering public service.” (citations omitted). It does so in part because of the comprehensive insurance-coverage requirements just mentioned. The insurance increases the likelihood of employee indemnification and to that extent reduces the employment-discouraging fear of unwarranted liability potential applicants face. Because privatization law also frees the private prison-management firm from many civil service law restraints, Tenn.Code.Ann. § 41-24-111 (1990), it permits the private firm, unlike a government department, to offset any increased employee liability risk with higher pay or extra benefits. In respect to this second government-immunity-related purpose then, it is difficult to find a special need for immunity, for the guards' employer can operate like other private firms; it need not operate like a typical government department.

    Third, lawsuits may well “distrac[t]” these employees “from their …duties” (citations omitted) but the risk of “distraction” alone cannot be sufficient grounds for an immunity…Given a continual and conceded need for deterring constitutional violations and our sense that the firm's tasks are not enormously different in respect to their importance from various other publicly important tasks carried out by private firms, we are not persuaded that the threat of distracting workers from their duties is enough virtually by itself to justify providing an immunity.

    521 U.S. at 409-12.

    Justice Scalia, joined by Chief Justice Rehnquist and Justices Kennedy and Thomas, vigorously dissented from the Court's refusal to determine entitlement to qualified immunity through an examination of whether the defendant performs governmental functions. The dissent also decried the majority's conclusion that market pressures obviate the need to afford immunity:

    [I]t is fanciful to speak of the consequences of “market” pressures in a regime where public officials are the only purchaser, and other people's money the medium of payment. Ultimately, one prison-management firm will be selected to replace another prison-management firm only if a decision is made by some political official not to renew the contract. See Tenn.Code.Ann. §§ 41-24-103 to 105 (Supp. 1996). This is a government decision, not a market choice…Secondly and more importantly, however, if one assumes a political regime that is bent on emulating the market in its purchase of prison services, it is almost certainly the case that, short of mismanagement so severe as to provoke a prison riot, price (not discipline) will be the predominating factor in such a regime's selection of a contractor. A contractor's price must depend upon its costs; lawsuits increase costs; and “fearless” maintenance of discipline increases lawsuits. The incentive to down-play discipline will exist, moreover, even in those states where the politicians' zeal for market-emulation and budget-cutting has waned, and where prison-management contract renewal is virtually automatic: the more cautious the prison guards, the fewer the lawsuits, the higher the profits. In sum, it seems that “market-competitive” private person managers have even greater need than civil-service prison managers for immunity as an incentive to discipline.

    521 U.S. at 418-420.

    Finally, the dissent attacked the majority's assertion that immunity was unnecessary in the private sector to ensure that the fear of damages liability does not deter talented individuals from seeking employment.

    The Court's second distinction between state and private prisons is that privatization “helps to meet the immunity-related need to ensure that talented candidates are not deterred by the threat of damages suits from entering public service” as prison guards. Ante, at 2107 (internal quotation marks omitted). This is so because privatization brings with it (or at least has brought with it in the case before us) (1) a statutory requirement for insurance coverage against civil-rights claims, which assertedly “increases the likelihood of employee indemnification,” and (2) a liberation “from many civil service law restraints” which prevent increased employee risk from being “offset…with higher pay or extra benefits,” ibid…[O]f course civil-rights liability insurance is no less available to public entities than to private employers. But the second factor -- liberation from civil-service limitations -- is the more interesting one. First of all, simply as a philosophical matter it is fascinating to learn that one of the prime justifications for § 1983 immunity should be a phenomenon (civil-service laws) that did not even exist when § 1983 was enacted and the immunity created. Also as a philosophical matter, it is poetic justice (or poetic revenge) that the Court should use one of the principal economic benefits of “prison out-sourcing” -- namely, the avoidance of civil service salary and tenure encrustations -- as the justification for a legal rule rendering out-sourcing more expensive. Of course the savings attributable to out-sourcing will not be wholly lost as a result of today's holding; they will be transferred in part from the public to prisoner-plaintiffs and to lawyers. It is a result that only the American Bar Association and the American Federation of Government Employees could love.

    521 U.S. at 420-421.

    Given the policy underpinnings of the doctrine, should qualified immunity be available to a governmental official who is indemnified by the entity? If so, what are the policy reasons that support immunity for an indemnified public official? See Greer v. Shoop At LexisNexis., 141 F. 3d 824, 828 (8th Cir 1998)(“Greer next argues that the defendants should not be entitled to qualified immunity because they would be indemnified, pursuant to Iowa state law, for any award of damages entered against them … . In our view, the policy reasons are much broader than simply protecting state employees from having to pay damages. Therefore, we are not convinced by Greer’s argument and find no compelling reason to further comment on the issue”)


457 U.S. 800 (1982) Harlow v. Fitzgerald


Justice Powell delivered the opinion of the Court.

The issue in this case is the scope of the immunity available to the senior aides and advisers of the President of the United States in a suit for damages based upon their official acts.


In this suit for civil damages petitioners Bryce Harlow and Alexander Butterfield are alleged to have participated in a conspiracy to violate the constitutional and statutory rights of the respondent A. Ernest Fitzgerald. Respondent avers that petitioners entered the conspiracy in their capacities as senior White House aides to former President Richard M. Nixon. As the alleged conspiracy is the same as that involved in Nixon v. Fitzgerald, ante, p. 731, the facts need not be repeated in detail.

* * * * *

Together with their codefendant Richard Nixon, petitioners Harlow and Butterfield moved for summary judgment on February 12, 1980. In denying the motion the District Court upheld the legal sufficiency of Fitzgerald's Bivens (Biven v. Six Unknow Fed. Narcotics Agents, 403 U.S. 388 (1971)) claim under the First Amendment and his "inferred" statutory causes of action under 5 U. S. C. § 7211 (1976 ed., Supp. IV) and 18 U. S. C. § 1505.10Footnote. The court found that genuine issues of disputed fact remained for resolution at trial. It also ruled that petitioners were not entitled to absolute immunity. App. to Pet. for Cert. 1a-3a.

Independently of former President Nixon, petitioners invoked the collateral order doctrine and appealed the denial of their immunity defense to the Court of Appeals for the District of Columbia Circuit. The Court of Appeals dismissed the appeal without opinion. Id., at 11a-12a. Never having determined the immunity available to the senior aides and advisers of the President of the United States, we granted certiorari. 452 U.S. 959 (1981).

* * * * *



Petitioners argue that they are entitled to a blanket protection of absolute immunity as an incident of their offices as Presidential aides.

* * * * *

Having decided in Butz that Members of the Cabinet ordinarily enjoy only qualified immunity from suit, we conclude today that it would be equally untenable to hold absolute immunity an incident of the office of every Presidential subordinate based in the White House. Members of the Cabinet are direct subordinates of the President, frequently with greater responsibilities, both to the President and to the Nation, than White House staff. The considerations that supported our decision in Butz apply with equal force to this case. It is no disparagement of the offices held by petitioners to hold that Presidential aides, like Members of the Cabinet, generally are entitled only to a qualified immunity.

* * * * *


Petitioners also assert an entitlement to immunity based on the "special functions" of White House aides. This form of argument accords with the analytical approach of our cases. For aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy, absolute immunity might well be justified to protect the unhesitating performance of functions vital to the national interest. But a "special functions" rationale does not warrant a blanket recognition of absolute immunity for all Presidential aides in the performance of all their duties. This conclusion too follows from our decision in Butz, which establishes that an executive official's claim to absolute immunity must be justified by reference to the public interest in the special functions of his office, not the mere fact of high station.

* * * * *

Applying these standards to the claims advanced by petitioners Harlow and Butterfield, we cannot conclude on the record before us that either has shown that “public policy requires [for any of the functions of his office] an exemption of [absolute] scope.” Butz , 438 U.S., at 506. Nor, assuming that petitioners did have functions for which absolute immunity would be warranted, could we now conclude that the acts charged in this lawsuit — if taken at all — would lie within the protected area. We do not, however, foreclose the possibility that petitioners, on remand, could satisfy the standards properly applicable to their claims.


Even if they cannot establish that their official functions require absolute immunity, petitioners assert that public policy at least mandates an application of the qualified immunity standard that would permit the defeat of insubstantial claims without resort to trial. We agree.


The resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative. In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees. Butz v. Economou, supra, at 506; see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S., at 410 ("For people in Bivens' shoes, it is damages or nothing"). It is this recognition that has required the denial of absolute immunity to most public officers. At the same time, however, it cannot be disputed seriously that claims frequently run against the innocent as well as the guilty -- at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will "dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties." Gregoire v. Biddle At LexisNexis., 177 F.2d 579, 581 (CA2 1949), cert. denied, 339 U.S. 949 (1950).

In identifying qualified immunity as the best attainable accommodation of competing values, in Butz, supra, at 507-508, as in Scheuer At LexisNexis., 416 U.S., at 245-248, we relied on the assumption that this standard would permit “[insubstantial] lawsuits [to] be quickly terminated.” 438 U.S., at 507-508; see Hanrahan v. Hampton At LexisNexis., 446 U.S. 754, 765 (1980) (Powell, J., concurring in part and dissenting in part). Yet petitioners advance persuasive arguments that the dismissal of insubstantial lawsuits without trial — a factor presupposed in the balance of competing interests struck by our prior cases — requires an adjustment of the “good faith” standard established by our decisions.


Qualified or “good faith” immunity is an affirmative defense that must be pleaded by a defendant official. Gomez v. Toledo At LexisNexis., 446 U.S. 635 (1980). Decisions of this Court have established that the “good faith” defense has both an “objective” and a “subjective” aspect. The objective element involves a presumptive knowledge of and respect for “basic, unquestioned constitutional rights.” Wood v. Strickland , 420 U.S. 308, 322 (1975). The subjective component refers to “permissible intentions.” Ibid. Characteristically the Court has defined these elements by identifying the circumstances in which qualified immunity would not be available. Referring both to the objective and subjective elements, we have held that qualified immunity would be defeated if an official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with malicious intention to cause a deprivation of constitutional rights or other injury … .” Ibid. (emphasis added).

The subjective element of the good-faith defense frequently has proved incompatible with our admonition in Butz that insubstantial claims should not proceed to trial. Rule 56 of the Federal Rules of Civil Procedure provides that disputed questions of fact ordinarily may not be decided on motions for summary judgment. And an official’s subjective good faith has been considered to be a question of fact that some courts have regarded as inherently requiring resolution by a jury.

In the context of Butz’ attempted balancing of competing values, it now is clear that substantial costs attend the litigation of the subjective good faith of government officials. Not only are there the general costs of subjecting officials to the risks of trial — distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service. There are special costs to “subjective” inquiries of this kind. Immunity generally is available only to officials performing discretionary functions. In contrast with the thought processes accompanying “ministerial” tasks, the judgments surrounding discretionary action almost inevitably are influenced by the decisionmaker’s experiences, values, and emotions. These variables explain in part why questions of subjective intent so rarely can be decided by summary judgment. Yet they also frame a background in which there often is no clear end to the relevant evidence. Judicial inquiry into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official’s professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.

Consistently with the balance at which we aimed in Butz, we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Procunier v. Navarette, 434 U.S. 555, 565 (1978); Wood v. Strickland, 420 U.S., at 322.30Footnote.

  Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law,31Footnote. should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.32Footnote. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.

By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken “with independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554 (1967).34Footnote.

* * * * *

Justice Brennan, with whom Justice Marshall and Justice Blackmun join, concurring.

 I agree with the substantive standard announced by the Court today, imposing liability when a public-official defendant “knew or should have known” of the constitutionally violative effect of his actions. Ante, at 815, 819. This standard would not allow the official who actually knows that he was violating the law to escape liability for his actions, even if he could not “reasonably have been expected” to know what he actually did know. Ante, at 819, n. 33. Thus the clever and unusually well-informed violator of constitutional rights will not evade just punishment for his crimes. I also agree that this standard applies “across the board,” to all “government officials performing discretionary functions.” Ante, at 818. I write separately only to note that given this standard, it seems inescapable to me that some measure of discovery may sometimes be required to determine exactly what a public-official defendant did “know” at the time of his actions. In this respect the issue before us is very similar to that addressed in Herbert v. Lando At LexisNexis. , 441 U.S. 153 (1979), in which the Court observed that “[to] erect an impenetrable barrier to the plaintiff’s use of such evidence on his side of the case is a matter of some substance, particularly when defendants themselves are prone to assert their [good faith] . …” Id., at 170. Of course, as the Court has already noted, ante, at 818-819, summary judgment will be readily available to public-official defendants whenever the state of the law was so ambiguous at the time of the alleged violation that it could not have been “known” then, and thus liability could not ensue. In my view, summary judgment will also be readily available whenever the plaintiff cannot prove, as a threshold matter, that a violation of his constitutional rights actually occurred. I see no reason why discovery of defendants’ “knowledge” should not be deferred by the trial judge pending decision of any motion of defendants for summary judgment on grounds such as these. Cf. Herbert v. Lando, supra, at 180, n. 4 (Powell, J., concurring).

Justice Brennan, Justice White, Justice Marshall, and Justice Blackmun, concurring.

We join the Court’s opinion but, having dissented in Nixon v. Fitzgerald, ante, p. 731, we disassociate ourselves from any implication in the Court’s opinion in the present case that Nixon v. Fitzgerald was correctly decided.

Justice Rehnquist, concurring.

At such time as a majority of the Court is willing to reexamine our holding in Butz v. Economou, 438 U.S. 478 (1978), I shall join in that undertaking with alacrity. But until that time comes, I agree that the Court's opinion in this case properly disposes of the issues presented, and I therefore join it.

Chief Justice Burger, dissenting.

* * * * *

Harlow v. Fitzgerald TranscriptAccess this transcript at Lexis.

Harlow v. Fitzgerald Briefsimage


Notes on: Harlow v. Fitzgerald


Qualified Immunity Redefined

  1. In what respects did the Court alter the elements of the qualified immunity?
    1. After Harlow, may an official who intended to violate plaintiff's constitutional rights or intended to injure the plaintiff be held liable if the right invaded was not clearly established?
    2. Is an official who deprived plaintiff of a constitutional right in violation of explicit agency policy or orders immune if the right was not clearly established? May the injured party offer evidence of the policy or orders? Discover such evidence?
  2. Does the procedure for adjudicating a claim of qualified immunity established by Harlow comport with usual practice under the Federal Rules of Civil Procedure? See 6 Pt. 2 J. Moore, Moore's Federal Practice ¶ 56.15[5] (2d ed. 1976) (“The party opposing summary judgment must be given a reasonable opportunity to gain access to proof, particularly where the facts are largely within the knowledge or control of the moving party.”)
  3. Did the Court's modification of the standards governing the qualified immunity arise out of a concern that the existing test did not adequately shield federal officials from liability for constitutional violations? A 1979 study of all reported Bivens cases revealed that the plaintiffs prevailed in but 5 of the 136 cases in which judgment or dismissal was entered. Note, “Damages or Nothing” - The Efficacy of the Bivens-Type Remedy At LexisNexis., 64 Cornell L. Rev. 667, 694 (1979). The remaining 131 cases were disposed of on the following grounds:
    No meritorious claim40
    No Bivens-type cause of action8
    No constitutional violation32
    Grounds unrelated to merits89
    Proper defendant problems18
    Improper personal jurisdiction or service of process12
    Insufficient jurisdictional amount5
    Statute of limitations bar3
    Sovereign immunity bar26
    Individual immunity bar51
    Relationship to merits unknown21
    General verdict by jury3
    Insufficient pleadings9
    Total judgments for defendants131
    Id. at 695.
  4. Why did the Court find it necessary to adjust the qualified immunity? What evidence does the Court cite to demonstrate that the existing immunity was defective?
    1. A review of § 1983 cases filed in 1975 and 1976 in the Central District of California found that of 276 non-prisoner cases filed, depositions were conducted in 56 cases and 17 cases went to trial. Theodore Eisenberg, Section 1983:Doctrinal Foundations and an Empirical Study At LexisNexis., 67 Cornell L. Rev. 482, 550-53 (1982). Of the 212 prisoner § 1983 claims filed in the same period, depositions were conducted in 5 cases and 3 cases proceeded to trial. Id. at 554.
    2. An empirical study of prisoner § 1983 suits in five federal districts in 1975-1977 concluded:

      Few prisoners attempted to conduct discovery, and still fewer successfully obtained any discovery. Hardly any of the cases went to trial. Only 18 of the 664 cases studied had either an evidentiary hearing or a trial. A grand total of forty-four court days over a two-and-one-half-year period were spent on the cases studied.

      William Bennett Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal CourtsAt LexisNexis., 92 Harv. L. Rev. 610, 624 (1979). The Court subsequently relied on this study in Cleavinger v. SaxnerAt LexisNexis., 474 U.S. 193 (1985), in rejecting the claim of prison disciplinary committee members that absolute immunity is needed to avoid procedural burdens and the expense of litigation.

    3. A third empirical study analyzed prisoner § 1983 cases filed in the Northern District of Illinois in 1971 and 1973. William S. Bailey, The Realities of Prisoners' Cases Under 42 U.S.C. § 1983: A Statistical Survey in the Northern District of Illinois At LexisNexis., 6 Loy. U. Chi. L.J. 527 (1975). Of the 218 cases filed in 1971, all but 22 were summarily dismissed. Depositions were conducted in only nine cases and hearings were held in only seven. Id. at 551. Of the 173 cases filed in 1973, all but 36 were summarily dismissed. Depositions were taken in 7 cases and hearings were held in 22. Id. at 552.
    4. The most recent assessment of § 1983 and Bivens litigation focused on cases in the Central District of California in 1980 and 1981. The study concluded that “discovery events occur somewhat more often in nonprisoner constitutional tort cases” and that “[j]udges are somewhat more likely to have a pretrial conference or conduct a trial in a constitutional tort case.” Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation At LexisNexis., 72 Cornell L. Rev. 641, 675 (1987). The authors cautioned, however, that their conclusions were limited to a single district and suggested “that decision makers demand evidence to support assertions about constitutional tort cases, and that they not act in the empirical void that has dominated discussion to date.” Id. at 695.
  5. Was reconfiguration of the immunity standard necessary to meet the Court's concerns?

    Harlow was decided at a time when the standards applicable to summary judgment made it difficult for a defendant to secure summary judgment regarding a factual question such as subjective intent, even when the plaintiff bore the burden of proof on the question; and in Harlow we relied on that fact in adopting an objective standard for qualified immunity. 457 U.S. at 815-819. However, subsequent clarifications to summary-judgment law have alleviated that problem, by allowing summary judgment to be entered against a non-moving party “who fails to make a showing sufficient to establish the existence of an element necessary to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett At LexisNexis., 477 U.S. 317, 322 (1986). Under the principles set forth in Celotex and related cases, the strength of factual allegations such as subjective bad faith can be tested at the summary-judgment stage.

    Wyatt v. Cole At LexisNexis., 504 U.S. 158, 171 (1992)(Kennedy, J. concurring). Does Celotex supplant the need for abrogation of the subjective tier of the immunity? Does the Court have the power to restore the pre-Harlow standard?

  6. Does the Harlow standard for the qualified immunity apply to actions against state and local officials under Section 1983?
    1. Harlow was a civil damages action for violation of constitutional rights against individual federal government officials. Section 1983 does not apply to federal officials, nor is there a statutory counterpart to Section 1983 which generally affords a civil damage remedy for the constitutional wrongs of federal officials. However, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971), the Supreme Court implied from the Constitution a cause of action for damages against individual federal officials.

      In Butz v. Economou , 438 U.S. 478 (1978), the Supreme Court was called upon to determine what immunities apply to the Bivens cause of action. As noted in footnote 30 of the Harlow opinion, the Butz Court held that federal officials sued in Bivens action should have the same immunity as their state counterparts sued under Section 1983.

      Four days after its Harlow opinion, the Supreme Court vacated and remanded a decision of the United States Court of Appeals for the Sixth Circuit in which two state parole officers had unsuccessfully asserted a qualified immunity defense. The order of the Supreme Court, in pertinent part, reads as follows:

      [T]his cause is remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of Harlow v. Fitzgerald, 457 U.S. 800 [102 S. Ct. 2727, 73 L.Ed.2d 396] (1982). See Butz v. Economou, 438 U.S. [478] 504 [98 S. Ct. 2894, 2909, 57 L.Ed.2d 895] (1978) (deeming it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials”).

      Wolfel v. Sanborn At LexisNexis., 458 U.S. 1102 (1982). The court of appeals construed the remand order to mean that the Harlow qualified immunity standard likewise governs Section 1983 actions. Wolfel v. Sanborn At LexisNexis., 691 F.2d 270 (6th Cir. 1982).

      In Davis v. Scherer, 468 U.S. 183, 193 (1984), the plaintiff conceded that the Harlow standard applied to his Section 1983 action. While noting that Harlow was a suit against federal officials, the Supreme Court reiterated that “our cases have recognized that the same qualified immunity rules apply in suits against state officers under § 1983 and in suits against federal officials under Bivens…” 468 U.S. at 194 n.12. See also Anderson v. Creighton , 483 U.S. 635, 642 n.4 (1987); Malley v. Briggs At LexisNexis., 475 U.S. 335, 340 n.2 (1986).

    2. Does the rationale of Butz v. Economou, cited in footnote 30 of Harlow, in fact dictate that the immunity as revised in Harlow must extend to individual state and local government officials sued under Section 1983?
      1. On what basis did the Court find that Congress incorporated a qualified immunity defense when it enacted Section 1983? See Pierson v. Ray, supra. Is Harlow consistent with the origin of the qualified immunity defense?

        In Anderson v. Creighton, 483 U.S. 635 (1987), a Bivens action arising out of a warrantless residence search, plaintiffs contended that the FBI officials who conducted the search could not assert a qualified immunity defense because officers conducting such searches were strictly liable at English common law. Rejecting this argument as “procrustean,” Justice Scalia reasoned:

        [W]e have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law. That notion is plainly contradicted by Harlow, where the Court completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action.

        Anderson, 483 U.S. at 645. See also Crawford-El v. Britton, 523 U.S. 574, 604 (Rehnquist, J., dissenting) (Harlow Court "'purged' qualified immunity doctrine of its subjective component and remolded it so that it turned entirely on 'objective legal reasonableness'"). Justice Scalia subsequently explained his justification for departing from the common law to redefine qualified immunity:

        As I have observed earlier, our treatment of qualified immunity under 42 U.S.C. §1983 has not purported to be faithful to the common-law immunities that existed when §1983 was enacted, and that the statute presumably intended to subsume. That is perhaps just as well. The §1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of Monroe v. Pape, 365 U.S. 167 (1961), which converted an 1871 statute covering constitutional violations committed "under color of any statute, ordinance, regulation, custom or usage of any State," into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law… . Monroe changed a statute that had generated only 21 cases in the first 50 years of its existence into one that pours into the federal courts tens of thousands of suits each year, and engages this Court in a losing struggle to prevent the Constitution from degenerating into a general tort law… . Applying normal common-law rules to the statute that Monroe created would carry us further and further from what any sane Congress could have enacted.
        Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting).
      2. In Malley v. Briggs At LexisNexis., 475 U.S. 335, 342 (1986), the Court refused to extend absolute prosecutorial immunity to a state police officer who was sued for allegedly presenting a judge with a complaint and supporting affidavit that failed to establish probable cause:

        We reemphasize that our role is to interpret the intent of Congress in enacting § 1983, not to make a free-wheeling policy choice, and that we are guided in interpreting Congress' intent by the common-law tradition. In Imbler, supra, we concluded that at common law “[t]he general rule was, and is, that a prosecutor is absolutely immune from suit for malicious prosecution.” Id., at 437, 96 S. Ct., at 998. We do not find a comparable tradition of absolute immunity for one whose complaint causes a warrant to issue. See n.3, supra. While this observation may seem unresponsive to petitioner's policy argument it is, we believe, an important guide to interpreting § 1983. Since the statute on its face does not provide for any immunities, we would be going far to read into it an absolute immunity for conduct which was only accorded qualified immunity in 1871.

        Malley at 475 U.S. at 342. See also Wyatt v. Cole At LexisNexis., 504 U.S. 158, 171-72 (1992)(Kennedy, J. concurring)(“It must be remembered that unlike the common-law judges whose doctrines we adopt, we are devising limitations to a remedial statute, enacted by Congress, which 'on its face does not provide for any immunities.' We have imported common-law doctrines in the past because of our conclusion that the Congress which enacted §1983 acted in light of existing legal principles. That suggests, however, that we may not transform what existed at common law based upon our notions of policy or efficiency.” (citations omitted)).

        Does the Malley reasoning resolve whether Harlow can apply to Section 1983 actions? See Gary S. Gildin, Immunizing Intentional Violations of Constitutional Rights Through Judicial Legislation: The Extension of Harlow v. Fitzgerald to Section 1983 Actions At LexisNexis., 38 Emory L.J. 369 (1989).

  7. In Wyatt v. Cole At LexisNexis., 504 U.S. 158 (1992), the Court considered whether qualified immunity extends to private actors sued under §1983. Defendants, a private business partner of the plaintiff, and his attorney, were sued for filing a state court replevin action which was found to violate due process. To determine whether these individuals were entitled to immunity, the Court looked to the common law rules governing the most analogous torts -- malicious prosecution and abuse of process.

    At common law, private defendants could prevail in an action for malicious prosecution or abuse of process if they acted without malice and with probable cause. The Court found, however, that immunity afforded by Harlow went significantly further, according immunity from suit rather than merely a defense to liability. The Court then reasoned that the rationale mandating expanded immunity for government officials does not pertain to private parties:

    Private parties hold no office requiring them to exercise discretion; nor are they principally concerned with enhancing the public good. Accordingly, extending Harlow qualified immunity to private parties would have no bearing on whether public officials are able to act forcefully and decisively in their jobs or whether qualified applicants enter public service. Moreover, unlike with government officials performing government functions, the public interest will not be unduly impaired if private individuals are required to proceed to trial to resolve their legal disputes. In short, the nexus between private parties and the historic purposes of qualified immunity is simply too attenuated to justify such an extension of our doctrine of immunity.

    504 U.S. at 168. While denying private officials qualified immunity as re-defined in Harlow, the Court took pains to make clear that it was not deciding whether private defendants sued under §1983 are entitled to an affirmative defense on the merits based on good-faith and/or probable cause. Id. at 169.

  8. Does Harlow preclude any inquiry into the government official's subjective intent when plaintiff must prove that intent to establish a constitutional violation?
  1. In Crawford-El v. Britton At LexisNexis., 523 U.S. 574 (1998), a prisoner filed a Section 1983 action alleging that prison officials had deliberately misdirected the transfer of his personal belongings and legal materials to punish the prisoner for exercising his First Amendment rights. The court of appeals adopted a special procedural rule for cases where the constitutionality of the defendant’s action turns on motive, designed to fulfill Harlow’s goal of protecting government officials from the burdens of litigation. In order to facilitate pretrial disposition of such cases, defendant would be entitled to judgment unless plaintiff established the unconstitutional motive by clear and convincing evidence, rather than by a preponderance of the evidence.

    The Supreme Court reversed. The Court first explained that the court of appeals’ approach was not justified by either the holding or reasoning in Harlow:

    Our holding that “bare allegations of malice” cannot overcome the qualified immunity defense did not implicate the elements of the plaintiff’s initial burden of proving a constitutional violation … . Thus, although evidence of improper motive is irrelevant on the issue of qualified immunity, it may be an essential component of the plaintiff’s affirmative case. Our holding in Harlow, which related only to the scope of an affirmative defense, provides no support for making any change in the nature of the plaintiff’s burden of proving a constitutional violation. * * * * *

    There are several reasons why we believe that here, unlike Harlow, the proper balance [between vindicating constitutional guarantees and shielding officials from the social costs of litigation] does not justify a judicial revision of the law to bar claims that depend on proof of an official’s motive… . Under Wood, the mere allegation of intent to cause any “other injury,” not just a deprivation of constitutional rights, would have permitted an open-ended inquiry into subjective motivation. When intent is an element of a constitutional violation, however, the primary focus is not an any possible animus directed at the plaintiff; rather, it is more specific, such as an intent to disadvantage all members of a class that includes the plaintiff, or to deter public comment on a specific issue of public importance… . [E]xisting law already prevents this more narrow element of unconstitutional motive from automatically carrying a plaintiff to trial… . First, there may be doubt as to the illegality of the defendant’s particular conduct for instance whether a plaintiff’s speech was a matter of public concern… . Second, at least with certain types of claims, proof of an improper motive is not sufficient to establish a constitutional violation-there must also be evidence of causation… . The reasoning in Harlow, like its specific holding, does not justify a rule that places a thumb on the defendant’s side of the scales when the merits of a claim that the defendant knowingly violated the law are being resolved.

    Britton At LexisNexis., 523 U.S. at 588-93. The Court then reasoned that the heightened burden of proof legislated by the court of appeals exceeded its judicial authority:

    Neither the text of §1983 or any other federal statute, nor the Federal Rules of Civil Procedure, provide any support for imposing the clear and convincing burden of proof on plaintiffs either at the summary judgment stage or in the trial itself. The same might be said of the qualified immunity defense; but in Harlow, as in the series of earlier cases concerning both the absolute and the qualified immunity defenses, we were engaged in a process of adjudication that we had consistently and repeatedly viewed as appropriate for judicial decision-a process "predicated upon a considered inquiry into the immunity historically accorded the relevant officials at common law and the interests behind it." The unprecedented change made by the Court of Appeals in this case, however, lacks any common-law pedigree and alters the cause of action itself in a way that undermines the very purpose of §1983-to provide a remedy for the violation of constitutional rights… . [Q]uestions regarding pleading, discovery and summary judgment are most frequently and most effectively resolved either by the rulemaking process or the legislative process.

    Britton At LexisNexis., 523 U.S. at 594-95. Are you persuaded by the Court’s explanation of its power to redefine the contours of the qualified immunity?

  2. While the Supreme Court refused to heighten the burden of proof in unconstitutional motive Section 1983 cases, the Court did catalog the procedural mechanisms that could assist trial courts to dispose of baseless claims:
    The court may at first permit the plaintiff to take only a focused deposition of the defendant before allowing any additional discovery. Alternatively, the court may postpone all inquiry regarding the official’s subjective motive until discovery has been had on objective factual questions such as whether the plaintiff suffered any injury or whether the plaintiff actually engaged in protected conduct that could be the object of unlawful retaliation… . [T]he defendant-official may move for partial summary judgment on objective issues that are potentially dispositive and are more amenable to summary disposition than disputes about the official’s intent, which frequently turn on credibility assessments. Of course, the judge should give priority to discovery concerning issues that bear upon the qualified immunity defense, such as actions that the official actually took, since that defense should be resolved as early as possible.

    Beyond these procedures and others that we have not mentioned, summary judgment serves as the ultimate screen to weed out truly insubstantial suits prior to trial. At that stage … the plaintiff may not respond simply with general attacks upon the defendant’s credibility, but rather must identify affirmative evidence from which a jury could find that plaintiff has carried his or her burden of proving the pertinent motive. Finally, federal judges are undoubtedly familiar with two additional tools that are available in extreme cases to protect public officials from undue harassment: Rule 11, which authorizes sanctions for the filing of papers that are frivolous, lacking in factual support, or “presented for any improper purpose, such as to harass”; and 28 U.S.C. §1915(e)(2) (1994 ed., Supp. II), which authorizes dismissal “at any time” of in forma pauperis suits that are “frivolous or malicious.”

    BrittonAt LexisNexis., 523 U.S. at 599-600.


C. When is a Right Clearly Established?



468 U.S. 183 (1984) Davis v. Scherer


Justice Powell delivered the opinion of the Court.

Appellants in this case challenge the holding of the Court of Appeals that a state official loses his qualified immunity from suit for deprivation of federal constitutional rights if he is found to have violated the clear command of a state administrative regulation.


* * * * *

Appellee’s complaint alleged that appellants in 1977 had violated the Due Process Clause of the Fourteenth Amendment by discharging appellee from his job without a formal pretermination or a prompt post-termination hearing. Appellee requested a declaration that his rights had been violated and an award of money damages.

The District Court granted the requested relief for violation of appellee’s Fourteenth Amendment rights. The court found that appellee had a property interest in his job and that the procedures followed by appellants to discharge appellee were constitutionally “inadequate” under the Fourteenth Amendment. Id., at 14. Further, the court declared unconstitutional Florida’s statutory provisions governing removal of state employees, Fla. Stat. § 110.061 (1977). Finally, the District Court concluded that appellants had forfeited their qualified immunity from suit under § 1983 because appellee’s “due process rights were clearly established at the time of his October 24, 1977, dismissal.” Id., at 16.

Five days after entry of the District Court’s order, the Court of Appeals for the Fifth Circuit decided Weisbrod v. Donigan At LexisNexis., 651 F.2d 334 (1981). The Court of Appeals there held that Florida officials in 1978 had violated no well-established due process rights in discharging a permanent state employee without a pretermination or a prompt post-termination hearing. On motion for reconsideration, the District Court found that Weisbrod required it to vacate its prior holding that appellants had forfeited their immunity by violating appellee’s clearly established constitutional rights. The court nevertheless reaffirmed its award of monetary damages. It reasoned that proof that an official had violated clearly established constitutional rights was not the “sole way” to overcome the official’s claim of qualified immunity.

Applying the “totality of the circumstances” test of Scheuer v. Rhodes At LexisNexis., 416 U.S. 232, 247-248 (1974), the District Court held that “if an official violates his agency’s explicit regulations, which have the force of state law, [that] is evidence that his conduct is unreasonable.” 543 F.Supp., at 19. In this respect, the court noted that the personnel regulations of the Florida Highway Patrol clearly required “a complete investigation of the charge and an opportunity [for the employee] to respond in writing.” Id., at 20.6Footnote. The District Court concluded that appellants in discharging appellee had “followed procedures contrary to the department’s rules and regulations”; therefore, appellants were “not entitled to qualified immunity because their belief in the legality of the challenged conduct was unreasonable.” Ibid. The court explicitly relied upon the official violation of the personnel regulation, stating that “[if] [the] departmental order had not been adopted … prior to [appellee’s] dismissal, no damages of any kind could be awarded.” Ibid. The District Court’s order amending the judgment did not discuss the issue whether appellants violated appellee’s federal constitutional rights. On that issue, the District Court relied upon its previous opinion; the court did not indicate that the personnel regulation was relevant to its analysis of appellee’s rights under the Due Process Clause.

The District Court also amended its judgment declaring the Florida civil service statute unconstitutional. The State’s motion for reconsideration had informed the court that the statute had been repealed by the Florida Legislature. The District Court therefore declared unconstitutional the provisions of the newly enacted civil service statute, Fla. Stat., ch. 110 (1982 and Supp. 1983), insofar as “they fail to provide a prompt post-termination hearing.” Id., at 21.

The Court of Appeals affirmed on the basis of the District Court’s opinion. Scherer v. Graham, 710 F.2d 838 (CA11 1983). We noted probable jurisdiction, 464 U.S. 1017 (1983), to consider whether the Court of Appeals properly had declared the Florida statute unconstitutional and denied appellants’ claim of qualified immunity. Appellants do not seek review of the District Court’s finding that appellee’s constitutional rights were violated. As appellee now concedes that the District Court lacked jurisdiction to adjudicate the constitutionality of the Florida statute enacted in 1981, we consider only the issue of qualified immunity. We reverse.7Footnote.


In the present posture of this case, the District Court's decision that appellants violated appellee's rights under the Fourteenth Amendment is undisputed.8Footnote. This finding of the District Court -- based entirely upon federal constitutional law -- resolves the merits of appellee's underlying claim for relief under § 1983. It does not, however, decide the issue of damages. Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard. The precise standard for determining when an official may assert the qualified immunity defense has been clarified by recent cases, see Wood v. Strickland , 420 U.S. 308 (1975); Butz v. Economou , 438 U.S. 478 (1978); Harlow v. Fitzgerald , 457 U.S. 800 (1982). The present case requires us to consider the application of the standard where the official’s conduct violated a state regulation as well as a provision of the Federal Constitution.

The District Court’s analysis of appellants’ qualified immunity, written before our decision in Harlow v. Fitzgerald, supra, rests upon the “totality of the circumstances” surrounding appellee’s separation from his job. This Court applied that standard in Scheuer v. Rhodes At LexisNexis., 416 U.S., at 247-248. As subsequent cases recognized, Wood v. Strickland, supra, at 322, the “totality of the circumstances” test comprised two separate inquiries: an inquiry into the objective reasonableness of the defendant official’s conduct in light of the governing law, and an inquiry into the official’s subjective state of mind. Harlow v. Fitzgerald , supra, rejected the inquiry into state of mind in favor of a wholly objective standard. Under Harlow, officials “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S., at 818. Whether an official may prevail in his qualified immunity defense depends upon the “objective reasonableness of [his] conduct as measured by reference to clearly established law.” Ibid. (footnote deleted). No other “circumstances” are relevant to the issue of qualified immunity.

Appellee suggests, however, that the District Court judgment can be reconciled with Harlow in two ways. First, appellee urges that the record evinces a violation of constitutional rights that were clearly established. Second, in appellee’s view, the District Court correctly found that, absent a violation of clearly established constitutional rights, appellants’ violation of the state administrative regulation — although irrelevant to the merits of appellee’s underlying constitutional claim — was decisive of the qualified immunity question. In our view, neither submission is consistent with our prior cases.


Appellee contends that the District Court’s reliance in its qualified immunity analysis upon the state regulation was “superfluous,” Brief for Appellee 19, because the federal constitutional right to a pretermination or a prompt post-termination hearing was well established in the Fifth Circuit at the time of the conduct in question. As the District Court recognized in rejecting appellee’s contention, Weisbrod v. Donigan At LexisNexis., 651 F.2d 334 (CA5 1981), is authoritative precedent to the contrary. The Court of Appeals in that case found that the State had violated no clearly established due process right when it discharged a civil service employee without any pretermination hearing.9Footnote.

Nor was it unreasonable in this case, under Fourteenth Amendment due process principles, for the Department to conclude that appellee had been provided with the fundamentals of due process.10Footnote. As stated above, the District Court found that appellee was informed several times of the Department's objection to his second employment and took advantage of several opportunities to present his reasons for believing that he should be permitted to retain his part-time employment despite the contrary rules of the Patrol. Appellee’s statement of reasons and other relevant information were before the senior official who made the decision to discharge appellee. And Florida law provided for a full evidentiary hearing after termination. We conclude that the District Court correctly held that appellee has demonstrated no violation of his clearly established constitutional rights.


Appellee’s second ground for affirmance in substance is that upon which the District Court relied. Appellee submits that appellants, by failing to comply with a clear state regulation, forfeited their qualified immunity from suit for violation of federal constitutional rights.

Appellee makes no claim that the appellants’ violation of the state regulation either is itself actionable under § 1983 or bears upon the claim of constitutional right that appellee asserts under § 1983.11 And appellee also recognizes that Harlow v. Fitzgerald makes immunity available only to officials whose conduct conforms to a standard of “objective legal reasonableness.” 457 U.S., at 819. Nonetheless, in appellee’s view, official conduct that contravenes a statute or regulation is not “objectively reasonable” because officials fairly may be expected to conform their conduct to such legal norms. Appellee also argues that the lawfulness of official conduct under such a statute or regulation may be determined early in the lawsuit on motion for summary judgment. Appellee urges therefore that a defendant official’s violation of a clear statute or regulation, although not itself the basis of suit, should deprive the official of qualified immunity from damages for violation of other statutory or constitutional provisions.

On its face, appellee’s reasoning is not without some force. We decline, however, to adopt it. Even before Harlow, our cases had made clear that, under the “objective” component of the good-faith immunity test, “an official would not be held liable in damages under § 1983 unless the constitutional right he was alleged to have violated was ‘clearly established’ at the time of the violation.” Butz v. Economou, 438 U.S., at 498 (emphasis added); accord, Procunier v. Navarette, 434 U.S. 555, 562 (1978). Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.12Footnote.

We acknowledge of course that officials should conform their conduct to applicable statutes and regulations. For that reason, it is an appealing proposition that the violation of such provisions is a circumstance relevant to the official’s claim of qualified immunity. But in determining what circumstances a court may consider in deciding claims of qualified immunity, we choose “between the evils inevitable in any available alternative.” Harlow v. Fitzgerald, 457 U.S., at 813-814. Appellee’s submission, if adopted, would disrupt the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties. The qualified immunity doctrine recognizes that officials can act without fear of harassing litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages and only if unjustified lawsuits are quickly terminated. See Butz v. Economou, supra, at 506-507; Harlow v. Fitzgerald, supra, at 814, 818-819. Yet, under appellee’s submission, officials would be liable in an indeterminate amount for violation of any constitutional right — one that was not clearly defined or perhaps not even foreshadowed at the time of the alleged violation — merely because their official conduct also violated some statute or regulation. And, in §1983 suits, the issue whether an official enjoyed qualified immunity then might depend upon the meaning or purpose of a state administrative regulation, questions that federal judges often may be unable to resolve on summary judgment.

Appellee proposes that his new rule for qualified immunity be limited by requiring that plaintiffs allege clear violation of a statute or regulation that advanced important interests or was designed to protect constitutional rights. Yet, once the door is opened to such inquiries, it is difficult to limit their scope in any principled manner. Federal judges would be granted large discretion to extract from various statutory and administrative codes those provisions that seem to them sufficiently clear or important to warrant denial of qualified immunity. And such judgments fairly could be made only after an extensive inquiry into whether the official in the circumstances of his decision should have appreciated the applicability and importance of the rule at issue. It would become more difficult, not only for officials to anticipate the possible legal consequences of their conduct,13 but also for trial courts to decide even frivolous suits without protracted litigation.

Nor is it always fair, or sound policy, to demand official compliance with statute and regulation on pain of money damages. Such officials as police officers or prison wardens, to say nothing of higher level executives who enjoy only qualified immunity, routinely make close decisions in the exercise of the broad authority that necessarily is delegated to them. These officials are subject to a plethora of rules, “often so voluminous, ambiguous, and contradictory, and in such flux that officials can only comply with or enforce them selectively.” See P. Schuck, Suing Government 66 (1983). In these circumstances, officials should not err always on the side of caution. “[Officials] with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office.” Scheuer v. Rhodes At LexisNexis., 416 U.S., at 246.14Footnote.


A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official’s qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue. As appellee has made no such showing, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Brennan, with whom Justice Marshall, Justice Blackmun, and Justice Stevens join, concurring in part and dissenting in part.

In Harlow v. Fitzgerald , 457 U.S. 800 (1982), the Court decided that Government officials seeking to establish qualified immunity must show that the acts or omissions violating the plaintiff’s rights were objectively reasonable — specifically, that the conduct at issue did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id., at 818. The Court today does not purport to change that standard. Yet it holds that, despite discharging a civil service employee in 1977 without meaningful notice and an opportunity to be heard, appellants are entitled to immunity from a suit for damages. The Court reaches this decision essentially by ignoring both the facts of this case and the law relevant to appellants’ conduct at the time of the events at issue. In my view, appellants plainly violated appellee’s clearly established rights and the Court’s conclusion to the contrary seriously dilutes Harlow’s careful effort to preserve the availability of damages actions against governmental officials as a critical “avenue for vindication of constitutional guarantees.” Id., at 814. Accordingly, I dissent from that portion of the judgment reversing the award of damages.

In order to determine whether a defendant has violated a plaintiff’s clearly established rights, it would seem necessary to make two inquiries, both of which are well within a court’s familiar province: (1) which particular act or omission of the defendant violated the plaintiff’s federal rights, and (2) whether governing case or statutory law would have given a reasonable official cause to know, at the time of the relevant events, that those acts or omissions violated the plaintiff’s rights. The Court, however, asks neither question. Its brief treatment of the issue includes no reference to the District Court’s findings of fact with respect to the conduct at issue here. This is not surprising since those findings — which were affirmed summarily by the Court of Appeals and which appellants do not claim to be clearly erroneous — demonstrate that appellee was never informed that he might be fired for violating regulations against dual employment. Nor did appellee ever have an opportunity to persuade the relevant decisionmaker that he should not be disciplined.

* * * * *

By failing to warn appellee that his conduct could result in deprivation of his protected property interest in his Highway Patrol job and by denying him an opportunity to challenge that deprivation, appellants violated the most fundamental requirements of due process of law — meaningful notice and a reasonable opportunity to be heard. Contrary to the Court’s conclusion, these requirements were “clearly established” long before October 25, 1977, the date on which appellee learned he was fired. As long ago as 1914, the Court emphasized that “[the] fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean At LexisNexis., 234 U.S. 385, 394. In 1925, the Court explained that a government failure to afford reasonable notice of the kinds of conduct that will result in deprivations of liberty and property “violates the first essential of due process of law.” Connally v. General Construction Co.At LexisNexis., 269 U.S. 385, 391. And in several decisions in the 1950’s, the Court concluded that public employees have interests in maintaining their jobs that cannot be abridged without due process. E. g., Slochower v. Board of Education At LexisNexis., 350 U.S. 551 (1956); Wieman v. Updegraff At LexisNexis., 344 U.S. 183 (1952); see Board of Regents v. Roth At LexisNexis., 408 U.S. 564, 576-577 (1972).

In January 1972, nearly six years prior to appellee’s termination, the Court reaffirmed that:

“[before] a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, ‘except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.’ Boddie v. Connecticut At LexisNexis., 401 U.S. 371, 379. ‘While “[many] controversies have raged about . . . the Due Process Clause,” … it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate [a protected] interest … , it must afford “notice and opportunity for hearing appropriate to the nature of the case” before the termination becomes effective.’ Bell v. Burson At LexisNexis., 402 U.S. 535, 542. For the rare and extraordinary situations in which we have held that deprivation of a protected interest need not not be preceded by opportunity for some kind of hearing, see, e. g., Central Union Trust Co. v. Garvan At LexisNexis., 254 U.S. 554, 566; Phillips v. Commissioner At LexisNexis., 283 U.S. 589, 597; Ewing v. Mytinger & Casselberry, Inc. At LexisNexis., 339 U.S. 594.” Board of Regents v. Roth At LexisNexis., supra, at 570, n. 7.

Similarly, in 1974, based on an exhaustive review of our cases, Justice White explained that “where there is a legitimate entitlement to a job, as when a person is given employment subject to his meeting certain specific conditions, due process requires, in order to insure against arbitrariness by the State in the administration of its law, that a person be given notice and a hearing before he is finally discharged.” Arnett v. Kennedy At LexisNexis., 416 U.S. 134, 185 (concurring in part and dissenting in part). Seeid., at 170 (opinion of Powell, J.,); id., at 203 (Douglas, J.,dissenting); id., at 212-227 (Marshall, J., dissenting). And finally, in February 1976, more than a year and a half prior to appellee’s termination, Justice Powell summarized for the Court fundamental legal principles whose sources could be traced to cases from the 19th century:

“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment… . This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell At LexisNexis., 418 U.S. 539, 557-558 (1974). See, e. g., Phillips v. Commissioner At LexisNexis., 283 U.S. 589, 596-597 (1931). See also Dent v. West Virginia At LexisNexis., 129 U.S. 114, 124-125 (1889). The ‘right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.’ Joint Anti-Fascist Comm. v. McGrath At LexisNexis., 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo At LexisNexis., 380 U.S. 545, 552 (1965). See Grannis v. Ordean At LexisNexis., 234 U.S. 385, 394 (1914).” Mathews v. Eldridge At LexisNexis., 424 U.S. 319, 332-333 (1976). See also Goss v. Lopez At LexisNexis., 419 U.S. 565(1975); Perry v. Sindermann At LexisNexis., 408 U.S. 593 (1972); Fuentes v. Shevin At LexisNexis., 407 U.S. 67 (1972); Stanley v. Illinois At LexisNexis., 405 U.S. 645 (1972);  Connell v. Higginbotham At LexisNexis., 403 U.S. 207 (1971) (per curiam); Wisconsin v. Constantineau At LexisNexis., 400 U.S. 433 (1971); Goldberg v. Kelly At LexisNexis., 397 U.S. 254 (1970); Sniadach v. Family Finance Corp. At LexisNexis., 395 U.S. 337 (1969).

If there were any ambiguity in the repeated pronouncements of this Court, appellants had several other reasons to know that their failure to afford appellee meaningful pretermination notice and hearing violated due process. Two years prior to appellee’s discharge, the Florida Attorney General explained in an official opinion that “[career] service employees who have attained permanent status in the career service system have acquired a property interest in their public positions and emoluments thereof — such as job security and seniority which they may not be deprived of without due process of law.” Fla. Op. Atty. Gen. 075-94, p. 161 (1975). And more than a year before the events at issue here, in a case involving the Jacksonville, Fla., City Civil Service Board, the Court of Appeals for the Fifth Circuit left no doubt as to what it thought “clearly established” law required:

“Where a governmental employer chooses to postpone the opportunity of a nonprobationary employee to secure a full-evidentiary hearing until after dismissal, risk reducing procedures must be accorded. These must include prior to termination, written notice of the reasons for termination and an effective opportunity to rebut those reasons. Effective rebuttal must give the employee the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision.” Thurston v. Dekle At LexisNexis., 531 F.2d 1264, 1273 (1976), vacated and remanded on other grounds, 438 U.S. 901 (1978).

Finally, some two months prior to appellee’s discharge, the Florida Highway Patrol issued a regulation undoubtedly intended to conform administrative practice with decisions like Thurston.2Footnote. The regulation, which has the force of statutory law, see 543 F.Supp., at 20, provides in pertinent part:

“Upon receiving a report of … a violation of Department or Division rules and regulations … the Director shall order a complete investigation to determine the true facts concerning the circumstances surrounding the alleged offense. The completed investigation report will also contain a written statement made by the employee against whom the complaint was made. If after a thorough study of all information concerning the violation, the Director decides that a … dismissal will be in order, he will present the employee in writing with the reason or reasons for such actions." General Order No. 43, § 1.C (Sept. 1, 1977), quoted in 543 F.Supp., at 19-20.

The Court ignores most of this evidence demonstrating the objective unreasonableness of appellants’ conduct. Instead, the Court relies first on Weisbrod v. Donigan At LexisNexis., 651 F.2d 334 (CA5 1981) (per curiam), as “authoritative precedent” for the proposition that appellee’s right to pretermination notice and a hearing was not “well established in the Fifth Circuit at the time of the conduct in question.” Ante, at 192. In Weisbrod, the Court of Appeals simply declared — without citation to any of the cases just discussed, including its own decision in Thurston — that “the record indicates defendants did not act in disregard of any well-settled constitutional rights” and that “Weisbrod offers no authority indicating the failure to hold a pretermination hearing and the delay in the process of her administrative appeal were clear violations of her constitutional rights.” 651 F.2d, at 336. It is unclear from the court’s brief per curiam opinion whether Weisbrod — unlike appellee in this case — was informed prior to discharge that her conduct constituted grounds for termination. See id., at 335. In any event, the Court of Appeals’ dubious and cursory ipse dixit in Weisbrod, rendered four years after the conduct at issue in this case, is hardly persuasive, much less controlling, authority for this Court’s decision that appellee’s rights were not clearly established in 1977.

The other basis for the Court’s rejection of appellee’s claim is an assertion that it was not “unreasonable in this case, under Fourteenth Amendment principles, for the Department to conclude that appellee had been provided with the fundamentals of due process.” Ante, at 192. The Court seeks to support this statement by relying on the fact that appellee had been told to discontinue his second job and that he “took advantage of several opportunities to present his reasons for believing that he should be permitted to retain his part-time employment… .” Ibid. Appellee did not, however, have an opportunity to present his reasons for retaining his civil service job with the Florida Highway Patrol — the employment in which he had a protected property interest. See 543 F.Supp., at 12. Indeed, he was, according to the District Court, never told that his Highway Patrol job was in jeopardy, and he never had a chance to try to persuade the relevant decisionmaker that the second job did not create a conflict of interest. The Court concedes that our decisions by 1978 had required notice and “‘some kind of a hearing’ … prior to discharge of an employee who had a constitutionally protected property interest in his employment.” Ante, at 192, n. 10. In this case, appellee received no meaningful notice and no kind of hearing before the official who fired him.

In sum, I believe that appellants’ actions “[violated] clearly established statutory or constitutional rights of which a reasonable person would have known,” Harlow, 457 U.S., at 818, and I would therefore affirm the District Court’s award of damages.

Davis v. Scherer TranscriptAccess this transcript at Lexis.

Davis v. Scherer Briefs image


Notes on Davis v. Scherer


  1. Did Davis answer whether the abrogation of the subjective tier of the qualified immunity in Harlow v. Fitzgerald applies to Section 1983 actions? See Wilson v. Layne, 526 U.S. 603, 609 (1999) (“Although this case involves suits under both § 1983 and Bivens, the qualified immunity analysis is the same under either cause of action.”). What was the plaintiff/appellee’s position on the issue?
  2. Why did the Court conclude that the defendants had not violated a clearly established due process right? What source(s) of law did the Court utilize in making this determination?
  3. The Davis Court found that plaintiff had not suffered a clearly established deprivation of due process in part because of the Fifth Circuit's intervening decision in Weisbrod v. Donigan At LexisNexis., 651 F.2d 334 (5th Cir. 1981). The entirety of the Fifth Circuit's reasoning in Weisbrod is as follows:
    1. As to the due process claims, Weisbrod offers no authority indicating the failure to hold a pretermination hearing and the delay in the processing of her administrative appeal were clear violations of her constitutional rights.
      Id. at 336.
    2. Why didn't the Weisbrod court consider Thurston v. Dekle At LexisNexis., 531 F.2d 1264 (5th Cir. 1976), vacated and remanded on other grounds, 438 U.S. 901 (1978) At LexisNexis., discussed in Justice Brennan's dissenting opinion? Should defendants be permitted to rely upon a conflict in the law developed after the unconstitutional action to claim immunity? See Wilson v. Layne At LexisNexis., 526 U.S. 603, 618 (1999) (“Between the time of the events of this case and today’s decision, a split among the Federal Circuits in fact developed on the question whether media ride-alongs that enter homes subject the police to money damages…. If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.”).
    3. May the plaintiff offer decisions rendered after the constitutional violation giving rise to the Section 1983 action to prove that the right was clearly established? See Brousseau v. Haugen At LexisNexis., 543 U.S. 194 n.4 (2004) (“The parties point us to a number of other cases in this vein that postdate the conduct in question [citations omitted]. These decisions, of course, could not have given fair notice to [defendant] Brosseau and are of no use in the clearly established inquiry.”
    4. In determining whether a right is clearly established, is the court limited to considering the cases cited by the parties? In Elder v. Holloway At LexisNexis., 510 U.S. 510 (1994), the district court found police officers entitled to qualified immunity in plaintiff's Section 1983 action alleging an unreasonable seizure. Contrary to the district court's conclusion that there was no controlling case law, the Ninth Circuit had decided a case that was relevant to the constitutionality of the officers' actions. The Ninth Circuit declined to consider the precedent in reviewing the conferral of immunity, interpreting Davis v. Scherer to place the burden on the plaintiff to put into the trial record the “legal facts” showing that the right asserted was clearly established.

      The Supreme Court reversed, reasoning as follows:

      The central purpose of affording public officials qualified immunity from suit is to protect them “from undue interference with their duties and from potentially disabling threats of liability.” The rule announced by the Ninth Circuit does not aid this objective because its operation is unpredictable in advance of the district court's adjudication. Nor does the rule further the interests on the other side of the balance: deterring public officials' unlawful actions and compensating victims of such conduct. Instead, it simply releases defendants because of shortages in counsel's or the court's legal research or briefing. * * * * *

      Whether an asserted federal right was clearly established at a particular time…presents a question of law, not one of “legal facts.” That question of law, like the generality of such questions, must be resolved de novo on appeal. A court engaging in review of a qualified immunity judgment should therefore use its “full knowledge of its own [and other relevant] precedents.”

      Id. at 514-16 (citations omitted). Under the Elder rule, was the due process right in Scherer clearly established under Fifth Circuit precedents?

  4. What sources of law may a court consult if there are no relevant decisions of the Supreme Court or controlling court of appeals? May the court consider cases from the state supreme court? See Courson v. McMillian At LexisNexis., 939 F.2d 1479, 1498 n.32 (11th Cir. 1991). (“Clearly established law in this circuit may include court decisions of the highest state court in the states that comprise this circuit as to those respective states, when the state supreme court has addressed a federal constitutional issue that has not been addressed by the United States Supreme Court or the Eleventh Circuit.”) District court opinions? See Greason v. Kemp At LexisNexis., 891 F.2d 829, 833 (11th Cir. 1990). (“To decide whether … prisoners had a clearly established constitutional right to psychiatric care, we look to the law established by the Supreme Court, the courts of appeals, and the district courts.”) Decisions of other circuit courts of appeals? Compare Cleveland-Perdue v. Brutsche At LexisNexis., 881 F.2d 427, 431 (7th Cir. 1989) (“In the absence of a controlling precedent we look to all relevant caselaw in an effort to determine whether at the time of the alleged acts a sufficient consensus had been reached indicating that the official's conduct was unlawful…This approach makes eminent sense for it precludes an official from escaping liability for unlawful conduct due to the fortuity that a court in a particular jurisdiction had not yet had the opportunity to address the issue.”) with Jean v. Collins At LexisNexis., 155 F.3d 701, 709 (4th Cir. 1998) (“The very immensity of American jurisprudence creates the distinct likelihood that jurisdictions will offer conflicting opinions over how government officials should carry out their tasks. To hold officials responsible for sorting out these conflicts … could generate widespread confusion over the scope of official obligations…. Ordinarily, therefore, courts in this circuit need not look beyond the decisions of the Supreme Court, this court of appeals, and the highest court of the state in which the case arose to determine whether a right was clearly established at a particular time.”). Unpublished opnions? See Prison Legal News v. Cook At LexisNexis., 238 F. 3d 1145, 1152 (9th Cir. 2001) (“Although unpublished decisions carry no precedential weight, Departmental officials may have relied on these decisions to inform their view on whether the regulation was valid and whether enforcing it would be lawful.”)
  5. Does the fact that courts of appeals have generated conflicting results render the right per se not clearly established? Compare Garcia v. Miera At LexisNexis., 817 F.2d 650, 658 (10th Cir. 1987) (“[T]o give preclusive effect to a conflict among the circuits would effectively bind this circuit by decisions of others. Moreover, the binding would always be in denigration of the constitutional right in issue.”) with Lum v. Jensen At LexisNexis., 876 F.2d 1385, 1398 (9th Cir. 1989) (“[T]he absence of a binding precedent in the circuit plus the conflict between the circuits is sufficient, under the circumstances of this case, to undermine the clearly established nature of this right.”). See also Wilson v. Layne At LexisNexis., 526 U.S. 603, 617 (1999) (“Petitioners have not brought to our attention any cases of controlling authority in their jurisdiction … nor have they identified a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.”).
  6. Why did the Supreme Court find that the right to a pre-termination hearing was not clearly established by its own precedents? Under Davis, how factually on point must a precedent be to “clearly establish” the constitutional right allegedly violated in a Section 1983 action?
  7. After Davis, is anyone likely to file a Section 1983 action seeking to apply general constitutional rules to a new factual situation? If such an action is filed, will the court even reach the constitutional issue?
    1. In United States v. Leon At LexisNexis., 468 U.S. 897, 924-25 (1984), the Supreme Court, repudiated the argument that crafting a “good-faith” exception to the exclusionary rule would preclude judicial scrutiny of the legitimacy of searches and seizures.
      There is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated…[C]ourts have considerable discretion in conforming their decisionmaking processes to the exigencies of particular cases.

      If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue. Indeed, it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue. Even if the Fourth Amendment question is not one of broad import, reviewing courts could decide in particular cases that magistrates under their supervision need to be informed of their errors and so evaluate the officers' good faith only after finding a violation. In other circumstances, those courts could reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers' good faith. We have no reason to believe that our Fourth Amendment jurisprudence would suffer by allowing reviewing courts to exercise an informed discretion in making this choice.

    2. In County of Sacramento At LexisNexis., 523 U.S. 833, 841 n.5 (1998), the Supreme Court appeared to hold that in analyzing claims of qualified immunity, courts should decide whether the plaintiff has alleged a violation of a constitutional right before answering whether the right was clearly established at the time of the deprivation.
      [T]he better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question.

      Justice Stevens suggests that the rule … should not apply where, as here, the constitutional question “is both difficult and unresolved.” But the generally sound rule of avoiding determination of constitutional issues does not readily fit the situation presented here; when liability is claimed on the basis of a constitutional violation, even a finding of qualified immunity requires some determination about the state of constitutional law at the time the officer acted. What is more significant is that if the policy of avoidance were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment of both officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or nonconstitutional.

      See also Saucier v. Katz At LexisNexis., 233 U.S. 194, 201 (2001) (“A court required to rule upon the qualified immunity issue must consider …this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry.”) Connecticut v. Gabbert At LexisNexis., 526 U.S. 286, 290 (1999) (“[A] court must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether the right was clearly established at the time of the alleged violation.”).
    3. Does Lewis set forth the appropriate sequencing of issues in resolving qualified immunity claims? In Horne v. Coughlin At LexisNexis., 191 F.3d 244, 246-47 (2d Cir. 1999), the court of appeals held that it was not required in every case to address whether the Constitution was violated before deciding the qualified immunity issue:
      [T]he Supreme Court has for generations warned against reaching out to adjudicate constitutional matters unnecessarily. . . . Furthermore, where there is qualified immunity, a court’s assertion that a constitutional right exists would be pure dictum. … As is often the case with dictum, our declaration of a new constitutional right would run a high risk of error. Judges risk being insufficiently thoughtful and cautious in uttering pronouncements that play no role in their adjudication. Furthermore, parties may do an inadequate job briefing and presenting an issue that predictably will have no effect on the outcome of the case. A governmental official who knows the suit against him must be dismissed by reason of qualified immunity because the asserted right was not clearly established may have little incentive to contest vigorously the constitutional issue. This is all the more likely where the challenged conduct occurs in a nonrecurring fact pattern, so that the claimed right is not likely to be asserted against the same defendant… .

      The odd status of declarations of constitutional rights in dictum will likely cause further serious problems. District courts and courts of appeals will declare new constitutional rights as part of a judgment in favor of government defendants. The government defendants, as the prevailing parties, will have no opportunity to appeal for review of the newly declared constitutional right in the higher courts… . Only by defying the views of the lower court, adhering to practices that have been declared illegal, and thus inviting new suits will the state officials be able to ensure appellate review of lower court declarations of the unconstitutionality of official conduct.

    4. See also Brosseau v. Haugen At LexisNexis., 543 U.S. 194, 201-02 (2004)(Breyer, Scalia and Ginsburg, concurring) (“[T]he current rule rigidly requires courts unnecessarily to decide difficult constitutional questions where there is available an easier basis for the decision (e.g., qualified immunity) that will satsifactorily resolve the case before the court. Indeed when courts’ dockets are crwoded, a rigid “order of battle” makes little administrative sense and can sometimes lead to a constitutional decision that is effectively insulated from review, see Bunting v. Mellen At LexisNexis., 541 U.S. 1019, 1025 (2004) (Scalia, J., dissenting from denial of certiorari). For these reasons, I think we should consider this issue.”); Hunter v. Bryant At LexisNexis., 502 U.S. 224 (1991) (per curiam) (holding defendants were entitled to qualified immunity without first addressing whether plaintiff’s constitutional rights were violated); Thomas J. Healy, The Rise of Unnecessary Unconstitutional Rulings At LexisNexis., 83 N.C.L. Rev. 847 (2004).
  8. On what basis did the Court find the state regulation to be irrelevant in determining whether the state officials were immune?
    1. As a behavioral matter, what role do state regulations likely play in a government official's belief in whether his actions comport with the federal Constitution? Does Davis correspond with the expected decision-making process of government officials?
    2. Is the Davis Court's refusal to consider the state regulation for purposes of determining immunity necessary to protect state and local officials from liability for unforeseeable constitutional violations? Is it consistent with the Wood v. Strickland definition of the objective tier of the qualified immunity?
    3. Should a state regulation be germane to whether the federal constitutional right was clearly established? Is the state regulation relevant to whether the state officials knew or should have known of the federal constitutional right as well as whether the officials knew or should have known that their conduct violated the Constitution?
  9. Does Davis preclude a state or local official from offering evidence that state regulations authorize or do not proscribe her conduct in order to support a claim to qualified immunity?
    1. In Roska v. Peterson At LexisNexis., 328 F. 3d 1230, 1251-53 (10th Cir. 2003), the court of appeals explained the salience of state law to a government official’s entitlement to qualified immunity:
      Once the district court determines that the right at issue was “clearly established,” it becomes defendant’s burden to prove that her conduct was nonetheless objectively reasonable… .

      In considering the “objective legal reasonableness” of the state officer’s actions, one relevant factor is whether defendant relied on a state statute, regulation, or official policy that explicitly sanctioned the conduct in question. Of course, an officer’s reliance on an authorizing statute does not render the conduct per se reasonable. Rather, “the existence of a statute or ordinance authorizing particular conduct is a factor which militates in favor of the conclusion that a reasonable official would find that conduct constitutional.”

      * * * *

      [-I]n considering the relevance of a statute under a qualified-immunity analysis, the appropriate inquiry is not whether a reasonable state officer could have concluded that the statute authorized the unconstitutional conduct in question. Rather, a court must consider whether reliance on the statute rendered the officer’s conduct “objectively reasonable,” considering such factors a: (1) the degree of specificity with which the statute authorized the conduct in question; (2) whether the officer in fact complied with the statute; (3) whether the statute has fallen into desuetude; and (4) whether the officer could have reasonably concluded that the statute was constitutional.

      See also Vives v. City of New York At LexisNexis., 405 F.3d 115 (2d Cir. 2004) (for purposes of qualified immunity, state officials are entitled to rely upon presumptively valid state statute unless and until statute is explicitly held unconstitutional except where law is so grossly and flagrantly unconstitutional that person of reasonable prudence would be aware of its flaws.)

    2. In Wilson v. Layne At LexisNexis., 526 U.S. 603, 617 (1999), the Supreme Court relied in part on internal policies to hold that police officers were immune for inviting representatives of the media to accompany them in executing arrest warrants in private homes:
      [I]mportant to our conclusion was the reliance by the United States marshals in this case on a Marshal’s Service ride-along policy which explicitly contemplated that media who engaged in ride-alongs might enter private homes with their cameras as part of fugitive apprehension arrests. The Montgomery County Sheriff’s Department also at this time had a ride-along program that did not explicitly prohibit media entry into private homes… Such a policy, of course, could not make reasonable a belief that was contrary to a decided body of case law. But here the state of the law as to third parties accompanying police on home entries was at best undeveloped, and it was not unreasonable for law enforcement officers to look and rely on their formal ride-along policies.
      May plaintiff rely upon internal policies to support the argument that the right in issue was clearly established? Will plaintiff even have the opportunity to discover such policies under the Court’s immunity jurisprudence?
  10. In Groh v. Ramirez At LexisNexis.,540 U.S. 551(2004), the Supreme Court affirmed denial of qualified immunity to an agent of the Bureau of Alcohol, Tobacco and Firearms who executed a warrant that failed to include the identity of the items to be seized that were set forth in the probable cause affidavit provided to the issuing magistrate. In support of its finding that no reasonable official could have believed the warrant to be valid, the Court noted that “an ATF directive in force at the time of this search warned: 'Special agents are liable if they exceed their authority while executing a search warrant and must be sure that a search warrant is sufficient on its face even when issued by a magistrate.’” Id. at *24. In a footnote, however, the Court cautioned:
    We do not suggest that an official is deprived of qualified immunity whenever he violates an internal guideline. We refer to the ATF Order only to underscore that petitioner should have known that he should not execute a patently defective warrant.
    Id. See also Hope v. Pelzer At LexisNexis., 536 U.S. 730-44 (2002)(finding Alabama Department of Corrections regulation limiting conditions under which prisoner may be handcuffed to hitching post as sanction for refusing to work relevant to whether prior cases afforded fair warning that conduct violated Constitution); Anaya v. Crossroads Managed Care Systems, Inc. At LexisNexis. 195 F.3d 584, 595 (10th Cir. 1999) (“[W]hile we do not look to state law in determining the scope of federal rights, thefact that the Colorado Supreme Court and legislature limited the power of the police over the intoxicated in precisely the manner the Fourth Amendment would limit such power is indicative of the degree to which the Fourth Amendment limit was established.”)


483 U.S. 635 (1987) Anderson v. Creighton


Justice Scalia delivered the opinion of the Court.

The question presented is whether a federal law enforcement officer who participates in a search that violates the Fourth Amendment may be held personally liable for money damages if a reasonable officer could have believed that the search comported with the Fourth Amendment.


Petitioner Russell Anderson is an agent of the Federal Bureau of Investigation. On November 11, 1983, Anderson and other state and federal law enforcement officers conducted a warrantless search of the home of respondents, the Creighton family. The search was conducted because Anderson believed that Vadaain Dixon, a man suspected of a bank robbery committed earlier that day, might be found there. He was not.

The Creightons later filed suit against Anderson in a Minnesota state court, asserting among other things a claim for money damages under the Fourth Amendment, see Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388 (1971). After removing the suit to Federal District Court, Anderson filed a motion to dismiss or for summary judgment, arguing that the Bivens claim was barred by Anderson’s qualified immunity from civil damages liability. See Harlow v. Fitzgerald , 457 U.S. 800 (1982). Before any discovery took place, the District Court granted summary judgment on the ground that the search was lawful, holding that the undisputed facts revealed that Anderson had had probable cause to search the Creighton’s home and that his failure to obtain a warrant was justified by the presence of exigent circumstances. App. to Pet. for Cert. 23a-25a.

The Creightons appealed to the Court of Appeals for the Eighth Circuit, which reversed. Creighton v. St. Paul, 766 F.2d 1269 (1985). The Court of Appeals held that the issue of the lawfulness of the search could not properly be decided on summary judgment, because unresolved factual disputes made it impossible to determine as a matter of law that the warrantless search had been supported by probable cause and exigent circumstances. Id., at 1272-1276. The Court of Appeals also held that Anderson was not entitled to summary judgment on qualified immunity grounds, since the right Anderson was alleged to have violated — the right of persons to be protected from warrantless searches of their home unless the searching officers have probable cause and there are exigent circumstances — was clearly established. Ibid.

Anderson filed a petition for certiorari, arguing that the Court of Appeals erred by refusing to consider his argument that he was entitled to summary judgment on qualified immunity grounds if he could establish as a matter of law that a reasonable officer could have believed the search to be lawful. We granted the petition, 478 U.S. 1003 (1986), to consider that important question.


When government officials abuse their offices, “action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald , 457 U.S., at 814. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Ibid. Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. See, e. g., Malley v. Briggs At LexisNexis. , 475 U.S. 335, 341 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”); id., at 344-345 (police officers applying for warrants are immune if a reasonable officer could have believed that there was probable cause to support the application); Mitchell v. Forsyth , 472 U.S. 511, 528 (1985) (officials are immune unless “the lawclearly proscribed the actions” they took); Davis v. Scherer , 468 U.S. 183, 191 (1984); id., at 198 (Brennan, J., concurring in part and dissenting in part); Harlow v. Fitzgerald , supra, at 819. Cf., e. g., Procunier v. Navarette , 434 U.S. 555, 562 (1978). Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action, Harlow, 457 U.S., at 819, assessed in light of the legal rules that were “clearly established” at the time it was taken, id., at 818.

The operation of this standard, however, depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Harlow would be transformed from a guarantee of immunity into a rule of pleading. Such an approach, in sum, would destroy “the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties,” by making it impossible for officials “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis, supra at 195.5Footnote. It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell, supra, at 535, n. 12; but it is to say that in the light of pre-existing law the unlawfulness must be apparent. See, e. g., Malley, supra, at 344-345; Mitchell, supra, at 528; Davis, supra, at 191, 195.

Anderson contends that the Court of Appeals misapplied these principles. We agree. The Court of Appeals’ brief discussion of qualified immunity consisted of little more than an assertion that a general right Anderson was alleged to have violated — the right to be free from warrantless searches of one’s home unless the searching officers have probable cause and there are exigent circumstances — was clearly established. The Court of Appeals specifically refused to consider the argument that it was not clearly established that the circumstances with which Anderson was confronted did not constitute probable cause and exigent circumstances. The previous discussion should make clear that this refusal was erroneous. It simply does not follow immediately from the conclusion that it was firmly established that warrantless searches not supported by probable cause and exigent circumstances violate the Fourth Amendment that Anderson’s search was objectively legally unreasonable. We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials — like other officials who act in ways they reasonably believe to be lawful — should not be held personally liable. See Malley, supra, at 344-345. The same is true of their conclusions regarding exigent circumstances.

It follows from what we have said that the determination whether it was objectively legally reasonable to conclude that a given search was supported by probable cause or exigent circumstances will often require examination of the information possessed by the searching officials. But contrary to the Creightons’ assertion, this does not reintroduce into qualified immunity analysis the inquiry into officials’ subjective intent that Harlow sought to minimize. See Harlow, 457 U.S., at 815-820. The relevant question in this case, for example, is the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. Anderson’s subjective beliefs about the search are irrelevant.

The principles of qualified immunity that we reaffirm today require that Anderson be permitted to argue that he is entitled to summary judgment on the ground that, in light of the clearly established principles governing warrantless searches, he could, as a matter of law, reasonably have believed that the search of the Creightons’ home was lawful.


* * * * *

The Creightons argue that it is inappropriate to give officials alleged to have violated the Fourth Amendment — and thus necessarily to have unreasonably searched or seized — the protection of a qualified immunity intended only to protect reasonable official action. It is not possible, that is, to say that one “reasonably” acted unreasonably. The short answer to this argument is that it is foreclosed by the fact that we have previously extended qualified immunity to officials who were alleged to have violated the Fourth Amendment. See Malley At LexisNexis. , supra (police officers alleged to have caused an unconstitutional arrest); Mitchell v. Forsyth , 472 U.S. 511 (1985) (officials alleged to have conducted warrantless wiretaps). Even if that were not so, however, we would still find the argument unpersuasive. Its surface appeal is attributable to the circumstance that the Fourth Amendment’s guarantees have been expressed in terms of “unreasonable” searches and seizures. Had an equally serviceable term, such as “undue” searches and seizures been employed, what might be termed the “reasonably unreasonable” argument against application of Harlow to the Fourth Amendment would not be available — just as it would be available against application of Harlow to the Fifth Amendment if the term “reasonable process of law” had been employed there. The fact is that, regardless of the terminology used, the precise content of most of the Constitution’s civil-liberties guarantees rests upon an assessment of what accommodation between governmental need and individual freedom is reasonable, so that the Creightons’ objection, if it has any substance, applies to the application of Harlow generally. We have frequently observed, and our many cases on the point amply demonstrate, the difficulty of determining whether particular searches or seizures comport with the Fourth Amendment. See, e. g., Malley, supra, at 341. Law enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable should no more be held personally liable in damages than should officials making analogous determinations in other areas of law.

* * * * *

For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.6Footnote.

It is so ordered.

Justice Stevens, with whom Justice Brennan and Justice Marshall join, dissenting.

* * * * *

Concern for the depletion and diversion of public officials’ energies led the Court in Harlow to abolish the doctrine that an official would be deprived of immunity on summary judgment if the plaintiff alleged that the official had acted with malicious intent to deprive his constitutional rights. See, e. g., Wood v. Strickland , 420 U.S. 308, 322 (1975).

The Court’s decision today, however, fails to recognize that Harlow’s removal of one arrow from the plaintiff’s arsenal at the summary judgment stage did not also preclude the official from advancing a good-faith reasonableness claim at trial if the character of his conduct as established by the evidence warranted this strategy. The rule of the Harlow case, in contrast, focuses on the character of the plaintiff’s legal claim and, when properly invoked, protects the government executive from spending his time in depositions, document review, and conferences about litigation strategy. Consistently with this overriding concern to avoid “the litigation of the subjective good faith of government officials,” 457 U.S., at 816, Harlow does not allow discovery until the issue whether the official’s alleged conduct violated a clearly established constitutional right has been determined on a motion for summary judgment. Id., at 818. Harlow implicitly assumed that many immunity issues could be determined as a matter of law before the parties had exchanged depositions, answers to interrogatories, and admissions.3Footnote.

* * * * *

The Court errs by treating a denial of immunity for failure to satisfy the Harlow standard as necessarily tantamount to a ruling that the defendants are exposed to damages liability for their every violation of the Fourth Amendment. Such a denial would not necessarily foreclose an affirmative defense based on the Second Circuit’s thesis in Bivens that an officer may not be liable if his conduct complied with a lesser standard of reasonableness than the constitutional standard which it violated. The Court’s failure to recognize that federal agents may retain a partial shield from damages liability, although not necessarily from pretrial and trial proceedings, leads it to the erroneous conclusion that petitioner must have Harlow immunity or else none at all save the Fourth Amendment itself.

In Part III, I explain why the latter alternative is appropriate. For now, I assert the more limited proposition that the Court of Appeals quite correctly rejected Anderson’s claim that he is entitled to immunity under Harlow. Harlow does not speak to the extent, if any, of an official’s insulation from monetary liability when the official concedes that the constitutional right he is charged with violating was deeply etched in our jurisprudence, but argues that he reasonably believed that his particular actions comported with the constitutional command.

* * * * *

The Court of Appeals also was correct in rejecting petitioner’s argument based on the holding in Harlow that the qualified-immunity issue ought to be resolved on a motion for summary judgment before any discovery has taken place. 457 U.S., at 818-819.12Footnote. The Court of Appeals rejected this argument because it was convinced that the rule of law was clear. It also could have rejected the argument on an equally persuasive ground — namely, that the Harlow requirement concerning clearly established law applies to the rule on which the plaintiff relies, and that there was no doubt about the proposition that a warrantless entry into a home without probable cause is always unlawful. The court does not even reach the exigent-circumstances inquiry unless and until the defendant has shown probable cause and is trying to establish that the search was legal notwithstanding the failure of the police to obtain a warrant. Thus, if we assume that the Court of Appeals was correct in its conclusion that probable cause had not been established, it was also correct in rejecting petitioner’s claim to Harlow immunity, either because the exigent-circumstances exception to the warrant requirement was clearly established, or because a warrantless entry into a home without probable cause is always unlawful whether or not exigent circumstances are present.

* * * * *

The good-faith argument advanced by petitioner might support a judgment in his favor after there has been a full examination of the facts, but it is not the kind of claim to immunity, based on the tentativeness or nonexistence of the constitutional rule allegedly violated by the officer, that we accepted in Harlow or in Mitchell.


Although the question does not appear to have been argued in, or decided by, the Court of Appeals, this Court has decided to apply a double standard of reasonableness in damages actions against federal agents who are alleged to have violated an innocent citizen’s Fourth Amendment rights. By double standard I mean a standard that affords a law enforcement official two layers of insulation from liability or other adverse consequence, such as suppression of evidence. Having already adopted such a double standard in applying the exclusionary rule to searches authorized by an invalid warrant, United States v. Leon At LexisNexis., 468 U.S. 897 (1984), the Court seems prepared and even anxious in this case to remove any requirement that the officer must obey the Fourth Amendment when entering a private home. I remain convinced that in a suit for damages as well as in a hearing on a motion to suppress evidence, “an official search and seizure cannot be both ‘unreasonable’ and ‘reasonable’ at the same time.” Id., at 960 (Stevens, J., dissenting).

* * * * *

Indeed, it is worth emphasizing that the probable-cause standard itself recognizes the fair leeway that law enforcement officers must have in carrying out their dangerous work. The concept of probable cause leaves room for mistakes, provided always that they are mistakes that could have been made by a reasonable officer. See 1 W. LaFave, Search and Seizure 567 (2d ed. 1987).

* * * * *

Thus, until now the Court has not found intolerable the use of a probable-cause standard to protect the police officer from exposure to liability simply because his reasonable conduct is subsequently shown to have been mistaken. Today, however, the Court counts the law enforcement interest twice and the individual’s privacy interest only once.

The Court’s double-counting approach reflects understandable sympathy for the plight of the officer and an overriding interest in unfettered law enforcement. It ascribes a far lesser importance to the privacy interest of innocent citizens than did the Framers of the Fourth Amendment. The importance of that interest and the possible magnitude of its invasion are both illustrated by the facts of this case. The home of an innocent family was invaded by several officers without a warrant, without the owner’s consent, with a substantial show of force, and with blunt expressions of disrespect for the law and for the rights of the family members. As the case comes to us, we must assume that the intrusion violated the Fourth Amendment. See Steagald v. United States At LexisNexis., 451 U.S. 204, 211 (1981). Proceeding on that assumption, I see no reason why the family’s interest in the security of its own home should be accorded a lesser weight than the Government’s interest in carrying out an invasion that was unlawful. Arguably, if the Government considers it important not to discourage such conduct, it should provide indemnity to its officers. Preferably, however, it should furnish the kind of training for its law enforcement agents that would entirely eliminate the necessity for the Court to distinguish between the conduct that a competent officer considers reasonable and the conduct that the Constitution deems reasonable. “Federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law.” Butz v. Economou , 438 U.S., at 507. On the other hand, surely an innocent family should not bear the entire risk that a trial court, with the benefit of hindsight, will find that a federal agent reasonably believed that he could break into their home equipped with force and arms but without probable cause or a warrant.

* * * * *

Anderson v. Creighton Transcript Access this transcript at Lexis.

Anderson v. Creighton Briefs image


Notes on Anderson v. Creighton


  1. Did defendant Anderson allege a) that the constitutional right violated was not clearly established, or b) that even though the right was clearly established, defendant did not know and should not have known that his conduct violated the right? Does it make a difference?
  2. How close factually must the relevant precedent cases be to the facts of the Anderson case in order for the trial court to find that “a reasonable officer could have believed Anderson's warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed?”
    1. In Lassiter v. Alabama A & M University At LexisNexis., 28 F.3d 1146, 1149-50 (11th Cir. 1994)(en banc), the Eleventh Circuit set forth the principles it understood to control qualified immunity cases:
      That qualified immunity protects government actors is the usual rule; only in exceptional cases will government actors have no shield against claims made against them in their individual capacities…

      For the law to be clearly established to the point that qualified immunity does not apply, the law must earlier have been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant's place, that “what he is doing” violates federal law…

      “General propositions have little to do with the concept of qualified immunity”…”If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant.”…For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances.

      See also McVey v. Stacy At LexisNexis., 157 F.3d 271, 277 (4th Cir. 1988) (“[P]articularly in First Amendment cases, where a sophisticated balancing of interests is required to determine whether the plaintiff’s constitutional rights have been violated, only infrequently will it be 'clearly established’ that a public employee’s speech on a matter of public concern is constitutionally protected.”).
    2. In Hope v. Pelzer At LexisNexis., 536 U.S. 730 (2002), the Court reviewed the decision of the Court of Appeals for the Eleventh Circuit granting summary judgment to state prison officials who subjected Larry Hope to cruel and unusual punishment. The officials had allegedly required Hope to stand handcuffed to a hitching post for seven hours with his two hands shackled relatively close together at face level; removed Hope’s shirt causing the sun to burn his skin; afforded Hope no bathroom breaks; provided Hope water only once or twice in the seven hours; and taunted Hope about his thirst by giving water to some dogs, bringing the water cooler close to Hope, and then kicking the water cooler over, spilling the water to the ground. The court of appeals found the officials immune because the facts of the precedent cases, while analogous, were not materially similar to Hope’s situation. Finding the court of appeals had applied the wrong standard for immunity, the Supreme Court reversed:
      Officers sued in a civil action for damages under 42 U.S.C. § 1983 have the same right to fair notice as do defendants charged with the criminal offense defined in 18 U.S.C. § 242. Section 242 makes it a crime for a state official to act “willfully” and under color of law to deprive a person of rights protected by the Constitution. In United States v. Lanier At LexisNexis., 520 U.S. 259, 137 L. Ed. 2d 432, 117 S. Ct. 1219 (1997), we held that the defendant was entitled to “fair warning” that his conduct deprived his victim of a constitutional right, and that the standard for determining the adequacy of that warning was the same as the standard for determining whether a constitutional right was “clearly established” in civil litigation under § 1983.

      In Lanier, the Court of Appeals had held that the indictment did not charge an offense under § 242 because the constitutional right allegedly violated had not been identified in any earlier case involving a factual situation “‘fundamentally similar’” to the one in issue… . We reversed, explaining that the “fair warning” requirement is identical under § 242 and the qualified immunity standard. We pointed out that we had “upheld convictions under § 241 or § 242 despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” Id., at 269. We explained:

      “This is not to say, of course, that the single warning standard points to a single level of specificity sufficient in every instance. In some circumstances, as when an earlier case expressly leaves open whether a general rule applies to the particular type of conduct at issue, a very high degree of prior factual particularity may be necessary. But general statements of the law are not inherently incapable of giving fair and clear warning, and in other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful,’ Anderson, supra, at 640.” 74 F.3d 266 at 270-271 (citation omitted).
      Our opinion in Lanier thus makes clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances. Indeed, in Lanier, we expressly rejected a requirement that previous cases be “fundamentally similar.” Although earlier cases involving “fundamentally similar” facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding. The same is true of cases with “materially similar” facts. Accordingly, pursuant to Lanier, the salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional.
      Hope, 536 U.S. at 739-41. See also DeBoer v. Pennington At LexisNexis., 206 F.3d 857, 864-65 (9th Cir. 2000) (“'[W]hen 'the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts’ that the action was unconstitutional, closely analogous pre-existing case law is not required’ … Thus, a constitutional right may be clearly established by common sense as well as closely analogous pre-existing case law.”). McDonald v. Haskins At LexisNexis., 966 F.2d 292, 293-95 (7th Cir. 1992). (“[T]hat no precisely analogous case exists does not defeat McDonald’s claim. It would create perverse incentives indeed if a qualified immunity defense could succeed against those types of claims that have not previously arisen because the behavior alleged is so egregious that no like case is on the books… . There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune … . because no previous case had found liability in those circumstances.”)
  3. By what standard can the trial court determine whether the facts of the relevant precedent cases proscribing warrantless searches are sufficiently analogous so that a reasonable officer could not have believed that Anderson's actions were lawful? By what standard can the trial court determine whether the facts of the relevant precedent cases proscribing warrantless searches are sufficiently distinguishable so that a reasonable officer could have believed that Anderson's actions were lawful?
  4. Does the Anderson standard accurately reflect the questions that the FBI agent considered prior to entering the Creighton's residence?

    In Savidge v. Fincannon At LexisNexis., 836 F.2d 898, 908-09 (5th Cir. 1988), the court of appeals declined to engage in narrow factual distinction of precedents in evaluating whether defendants should have known of the constitutional right to minimally adequate care and treatment for institutionalized persons:

    In this circuit, the right of civilly committed retardates to “such individual treatment as will help…them to be cured or to improve [their] mental condition” is at least as old as Wyatt v. Aderholt. In that case we also affirmed the plaintiffs' right to a “humane” and presumably safe environment. Wyatt survives Lelsz; it was certainly good law in the early 1980’s when most of the damage that the plaintiffs allege in this case took place.

    The defendants contend that Wyatt, unlike Youngberg, depends in its reasoning upon the state's participation in a formal civil commitment proceeding. This observation, though arguably correct, must not be allowed to obscure the fact that as a general matter the duty to provide institutionalized retardates with constitutionally adequate care was firmly established in this circuit by 1980. We reject any approach to immunity doctrine that requires us to imagine the defendants saying to themselves, “We can safely give Jonathan Savidge inadequate treatment; he was not committed to the FWSS through formal judicial proceedings and so the rationale in Wyatt may not apply to him.” We simply do not envision reasonable doctors and administrators calibrating their responsibilities to each child on the basis of such narrow distinctions. If the allegations in the plaintiff's complaint are true, and they must be accepted as true, the individual defendants should have known that they were treating Jonathan Savidge in an unconstitutional manner.

  5. Justice Stevens' dissenting opinion in Anderson proposes that the qualified immunity defense is unavailable where the plaintiff must prove an unreasonable search and seizure to establish a Fourth Amendment violation. While the majority rejects Justice Stevens' assertion that “unreasonableness” for Fourth Amendment purposes is the same as a negligence standard, should the qualified immunity defense be available at trial where plaintiff must prove defendant's negligence, recklessness or intent to establish a constitutional violation?
    1. In Goodwin v. Circuit Court of St. Louis CountyAt LexisNexis., 729 F.2d 541, 545-6 (8th Cir. 1984), the court of appeals affirmed the district court’s refusal to instruct the jury on the qualified immunity:
      We…hold that the defense of “good faith” or qualified immunity is not available in this case. By definition, there can be no liability in such an action unless the plaintiff shows that the defendant intentionally discriminated against her because of her sex…If the jury finds that intentional discrimination has occurred, and if, as in this case, the evidence is sufficient to support that finding, “good faith” on the part of the defendant is logically excluded.
      See also, Miller v. SolemAt LexisNexis., 728 F.2d 1020, 1025 (8th Cir.)(1984) (“if an officer recklessly disregards an inmate’s need for safety he certainly cannot maintain an objective good faith immunity defense.”); Gary S. Gildin, The Standard of Culpability in Section 1983 and Bivens Actions: The Prima Facie Case, Qualified Immunity and the Constitution, 11 Hofstra L. Rev. 557 (1983).
    2. In Saucier v. Katz At LexisNexis., 533 U.S. 194 (2001), the Court reversed the court of appeals’ ruling that the qualified immunity test is identical to the standard governing the merits of claims of excessive force under the Fourth Amendment:
      In Graham, we held that claims of excessive force in the context of arrests or investigatory stops should be analyzed under the Fourth Amendment’s “objective reasonableness standard,” not under substantive due process principles. Because “police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation,” the reasonableness of the officer’s belief as to the appropriate level of force should be judged from that on-scene perspective. We set out a test that cautioned against the “20/20 vision of hindsight” in favor of deference to the judgment of reasonable officers on the scene. Graham sets forth a list of factors relevant to the merits of the constitutional excessive force claim, “requiring careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed.

      The qualified immunity inquiry, on the other hand, has a further dimension. The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.

      Graham does not always give a clear answer as to whether a particular application of force will be deemed excessive by the courts. This is the nature of a test which must accommodate limitless factual circumstances. This reality serves to refute respondent’s claimed distinction between excessive force and other Fourth Amendment contexts; in both spheres the law must be elaborated from case to case. Qualified immunity operates in this case, then, just as it does in others, to protect officers from the sometimes “hazy border between excessive and acceptable force,” and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful ….

      The deference owed officers facing suits for alleged excessive force is not different in some qualitative respect from the probable cause inquiry in Anderson. Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and in those situations courts will not hold that they have violated the Constitution. Yet, even if a court were to hold that the officer violated the Fourth Amendment by conducting an unreasonable, warrantless search, Anderson still operates to grant officers immunity for reasonable mistakes as to the legality of their actions. The same analysis is applicable in excessive force cases, where in addition to the deference officers receive on the underlying constitutional claim, qualified immunity can apply in the event the mistaken belief was reasonable.

    3. In Beard v. Mitchell At LexisNexis., 604 F.2d 485, 496 (7th Cir. 1979), the court of appeals held the trial court’s instruction that plaintiff must prove recklessness to prevail does not duplicate defendant’s burden of proving the qualified immunity because defendant “was entitled to prove that his belief in the legality of his acts was reasonable but was not required to prove that his conduct was reasonable.” See also McCann, The Interrelationship of Immunity and the Prima Facie Case in Section 1983 and Bivens Actions, 21 Gonzaga L. Rev. 117, 139 (1985/86) (“[T]here is a distinction between the negligence standard in the prima facie case, which analyzes the reasonableness of the defendant’s conduct with respect to the plaintiff, and Harlow’s objective immunity standard, which addresses the reasonableness of the defendant’s knowledge of constitutional rights.”). Is the distinction drawn in Beard v. Mitchell a viable one? Could it ever be reasonable for an official to believe his conduct was proper yet be unreasonable to act on that belief? May the immunity defense be distinguished on the ground that it addresses only the state official's knowledge that his conduct violated the Constitution and not the reasonableness of his conduct under all the circumstances? Would a jury be able to understand and apply this distinction? Would the evidence that a jury would find relevant in determining whether defendant acted negligently be different than the evidence it would consider apposite to whether defendant had reason to know his actions were unconstitutional? See also Llanguo v. Mingey At LexisNexis., 763 F.2d 1560, 1569 (7th Cir. 1985) (en banc) (“to go on and instruct the jury further that even if the police acted without probable cause they should be exonerated if they reasonably (though erroneously) believed that they were acting reasonably is to confuse the jury and give the defendants two bites of the apple.”); Balcerzak, Qualified Immunity for Government Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation At LexisNexis., 95 Yale L.J. 126, 144-47 (1985).
    4. Some courts have attempted to reconcile the qualified immunity defense with plaintiff's burden of proving culpability in its prima facie case by holding the immunity issue is a question of law for the judge to decide. In Warren v. City of Lincoln, Nebraska At LexisNexis. , 816 F.2d 1254, 1262 (8th Cir. 1987), the court described the roles of the judge and jury as follows:
      On remand, the jury should initially determine under proper instructions whether the arrest of Warren was a pretext employed to gather evidence of unrelated crimes. If the jury determines that it was a pretext, then the district court should determine whether the law prohibiting pretextual arrests was clearly established in 1985. If the jury finds that the arrest was not pretextual but rather a lawful arrest pursuant to a traffic warrant, then it should determine whether Warren was detained beyond the time necessary to process the traffic offense for questioning on an unrelated matter. If the jury determines that he was so detained, then the district court should determine whether the law prohibiting such a detention was clearly established in 1985. The jury should finally determine whether the officers continued to question Warren after he requested counsel. If it answers this question affirmatively, then the district court should determine whether the law prohibiting continued custodial questioning after request for counsel was clearly established in 1985.
  6. The Anderson Court advised that prior to discovery, the trial court should determine whether the precise conduct alleged to be unconstitutional is action that a reasonable officer could have believed lawful. What is the record to which the trial court will refer in making this ruling? Can the trial court decide the issue if plaintiffs limit their Complaint to the minimal notice pleading requirements of Federal Rule of Civil Procedure 8(a)?
    1. In Gomez v. Toledo At LexisNexis. , 446 U.S. 635 (1980), the Supreme Court held qualified immunity is an affirmative defense that must be pleaded by the defendant. The Court relied on the fact that neither the language nor the legislative history of Section 1983 requires plaintiff to allege anything beyond a constitutional violation caused by a person acting under color of state law to state a claim for relief. The Court further reasoned that assigning defendant the burden of pleading the immunity is consistent with the general treatment of affirmative defenses in the federal system as well as mandated by the nature of the immunity defense:
      [W]hether immunity has been established depends on facts peculiarly within the knowledge and control of the defendant…The applicable test focuses not only on whether the official has an objectively reasonable basis for that belief, but also on whether “[t]he official himself [is] acting sincerely and with a belief that he is doing right.” (Citation omitted) There may be no way for a plaintiff to know in advance whether the official has such a belief or, indeed, whether he will ever claim that he does. The existence of subjective belief will frequently turn on factors which a plaintiff cannot reasonably be expected to know. For example, the official's belief may be based on state or local law, advice of counsel, administrative practice, or some other factor of which the official alone is aware. To impose the pleading burden on the plaintiff would ignore this elementary fact and be contrary to the established practice in analogous areas of the law.
      Id. at 641. Do Harlow and Anderson implicitly overrule Gomez?
    2. The United States Court of Appeals for the Fifth Circuit modified the normal rules of pleading under the Federal Rules of Civil Procedure to effectuate the Supreme Court's immunity decisions:
      Where, as here, plaintiff's complaint alleges in broad, indefinite and conclusory terms that two government officials, each having the status entitling each to claim immunity has, in his official capacity, violated the plaintiffs' rights, the groundwork is laid for the disruption of the official's duties, and frustration of the protection and policies underlying the immunity doctrine.

      What is a federal trial judge to do? One thing he may not do: face it as just another lawsuit in which the notice pleading's liberal policy of F.R.Civ.P. 8 counts on pretrial discovery to ascertain the factual basis for the claim, and as here, a defense. Allowing pretrial depositions, especially those taken adversely of the governmental official to ferret all of his actions and the reasons therefor, either for the purpose of being able to plead more specifically, or for use in the prospective trial would defeat and frustrate the function and purpose of the absolute and qualified immunity ostensibly conferred on the official.

      The public goals sought by official immunity are not procedural. Indeed, they go to very fundamental substantive objectives. To the extent that F.R.Civ.P. 8 and the practices under it present any conflict, the trial court must find a way to adapt its procedures to assure full effectuation of this substantive right, since the Enabling Act provides that the rules shall not abridge, enlarge, or modify any substantive right.

      In addition, use of liberal discovery to establish the basis of a claim is directly at odds with the Court's direction in Harlow that government officials entitled to immunity be freed from the burdens, the stress, the anxieties and the diversions of pretrial preparations.

      Actually, we, and other courts, have tightened the application of Rule 8 where the very nature of the litigation compels it. In the now familiar cases invoking 42 U.S.C. §1983 we consistently require the claimant to state specific facts, not merely conclusory allegations…

      Probably of greatest importance is that the burden of being able to ascertain what the real facts are in order to determine the defense of immunity is placed squarely on the district judge. The trial judge may not wait on motions or other actions by the parties or counsel. Fortunately, trial judges have the tools to carry out this mission.

      Foremost is the recent amendments to F.R.Civ.P. 11.

      * * * * *

      It bears the strongest emphasis that under amended Rule 11 an attorney's signature on a document certifies that, “to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law,…” F.R.Civ.P 11, advisory committee note. (emphasis supplied). This means that in a case ostensibly raising the probable question of immunity, counsel for the plaintiff is affirming that, after reasonable inquiry, he believes in good faith that the defendant official cannot successfully show he has the defense of immunity. This means also that having that good faith belief, he is able to state with some particularity what those facts are.

      The trial judge has several means to determine the specific facts on which the plaintiff relies, from which the judge can draw the legal conclusion on the availability of the immunity defense. First, the judge can, and must, demand full compliance with Rule 11.

      In order to ensure sufficient specificity, district courts have a ready tool in the F.R.Civ.P 12(e) motion for more definite statement. Once a complaint against a defendant state legislator, judge, or prosecutor (or similar officer) adequately raises the likely issue of immunity—qualified or absolute—the district court should on its own require of the plaintiff a detailed complaint alleging with particularity all material facts on which he contends he will establish his right to recovery, which will include detailed facts supporting the contention that the plea of immunity cannot be sustained.

      Elliot v. Perez At LexisNexis. , 751 F.2d 1472, 1479-82 (5th Cir. 1985). See also Siegert v. Gilley At LexisNexis. , 500 U.S. 226, 236 (1991)(Kennedy, J., concurring)(“The heightened pleading standard is a departure from the usual pleading requirements of Federal Rule of Civil Procedure 8 and 9(b), and departs also from the normal standard for summary judgment under Rule 56. But avoidance of disruptive discovery is one of the very purposes for the official immunity doctrine, and it is no answer to say that the plaintiff has not yet had the opportunity to engage in discovery. The substantive defense of immunity controls.”)
    3. In Leatherman v. Tarrant County Narcotic Intelligence and Coordination Unit, 507 U.S. 163 (1993), the Supreme Court reversed the Fifth Circuit's imposition of a fact pleading requirement for Section 1983 claims against municipalities:
      We think that it is impossible to square the “heightened pleading standard” applied by the Fifth Circuit with the liberal system of “notice pleading” set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only a “short and plain statement of the claim showing that the pleader is entitled to relief.”…

      Rule 9(b) does impose a particularity requirement in two specific instances. It provides that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Thus the Federal Rules do address in Rule 9(b) the question of the need for particularity in pleading certain actions, but do not include among the enumerated actions any reference to complaints alleging municipal liability under §1983. Expressio unius exclusio alterius.

      * * * * *

      Perhaps if Rules 8 and 9 were re-written today, claims against municipalities under §1983 might be subjected to the added specificity requirement of Rule 9(b). But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation. In the absence of such an amendment, federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.

      507 U.S. at 168-69. The Court expressly noted that because freedom from municipal liability does not equate to immunity from suit, “[w]e thus have no occasion to consider whether our qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials.” Id. at 166-67.
    4. In Schultea v. Wood At LexisNexis., 47 F.3d 1427, 1432-33 (5th Cir. 1995)(en banc), the Fifth Circuit considered whether its heightened pleading requirement survived Leatherman:
      In 1993, the Court in Leatherman concluded that the heightened pleading requirement of Elliott could not be applied in a §1983 suit against a municipality, reserving the question of whether it might survive in cases against public officials. We need not answer that question today because henceforth we do not rely upon Rule 9’s particularity requirements for the simple reason that it is unnecessary to do so. A practical working marriage of pleading and qualified immunity is achievable without looking to Rule 9. We look instead to Rule 7.

      Qualified immunity's limits upon access to the discovery process create a new and large role for the Rule 7(a) reply, a vestige of pre-1938 common law and code pleading expressly preserved in the Civil Rules…

      * * * * *

      When a public official pleads the affirmative defense of qualified immunity in his answer, the district court may, on the official's motion or on its own, require the plaintiff to reply to that defense in detail. By definition, the reply must be tailored to the assertion of qualified immunity and fairly engage its allegations. A defendant has an incentive to plead his defense with some particularity because it has the practical effect of requiring particularity in the reply.

      The Federal Rules of Civil Procedure permit the use of Rule 7 in this manner. The only Civil Rule that governs the content of Rule 7 replies is Rule 8(e)(1), which demands that “[e]ach averment of a pleading shall be simple, concise, and direct.” We do not read Rule 8(e)(1) as a relevant limitation upon the content of a Rule 7 reply. Indeed, a party pleading fraud or mistake with particularity under Rule9(b) is also required to do so in a simple, concise, and direct manner. Nor is Rule 8(a)(2)'s “short and plain” standard a limitation on the content of a Rule 7 reply. Rule 8 applies only to the subset of pleadings that “set[ ] forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim.” Rule 8(a) does not encompass pleadings that it does not list, including Rule 7 replies. Employing the maxim that the Supreme Court used in Leatherman -- expressio unius est exclusio alterius -- we hold that because Rule 8(a) does not list Rule 7 replies, Rule 8(a)'s “short and plain” standard does not govern Rule 7 replies.

Id. at 1432-33.


D. Interlocutory Appeal of the Denial of Immunity



472 U.S. 511 (1985) Mitchell v. Forsyth


White, J., delivered the opinion of the Court, in which Blackmun, J., joined; in Parts I, III, and IV of which Burger, C. J., and O'Connor, J., joined; and in Parts I and II of which Brennan and Marshall, JJ., joined. Burger, C. J., filed an opinion concurring in part, O'Connor, J., filed an opinion concurring in part, in which Burger, C. J., joined. Stevens, J., filed an opinion concurring in the judgment. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined. Powell, J., took no part in the decision of this case. Rehnquist, J., took no part in the consideration or decision of this case.

Justice White delivered the opinion of the Court.

This is a suit for damages stemming from a warrantless wiretap authorized by petitioner, a former Attorney General of the United States. The case presents three issues: whether the Attorney General is absolutely immune from suit for actions undertaken in the interest of national security; if not, whether the District Court’s finding that petitioner is not immune from suit for his actions under the qualified immunity standard of Harlow v. Fitzgerald, 457 U.S. 800 (1982), is appealable; and, if so, whether the District Court’s ruling on qualified immunity was correct.


In 1970, the Federal Bureau of Investigation learned that members of an antiwar group known as the East Coast Conspiracy to Save Lives (ECCSL) had made plans to blow up heating tunnels linking federal office buildings in Washington, D. C., and had also discussed the possibility of kidnaping then National Security Adviser Henry Kissinger. On November 6, 1970, acting on the basis of this information, the then Attorney General John Mitchell authorized a warrantless wiretap on the telephone of William Davidon, a Haverford College physics professor who was a member of the group. According to the Attorney General, the purpose of the wiretap was the gathering of intelligence in the interest of national security.

The FBI installed the tap in late November 1970, and it stayed in place until January 6, 1971. During that time, the Government intercepted three conversations between Davidon and respondent Keith Forsyth. The record before us does not suggest that the intercepted conversations, which appear to be innocuous, were ever used against Forsyth in any way. Forsyth learned of the wiretap in 1972, when, as a criminal defendant facing unrelated charges, he moved under 18 U. S. C. § 3504 for disclosure by the Government of any electronic surveillance to which he had been subjected.

* * * * *

Shortly thereafter, this Court ruled that the Fourth Amendment does not permit the use of warrantless wiretaps in cases involving domestic threats to the national security. United States v. United States District Court At LexisNexis. , 407 U.S. 297 (1972) (Keith). In the wake of the Keith decision, Forsyth filed this lawsuit against John Mitchell and several other defendants in the United States District Court for the Eastern District of Pennsylvania. Forsyth alleged that the surveillance to which he had been subjected violated both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. §§ 2510-2520, which sets forth comprehensive standards governing the use of wiretaps and electronic surveillance by both governmental and private agents. He asserted that both the constitutional and statutory provisions provided him with a private right of action; he sought compensatory, statutory, and punitive damages.

Discovery and related preliminary proceedings dragged on for the next five-and-a-half years. By early 1978, both Forsyth and Mitchell had submitted motions for summary judgment on which the District Court was prepared to rule. Forsyth contended that the uncontested facts established that the wiretap was illegal and that Mitchell and the other defendants were not immune from liability; Mitchell contended that the decision in Keith should not be applied retroactively to the wiretap authorized in 1970 and that he was entitled either to absolute prosecutorial immunity from suit under the rule of Imbler v. Pachtman At LexisNexis. , 424 U.S. 409 (1976), or to qualified or “good faith” immunity under the doctrine of Wood v. Strickland, 420 U.S. 308 (1975).

* * * * *

[T]he District Court held a hearing on the question whether the wiretap served a prosecutorial purpose. On the basis of the hearing and the evidence in the record, the court concluded that Mitchell's authorization of the wiretap was not intended to facilitate any prosecutorial decision or further a criminal investigation. Mitchell himself had disavowed any such intention and insisted that the only reason for the wiretap was to gather intelligence needed for national security purposes. Taking Mitchell at his word in this regard, the court held to its conclusion that he was not entitled to absolute prosecutorial immunity.

* * * * *

[T]he District Court held a hearing on the question whether the wiretap served a prosecutorial purpose. On the basis of the hearing and the evidence in the record, the court concluded that Mitchell’s authorization of the wiretap was not intended to facilitate any prosecutorial decision or further a criminal investigation. Mitchell himself had disavowed any such intention and insisted that the only reason for the wiretap was to gather intelligence needed for national security purposes. Taking Mitchell at his word in this regard, the court held to its conclusion that he was not entitled to absolute prosecutorial immunity.

* * * * *

The District Court [also] rejected Mitchell’s argument that under [the Harlow v. Fitzgerald] standard he should be held immune from suit for warrantless national security wiretaps authorized before this Court’s decision in Keith: that decision was merely a logical extension of general Fourth Amendment principles and in particular of the ruling in Katz v. United States At LexisNexis., 389 U.S. 347 (1967), in which the Court held for the first time that electronic surveillance unaccompanied by physical trespass constituted a search subject to the Fourth Amendment’s warrant requirement. Mitchell and the Justice Department, the court suggested, had chosen to “gamble” on the possibility that this Court would create an exception to the warrant requirement if presented with a case involving national security. Having lost the gamble, Mitchell was not entitled to complain of the consequences.2Footnote. The court therefore denied Mitchell’s motion for summary judgment, granted Forsyth’s motion for summary judgment on the issue of liability, and scheduled further proceedings on the issue of damages. Forsyth v. Kleindienst, 551 F.Supp. 1247 (1982).

Mitchell…appealed, contending that the District Court had erred in its rulings on both absolute immunity and qualified immunity. Holding that it possessed jurisdiction to decide the denial of absolute immunity issue despite the fact that it was a pretrial order and arguably not a final judgment, the Court of Appeals rejected Mitchell’s argument that the national security functions of the Attorney General entitled him to absolute immunity under Imbler v. Pachtman or otherwise. With respect to the denial of qualified immunity, the Court of Appeals held that the District Court’s order was not appealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).

The question whether the Attorney General is absolutely immune from suit for acts performed in the exercise of his national security functions is an important one that we have hitherto left unanswered. See Halperin v. Kissinger At LexisNexis., 196 U. S. App. D. C. 285, 606 F.2d 1192 (1979), aff’d by an equally divided Court, 452 U.S. 713 (1981). Moreover, the issue of the appealability before final judgment of orders denying immunity under the objective standard of Harlow v. Fitzgerald is one that has divided the Courts of Appeals.5Footnote. Finally, the District Court’s decision — left standing by the Court of Appeals — that Mitchell’s actions violated clearly established law is contrary to the rulings of the District of Columbia Circuit in Sinclair v. Kleindienst, 207 U. S. App. D. C. 155, 645 F.2d 1080 (1981), and Zweibon v. Mitchell, 231 U. S. App. D. C. 398, 720 F.2d 162 (1983), cert. denied, 469 U.S. 880 (1984). We granted certiorari to address these issues, 469 U.S. 929 (1984).


We first address Mitchell’s claim that the Attorney General’s actions in furtherance of the national security should be shielded from scrutiny in civil damages actions by an absolute immunity similar to that afforded the President, see Nixon v. Fitzgerald At LexisNexis. , 457 U.S. 731  (1982), judges, prosecutors, witnesses, and officials performing “quasi-judicial” functions, see Briscoe v. LaHue At LexisNexis. , 460 U.S. 325 (1983); Butz v. Economou At LexisNexis. , 438 U.S. 478, 508-517 (1978); Stump v. Sparkman At LexisNexis. , 435 U.S. 349 (1978); Imbler v. Pachtman At LexisNexis., 424 U.S. 409 (1976), and legislators, see Dombrowski v. Eastland At LexisNexis., 387 U.S. 82 (1967); Tenney v. Brandhove At LexisNexis., 341 U.S. 367 (1951). We conclude that the Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.

Our decisions in this area leave no doubt that the Attorney General’s status as a Cabinet officer is not in itself sufficient to invest him with absolute immunity: the considerations of separation of powers that call for absolute immunity for state and federal legislators and for the President of the United States do not demand a similar immunity for Cabinet officers or other high executive officials. See Harlow v. Fitzgerald, 457 U.S. 800 (1982); Butz v. Economou, supra. Mitchell’s claim, then, must rest not on the Attorney General’s position within the Executive Branch, but on the nature of the functions he was performing in this case. See Harlow v. Fitzgerald, supra, at 810-811. Because Mitchell was not acting in a prosecutorial capacity in this case, the situations in which we have applied a functional approach to absolute immunity questions provide scant support for blanket immunization of his performance of the “national security function.”

First, in deciding whether officials performing a particular function are entitled to absolute immunity, we have generally looked for a historical or common-law basis for the immunity in question. The legislative immunity recognized in Tenney v. Brandhove At LexisNexis., supra, for example, was rooted in the long struggle in both England and America for legislative independence, a presupposition of our scheme of representative government. The immunities for judges, prosecutors, and witnesses established by our cases have firm roots in the common law. See Briscoe v. LaHue At LexisNexis., supra, at 330-336. Mitchell points to no analogous historical or common-law basis for an absolute immunity for officers carrying out tasks essential to national security.

Second, the performance of national security functions does not subject an official to the same obvious risks of entanglement in vexatious litigation as does the carrying out of the judicial or “quasi-judicial” tasks that have been the primary wellsprings of absolute immunities. The judicial process is an arena of open conflict, and in virtually every case there is, if not always a winner, at least one loser. It is inevitable that many of those who lose will pin the blame on judges, prosecutors, or witnesses and will bring suit against them in an effort to relitigate the underlying conflict. See Bradley v. Fisher At LexisNexis., 13 Wall. 335, 348 (1872). National security tasks, by contrast, are carried out in secret; open conflict and overt winners and losers are rare. Under such circumstances, it is far more likely that actual abuses will go uncovered than that fancied abuses will give rise to unfounded and burdensome litigation. Whereas the mere threat of litigation may significantly affect the fearless and independent performance of duty by actors in the judicial process, it is unlikely to have a similar effect on the Attorney General’s performance of his national security tasks.

Third, most of the officials who are entitled to absolute immunity from liability for damages are subject to other checks that help to prevent abuses of authority from going unredressed. Legislators are accountable to their constituents, see Tenney v. Brandhove, supra, at 378, and the judicial process is largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need for damages actions to prevent unjust results. Similar built-in restraints on the Attorney General’s activities in the name of national security, however, do not exist. And despite our recognition of the importance of those activities to the safety of our Nation and its democratic system of government, we cannot accept the notion that restraints are completely unnecessary. As the Court observed in Keith, the label of “national security” may cover a multitude of sins:

“National security cases … often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech… . History abundantly documents the tendency of Government — however, benevolent and benign its motives — to view with suspicion those who most fervently dispute its policies… . The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.” 407 U.S., at 313-314 At LexisNexis..

The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity.7Footnote.

We emphasize that the denial of absolute immunity will not leave the Attorney General at the mercy of litigants with frivolous and vexatious complaints. Under the standard of qualified immunity articulated in Harlow v. Fitzgerald, the Attorney General will be entitled to immunity so long as his actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S., at 818. This standard will not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the point of the Harlow standard: “Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate. …” Id., at 819. This is as true in matters of national security as in other fields of governmental action. We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law.


Although 28 U. S. C. § 1291 vests the courts of appeals with jurisdiction over appeals only from “final decisions” of the district courts, “a decision ‘final’ within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case.” Gillespie v. United States Steel Corp. At LexisNexis., 379 U.S. 148, 152 (1964). Thus, a decision of a district court is appealable if it falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp. At LexisNexis., 337 U.S., at 546.

A major characteristic of the denial or granting of a claim appealable under Cohen’s “collateral order” doctrine is that “unless it can be reviewed before [the proceedings terminate], it never can be reviewed at all.” Stack v. Boyle At LexisNexis., 342 U.S. 1, 12 (1952) (opinion of Jackson, J.); see also United States v. hollywood Motor Car Co. At LexisNexis., 458 U.S. 263, 266 (1982). When a district court has denied a defendant’s claim of right not to stand trial, on double jeopardy grounds, for example, we have consistently held the court’s decision appealable, for such a right cannot be effectively vindicated after the trial has occurred. Abney v. United States At LexisNexis., 431 U.S. 651 (1977). Thus, the denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action. See Nixon v. Fitzgerald, 457 U.S. 731 (1982); cf. Helstoski v. Meanor At LexisNexis., 442 U.S. 500 (1979).

At the heart of the issue before us is the question whether qualified immunity shares this essential attribute of absolute immunity — whether qualified immunity is in fact an entitlement not to stand trial under certain circumstances. The conception animating the qualified immunity doctrine as set forth in Harlow v. Fitzgerald, 457 U.S. 800 (1982), is that “where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’” Id., at 819, quoting Pierson v. Ray At LexisNexis. , 386 U.S. 547, 554 (1967). As the citation to Pierson v. Ray makes clear, the “consequences” with which we were concerned in Harlow are not limited to liability for money damages; they also include “the general costs of subjecting officials to the risks of trial — distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Harlow, 457 U.S., at 816. Indeed, Harlow emphasizes that even such pretrial matters as discovery are to be avoided if possible, as “[inquiries] of this kind can be peculiarly disruptive of effective government.” Id., at 817.

With these concerns in mind, the Harlow Court refashioned the qualified immunity doctrine in such a way as to “permit the resolution of many insubstantial claims on summary judgment” and to avoid “[subjecting] government officials either to the costs of trial or to the burdens of broad-reaching discovery” in cases where the legal norms the officials are alleged to have violated were not clearly established at the time. Id., at 817-818. Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. See id., at 818. Even if the plaintiff’s complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts. Harlow thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates to us that the denial of qualified immunity should be similarly appealable: in each case, the district court’s decision is effectively unreviewable on appeal from a final judgment.

An appealable interlocutory decision must satisfy two additional criteria: it must “conclusively determine the disputed question,” Coopers & Lybrand v. Livesay At LexisNexis. , 437 U.S. 463, 468 (1978), and that question must involve a “[claim] of right separable from, and collateral to, rights asserted in the action,” Cohen v. Beneficial Loan Corp. At LexisNexis. , supra, at 546. The denial of a defendant’s motion for dismissal or summary judgment on the ground of qualified immunity easily meets these requirements. Such a decision is “conclusive” in either of two respects. In some cases, it may represent the trial court’s conclusion that even if the facts are as asserted by the defendant, the defendant’s actions violated clearly established law and are therefore not within the scope of the qualified immunity. In such a case, there will be nothing in the subsequent course of the proceedings in the district court that can alter the court’s conclusion that the defendant is not immune. Alternatively, the trial judge may rule only that if the facts are as asserted by the plaintiff, the defendant is not immune. At trial, the plaintiff may not succeed in proving his version of the facts, and the defendant may thus escape liability. Even so, the court’s denial of summary judgment finally and conclusively determines the defendant’s claim of right not to stand trial on the plaintiff’s allegations, and because “[there] are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred,” it is apparent that “Cohen’s threshold requirement of a fully consummated decision is satisfied” in such a case. Abney v. United States At LexisNexis., 431 U.S., at 659.

Similarly, it follows from the recognition that qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct that a claim of immunity is conceptually distinct from the merits of the plaintiff’s claim that his rights have been violated. See id., at 659-660. An appellate court reviewing the denial of the defendant’s claim of immunity need not consider the correctness of the plaintiff’s version of the facts, nor even determine whether the plaintiff’s allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, in cases where the district court has denied summary judgment for the defendant on the ground that even under the defendant’s version of the facts the defendant’s conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took.9Footnote. To be sure, the resolution of these legal issues will entail consideration of the factual allegations that make up the plaintiff’s claim for relief; the same is true, however, when a court must consider whether a prosecution is barred by a claim of former jeopardy or whether a Congressman is absolutely immune from suit because the complained of conduct falls within the protections of the Speech and Debate Clause. In the case of a double jeopardy claim, the court must compare the facts alleged in the second indictment with those in the first to determine whether the prosecutions are for the same offense, while in evaluating a claim of immunity under the Speech and Debate Clause, a court must analyze the plaintiff’s complaint to determine whether the plaintiff seeks to hold a Congressman liable for protected legislative actions or for other, unprotected conduct. In holding these and similar issues of absolute immunity to be appealable under the collateral order doctrine, see Abney v. United States At LexisNexis., supra; Helstoski v. Meanor, 442 U.S. 500 (1979); Nixon v. Fitzgerald, 457 U.S. 731 (1982), the Court has recognized that a question of immunity is separate from the merits of the underlying action for purposes of the Cohen test even though a reviewing court must consider the plaintiff’s factual allegations in resolving the immunity issue.

Accordingly, we hold that a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable “final decision” within the meaning of 28 U. S. C. § 1291 notwithstanding the absence of a final judgment.


The Court of Appeals thus had jurisdiction over Mitchell’s claim of qualified immunity, and that question was one of the questions presented in the petition for certiorari which we granted without limitation. Moreover, the purely legal question on which Mitchell’s claim of immunity turns is “appropriate for our immediate resolution” notwithstanding that it was not addressed by the Court of Appeals. Nixon v. Fitzgerald, supra, at 743, n. 23. We therefore turn our attention to the merits of Mitchell’s claim of immunity.

Under Harlow v. Fitzgerald, Mitchell is immune unless his actions violated clearly established law. See 457 U.S., at 818-819; see also Davis v. Scherer, 468 U.S. 183, 197 (1984). Forsyth complains that in November 1970, Mitchell authorized a warrantless wiretap aimed at gathering intelligence regarding a domestic threat to national security — the kind of wiretap that the Court subsequently declared to be illegal. Keith, 407 U.S. 297 (1972). The question of Mitchell’s immunity turns on whether it was clearly established in November 1970, well over a year before Keith was decided, that such wiretaps were unconstitutional. We conclude that it was not.

* * * * *

As of 1970, the Justice Departments of six successive administrations had considered warrantless domestic security wiretaps constitutional. Only three years earlier, this Court had expressly left open the possibility that this view was correct. Two Federal District Courts had accepted the Justice Department’s position, and although the Sixth Circuit later firmly rejected the notion that the Fourth Amendment countenanced warrantless domestic security wiretapping, this Court found the issue sufficiently doubtful to warrant the exercise of its discretionary jurisdiction.

* * * * *

Of course, Keith finally laid to rest the notion that warrantless wiretapping is permissible in cases involving domestic threats to the national security. But whatever the agreement with the Court’s decision and reasoning in Keith may be, to say that the principle Keith affirmed had already been “clearly established” is to give that phrase a meaning that it cannot easily bear.12Footnote. The legality of the warrantless domestic security wiretap Mitchell authorized in November 1970, was, at that time, an open question, and Harlow teaches that officials performing discretionary functions are not subject to suit when such questions are resolved against them only after they have acted. The District Court’s conclusion that Mitchell is not immune because he gambled and lost on the resolution of this open question departs from the principles of Harlow. Such hindsight-based reasoning on immunity issues is precisely what Harlow rejected. The decisive fact is not that Mitchell’s position turned out to be incorrect, but that the question was open at the time he acted. Hence, in the absence of contrary directions from Congress, Mitchell is immune from suit for his authorization of the Davidon wiretap notwithstanding that3 his actions violated the Fourth Amendment.13Footnote.


We affirm the Court of Appeals’ denial of Mitchell’s claim to absolute immunity. The court erred, however, in declining to accept jurisdiction over the question of qualified immunity; and to the extent that the effect of the judgment of the Court of Appeals is to leave standing the District Court’s erroneous decision that Mitchell is not entitled to summary judgment on the ground of qualified immunity, the judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Powell took no part in the decision of this case.

Justice Rehnquist took no part in the consideration or decision of this case. Chief Justice Burger, concurring in part.

* * * * *

Justice O'Connor, with whom the Chief Justice joins, concurring in part.

* * * * *

Justice Stevens, concurring in the judgment.

* * * * *

Justice Brennan, with whom Justice Marshall joins, concurring in part and dissenting in part.

I join Parts I and II of the Court’s opinion, for I agree that qualified immunity sufficiently protects the legitimate needs of public officials, while retaining a remedy for those whose rights have been violated. Because denial of absolute immunity is immediately appealable, Nixon v. Fitzgerald, 457 U.S. 731, 743 (1982), the issue is squarely before us and, in my view, rightly decided.

I disagree, however, with the Court’s holding that the qualified immunity issue is properly before us. For the purpose of applying the final judgment rule embodied in 28 U. S. C. § 1291 , I see no justification for distinguishing between the denial of Mitchell’s claim of qualified immunity and numerous other pretrial motions that may be reviewed only on appeal of the final judgment in the case. I therefore dissent from its holding that denials of qualified immunity, at least where they rest on undisputed facts, are generally appealable.


* * * * *

We have always read the Cohen collateral order doctrine narrowly, in part because of the strong policies supporting the § 1291 final judgment rule. The rule respects the responsibilities of the trial court by enabling it to perform its function without a court of appeals peering over its shoulder every step of the way. It preserves scarce judicial resources that would otherwise be spent in costly and time-consuming appeals. Trial court errors become moot if the aggrieved party nonetheless obtains a final judgment in his favor, and appellate courts need not waste time familiarizing themselves anew with a case each time a partial appeal is taken. Equally important, the final judgment rule removes a potent weapon of harassment and abuse from the hands of litigants. As Justice Frankfurter, writing for the Court in Cobbledick v. United States At LexisNexis. , 309 U.S. 323, 325 (1940), noted, the rule:

“[avoids] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. To be effective, judicial administration must not be leaden footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause.”

* * * * *


Although the qualified immunity question in this suit is not identical to the ultimate question on the merits, the two are quite closely related. The question on the merits is whether Mitchell violated the law when he authorized the wiretap of Davidon’s phone without a warrant. The immunity question is whether Mitchell violated clearly established law when he authorized the wiretap of Davidon’s phone without a warrant. Assuming with the Court that all relevant factual disputes in this case have been resolved, a necessary implication of a holding that Mitchell was not entitled to qualified immunity would be a holding that he is indeed liable. Moreover, a trial court seeking to answer either question would refer to the same or similar cases and statutes, would consult the same treatises and secondary materials, and would undertake a rather similar course of reasoning. At least in the circumstances presented here, the two questions are simply not completely separate.

* * * * *

I thus find the application of the second prong of the Cohen test to result in a straightforward preclusion of interlocutory appeal.

* * * * *

In an attempt to avoid the rigors of the second prong of the collateral order doctrine, the Court holds that “a claim of immunity is conceptually distinct from the merits of the plaintiff’s claim that his rights have been violated.” Ante, at 527-528. Our previous cases, especially those of recent vintage, have established a more exacting standard. The ordinary formulation is from Coopers & Lybrand; we stated there that an interlocutory order may be considered final for purposes of immediate appeal only if it “[resolves] an important issue completely separate from the merits of the action.” 437 U.S., at 468 At LexisNexis. 437 U.S., at 468.

* * * * *

Even if something less than complete separability were required, the Court’s toothless standard disserves the important purposes underlying the separability requirement. First, where a pretrial issue is entirely separate from the merits, interlocutory review may cause delay and be unjustified on various grounds, but it at least is unlikely to require repeated appellate review of the same or similar questions. In contrast, where a pretrial issue is closely related to the merits of a case and interlocutory review is permitted, post-judgment appellate review is likely to require the appellate court to reexamine the same or similar legal issues. The Court’s holding today has the effect of requiring precisely this kind of repetitious appellate review. In an interlocutory appeal on the qualified immunity issue, an appellate court must inquire into the legality of the defendant’s underlying conduct. As the Court has recently noted, “[most] pretrial orders of district judges are ultimately affirmed by appellate courts.” Richardson-Merrell Inc. v. Koller, ante, at 434. Thus, if the trial court is, as usual, affirmed, the appellate court must repeat the process on final judgment. Although I agree with the Court that the legal question in each review would be “conceptually” different, the connection between the research, analysis, and decision of each of the issues is apparent; much of the work in reviewing the final judgment would be duplicative.

* * * * *


The Court states that “[at] the heart of the issue before us,” ante, at 525, is the third prong of the Cohen test: whether the order is effectively unreviewable upon ultimate termination of the proceedings. The Court holds that, because the right to qualified immunity includes a right not to stand trial unless the plaintiff can make a material issue of fact on the question of whether the defendant violated clearly established law, it cannot be effectively vindicated after trial. Cf. Abney v. United States At LexisNexis. , 431 U.S. 651 (1977).

* * * * *

In my view, a sober assessment of the interests protected by the qualified immunity defense counsels against departing from normal procedural rules when the defense is asserted. The Court claims that subjecting officials to trial may lead to “‘distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.’” Ante, at 526, quoting Harlow v. Fitzgerald, supra, at 816. Even if I agreed with the Court that in the post-Harlow environment these evils were all real, I could not possibly agree that they justify the Court’s conclusion. These same ill results would flow from an adverse decision on any dispositive preliminary issue in a lawsuit against an official defendant — whether based on a statute of limitations, collateral estoppel, lack of jurisdiction, or the like. A trial court is often able to resolve these issues with considerable finality, and the trial court’s decision on such questions may often be far more separable from the merits than is a qualified immunity ruling. Yet I hardly think the Court is prepared to hold that a government official suffering an adverse ruling on any of these issues would be entitled to an immediate appeal.

In any event, I do not think that the evils suggested by the Court pose a significant threat, given the liability standards established in Harlow. We held in Harlow that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S., at 818. I have no doubt that trial judges employing this standard will have little difficulty in achieving Harlow’s goal of early dismissal of frivolous or insubstantial lawsuits. The question is whether anything is to be gained by permitting interlocutory appeal in the remaining cases that would otherwise proceed to trial.

Such cases will predictably be of two types. Some will be cases in which the official did violate a clearly established legal norm. In these cases, nothing is to be gained by permitting interlocutory appeal because they should proceed as expeditiously as possible to trial. The rest will be cases in which the official did not violate a clearly established legal norm. Given the nature of the qualified immunity determination, I would expect that these will tend to be quite close cases, in which the defendant violated a legal norm but in which it is questionable whether that norm was clearly established. Many of these cases may well be appealable as certified interlocutory appeals under 28 U. S. C. § 1292(b) or, less likely, on writ of mandamus. Cf. Firestone Tire & Rubber Co. v. Risjord At LexisNexis. , 449 U.S., at 378, n. 13; Coopers & Lybrand v. Livesay At LexisNexis. , 437 U.S., at 474-475. It is only in the remaining cases that the Court’s decision today offers the hope of an otherwise unavailable pretrial reversal. Out of this class of cases, interlocutory appeal is beneficial only in that still smaller subclass in which the trial court’s judgment is reversed.

The question is thus whether the possibly beneficial effects of avoiding trial in this small subset of cases justify the Court’s declaration that the right to qualified immunity is a right not to stand trial at all. The benefits seem to me to be rather small. Most meritless cases will be dismissed at the early stages, thus minimizing the extent to which officials are distracted from their duties. Officials aware of the extensive protection offered by qualified immunity would be deterred only from activities in which there is at least a strong scent of illegality; deterrence from many such activities (those that are clearly unlawful) is precisely one of the goals of official liability. Finally, I cannot take seriously the Court’s suggestion that officials who would otherwise be deterred from taking public office will have their confidence restored by the possibility that mistaken trial court qualified immunity rulings in some small class of cases that might be brought against them will be overturned on appeal before trial.

Even if there were some benefits to be gained by granting officials a right to immediate appeal, a rule allowing immediate appeal imposes enormous costs on plaintiffs and on the judicial system as a whole.9Footnote.

* * * * *

[T]he right to interlocutory appeal recognized today is generally available to (and can be expected to be widely pursued by) virtually any governmental official who is sued in his personal capacity, regardless of the merits of his claim to qualified immunity or the strength of the claim against him. As a result, I fear that today’s decision will give government officials a potent weapon to use against plaintiffs, delaying litigation endlessly with interlocutory appeals. The Court’s decision today will result in denial of full and speedy justice to those plaintiffs with strong claims on the merits and a relentless and unnecessary increase in the caseload of the appellate courts.

Mitchell v. Forsythe Transcript Access this transcript at Lexis.

Mitchell v. Forsythe Briefsimage


Notes on Mitchell v. Forsyth


  1. May the defendant take an interlocutory appeal from the trial court's denial of a motion to dismiss on the ground of qualified immunity where the complaint includes not only a claim for damages, but also a demand for injunctive relief that will proceed to trial regardless of the outcome of the appeal? While the Court had no occasion to visit this issue in Mitchell v. Forsyth, 472 U.S. at 519 n.5, in Behrens v. Pelletier At LexisNexis., 516 U.S. 299, (1996), the Court ruled as follows:
    Respondent…argues that no appeal is available where, even if the District Court's qualified-immunity ruling is reversed, the defendant will be required to endure discovery and trial on matters separate from the claims against which immunity was asserted. Respondent reasons that a ruling which does not reach all the claims does not “conclusively determin[e] the defendant's claim of right not to stand trial,” id. at 527, and thus the order denying immunity cannot be said to be “final” within the meaning of Cohen…

    The Harlow right to immunity is a right to immunity from certain claims, not from litigation in general; when immunity with respect to those claims has been finally denied, appeal must be available, and cannot be foreclosed by the mere addition of other claims to the suit. Making appealability depend upon such a factor, particular to the case at hand, would violate the principle discussed above, that appealability determinations are made for classes of decisions, not individual orders in specific cases. Apart from these objections in principle, the practical effect of respondent's proposal would be intolerable. If the district court rules erroneously, the qualified-immunity right not to be subjected to pretrial proceedings will be eliminated, so long as the plaintiff has alleged (with or without evidence to back it up) violation of one “clearly established” right; and both that and the further right not to be subjected to trial itself will be eliminated, so long as the complaint seeks injunctive relief (for which no “clearly established” right need be alleged).

  2. Does Mitchell authorize an interlocutory appeal if the trial court denies the motion to dismiss or the motion for summary judgment because there are disputes of material fact that must be resolved in order to determine whether the right asserted was clearly established under the particular factual contours of the case? In Johnson v. Jones At LexisNexis., 515 U.S. 304 (1995), the Court held that the district court's denial of police officers' pretrial assertion of qualified immunity was not immediately appealable where there was a fact dispute over whether the officers were involved in the beating that gave rise to the complaint:
    [T]he District Court's determination that the summary judgment record in this case raised a genuine issue of fact concerning petitioners' involvement in the alleged beating of respondent was not a “final decision” within the meaning of the relevant statute. We so decide essentially for three reasons.

    First, consider Mitchell itself, purely as precedent. The dispute underlying the Mitchell appeal involved the application of “clearly established” law to a given (for appellate purposes undisputed) set of facts. And, the Court, in its opinion, explicitly limited its holding to appeals challenging, not a district court's determination about what factual issues are “genuine,” Fed. Rule Civ. Proc. 56(c), but the purely legal issue what law was “clearly established.”

    * * * * *

    Second…Mitchell rested upon the view that “a claim of immunity is conceptually distinct from the merits of the plaintiff's claim.”

    * * * * *

    Where, however, a defendant simply wants to appeal a district court's determination that the evidence is sufficient to permit a particular finding of fact after trial, it will often prove difficult to find any such “separate” question—one that is significantly different from the fact-related legal issues that likely underlie the plaintiff's claim on the merits.

    * * * * *

    It has been suggested that Mitchell implicitly recognized that “the need to protect officials against the burdens of further pretrial proceedings and trial” justifies a relaxation of the separability requirement…To take what petitioners call a mere step beyond Mitchell, Brief for Petitioners 18, would more than relax the separability requirement—it would in many cases simply abandon it.

    Finally, consider the competing considerations that underlie questions of finality.

    * * * * *

    For one thing, the issue here at stake—the existence, or nonexistence, of a triable issue of fact—is the kind of issue that trial judges, not appellate judges, confront almost daily. Institutionally speaking, appellate judges enjoy no more comparative expertise in such matters…And, to that extent, interlocutory appeals are less likely to bring important error-correcting benefits here than where purely legal matters are at issue, as in Mitchell.

    * * * * *

    For another thing, questions about whether or not a record demonstrates a “genuine” issue of fact for trial, if appealable, can consume inordinate amounts of appellate time. Many constitutional tort cases, unlike the simple “we didn't do it” case before us, involve factual controversies about, for example, intent—controversies that, before trial, may seem nebulous. To resolve those controversies—to determine whether there is or is not a triable issue of fact about such a matter—may require reading a vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials. This fact means, compared with Mitchell, greater delay.

    For a third thing, the close connection between this kind of issue and the factual matter that will likely surface at trial means that the appellate court, in the many instances in which it upholds a district court's decision denying summary judgment, may well be faced with approximately the same factual issue again, after trial, with just enough change (brought about by trial testimony) to require it, once again, to canvass the record.

    * * * * *

    The upshot is that, compared with Mitchell, considerations of delay, comparative expertise of trial and appellate courts, and wise use of appellate resources argue in favor of limiting interlocutory appeals of “qualified immunity” matters to cases presenting more abstract issues of law.

    515 U.S. at 313-17.
    1. Does Johnson v. Jones preclude interlocutory review in every case where the trial court finds there is a material dispute of fact? In Behrens v. Pelletier At LexisNexis., 516 U.S. 299 (1996), the Court narrowed the scope of the Johnson holding:
      [R]espondent asserts that appeal of denial of the summary-judgment motion is not available because the denial rested on the ground that “[m]aterial issues of fact remain.” This, he contends, renders the denial unappealable under last Term's decision in Johnson v. Jones, 515 U.S., at __ (slip op., at 7-10). That is a misreading of the case. Every denial of summary judgment ultimately rests upon a determination that there are controverted issues of material fact, see Fed. Rule Civ. Proc. 56, and Johnson surely does not mean that every denial of summary judgment is nonappealable. * * * * *

      Here the District Court's denial of petitioner's summary-judgment motion necessarily determined that certain conduct attributed to petitioner (which was controverted) constituted a violation of clearly established law. Johnson permits petitioner to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of “objective legal reasonableness.”

      See also Murphy v. State of Arkansas At LexisNexis., 127 F.3d 750, 754 (8th Cir. 1997)(“[E]ven if the underlying claims raise genuine issues of material fact, we have interlocutory jurisdiction to consider the primary qualified immunity issue of law—'whether, in view of the facts that the district court deemed sufficiently supported for summary judgment purposes, the individual defendants' conduct was objectively reasonable given their knowledge and the clearly established law.'”); Hart v. O’Brian At LexisNexis., 127 F.3d 424, 436 (5th Cir. 1997)(“[T]he district court determined that there were sufficient uncontested facts to establish that the officers engaged in the conduct in question, but that there were insufficient uncontested facts to decide whether the officials enjoyed immunity as a matter of law. Hence, the officials may argue on interlocutory appeal (as they do here) that, contrary to the district court's judgment, enough uncontested facts exist to determine that they are immune as a matter of law and that, on the basis of these facts, they are immune.”)
    2. How can the court of appeals determine if it has jurisdiction where the district court denies defendant's pre-trial assertion of qualified immunity on the ground that there are disputes of material fact, but the court fails to make specific findings of fact upon which its analysis turns? The Johnson Court anticipated this problem and advised as follows:
      When faced with an argument that the district court mistakenly identified clearly established law, the court of appeals can simply take, as given, the facts that the district court assumed when it denied summary judgment for that (purely legal) reason. Knowing that this is “extremely helpful to a reviewing court,” Anderson, 477 U.S., at 250, n.6, district courts presumably will often state those facts. But, if they do not, we concede that a court of appeals may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed. Regardless, this circumstance does not make a critical difference to our result, for a rule that occasionally requires a detailed evidence-based review of the record is still, from a practical point of view, more manageable than the rule that petitioners urge us to adopt. Petitioners' approach would make that task, not the exception, but the rule.
      515 U.S. at 319 At LexisNexis..
      • In Winfield v. Bass At LexisNexis., 106 F.3d 525 (4th Cir. 1997)(en banc), the members of the court vigorously disagreed as to the scope of review of fact-findings in interlocutory appeals challenging a district court's pre-trial ruling that a constitutional right was clearly established. Writing for the majority, Judge Wilkins offered the following perspective:
        It appears that the principal source of disagreement offered by the dissent concerns our approach to determining the factual basis to which we must look in resolving the legal question over which we possess jurisdiction—perhaps the most difficult aspect of our review of denials of qualified immunity in an interlocutory appeal and one that has not yet been resolved conclusively by the Supreme Court. * * * * *

        The Johnson Court recognized that it will often be possible for an appellate court to utilize the facts that were assumed by the district court in denying the motion for summary judgment. Id. But, the Court also acknowledged that in some instances the district court will fail fully to set forth the facts on which its decision is based. Id. In that circumstance, the Court explained, “a court of appeals may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed.” Id.; Behrens, ___ U.S. at ___, 116 S.Ct. at 842. In our view, when a district court fails fully to set forth the facts supporting its legal conclusion that a government official is not entitled to qualified immunity, the court of appeals must review the materials submitted to the district court to determine what the record, viewed in the light most favorable to the nonmoving party, discloses in order to have a factual basis upon which to base its legal conclusion.

        The dissent, however, opines that in directing the courts of appeals to determine the facts that district courts “likely assumed,” the Supreme Court indicated that our task is not to attempt to divine what the evidence viewed in the light most favorable to the plaintiff actually showed. Rather, the dissent suggests that we should construct from the record a set of facts that supports the legal conclusion reached by the district court. See infra pp. 542-44. We cannot agree.

        * * * * *

        [T]he concerns of avoiding unnecessary delay and wise use of judicial resources that led the Johnson Court to its principal holding—that courts of appeals possess jurisdiction to decide only the abstract legal issues on interlocutory review—persuade us that in determining what facts the district court “likely assumed,” we must determine what the evidence actually shows when viewed in the light most favorable to the nonmoving party.

        Moreover, the Johnson Court indicated that this was the proper course: In discussing the necessity of determining the factual basis upon which our legal ruling will be premised when a district court fails fully to set forth the factual basis for its legal conclusion, the Johnson Court noted that “a rule that occasionally requires a detailed evidence-based review of the record is still, from a practical point of view, more manageable than” a rule requiring courts of appeals to routinely conduct the same type of review. Id. at ___, 115 S.Ct. at 2159. Thus, the Court plainly envisioned that on those infrequent occasions when a district court does not supply the factual basis for its decision, we would be required to undertake the type of de novo review that generally would be prohibited.

        * * * * *

        Similarly, a question of the proper factual basis for our resolution of the purely legal question over which we possess jurisdiction may arise when a district court bases its decision on stated facts, but other, undisputed, material facts are present that dictate the conclusion that a government official is entitled to qualified immunity. For the same reasons that support our conclusion that this court must look to the actual evidence presented viewed in the light most favorable to the nonmoving party when a district court fails to supply the factual basis for its legal decision, we should not ignore other, undisputed, facts in rendering our decision on the legal question. Taking account of an undisputed fact in rendering a legal conclusion neither does violence to “Cohen's conceptual theory of appealability” nor involves this court in the type of weighing of the record that the Johnson Court found unacceptable. Johnson, ___ U.S. at ___ - ___, 115 S.Ct. at 2156-57. Further, a district court does not possess any institutional advantage in the consideration of an undisputed fact, and the acceptance of such a fact does not consume significant appellate resources. See id. at ___-___, 115 S.Ct. at 2157-58. On the other hand, the failure to acknowledge an undisputed fact could result in considerable delay and inefficiency—for example, if the failure to do so results in the denial of qualified immunity in circumstances when the consideration of the undisputed fact would result in an official's entitlement to it.

        In sum, we conclude that when a district court fails to set forth fully the factual basis upon which its legal conclusion that a governmental official is not entitled to summary judgment on the basis of qualified immunity, this court reviews the evidence properly before the district court for purposes of considering the summary judgment question. It then determines what the evidence, viewed in the light most favorable to the nonmoving party, demonstrated. This is the factual basis that the district court “likely assumed” in rendering its legal conclusion and is the factual basis upon which this court must render its decision on the purely legal issues presented in the appeal. Furthermore, when undisputed material facts are present that the district court did not consider in ruling on the qualified immunity issue, this court need not ignore those facts in rendering its legal decision.

        106 F.3d at 533-35. Judge Phillips' dissenting opinion construed Johnson v. Jones as mandating a far more deferential standard of review as to district court findings of fact.
        [W]hen it appears from the record that a defendant-appellant is seeking review of a determination that there are genuine issues of material fact respecting a factual ground of his qualified immunity defense (“didn't do it”; “reasonably mistaken in doing it”) that require denial of his motion, the appellate court may not address to any extent the correctness of that determination. * * * * *

        Assuming, however, that a purely legal determination is properly presented for review, what exactly is reviewed? More specifically, does the court of appeals accept the district court's identification of the factual predicate for that court's legal determination and, accepting it, review only the resulting “purely” legal determination? Or may the court of appeals review for error in the district court's identification of the factual predicate that it assumed for summary judgment purposes?

        * * * * *

        Though the consequence may seem severe, Johnson's answer is plain. Review is confined to the “purely” legal issue whether, accepting the district court's factual predicate, a violation of clearly established law would have occurred.

        * * * * *

        First off, the Court emphasized the jurisdictional compulsion to confine review in this way. Interlocutory appeals of qualified immunity/summary judgment denials, said the Court, best serve the final judgment rule, “if they [are] limited to cases presenting neat abstract issues of law.” Id. at ___, 115 S.Ct. at 2158 (quoting 15A Wright & Miller § 3914.10, at 664). As is evident, this legal issue can only be addressed as an “abstract” one if its resolution does not involve review by courts of appeals of the factual predicates upon which the district court made its determination. This is borne out in Johnson's discussion of how courts of appeal are to identify the factual predicates for the district courts' purely legal determinations when those courts “simply deny summary judgment without indicating their reasons for doing so.” Id. at ___, 115 S.Ct. at 2159. Easily done, said the Johnson Court, when the district court has expressly “stated” the facts it has assumed in denying the motion. In that situation, said the Court, “the court of appeals can simply take, as given, the facts that the district court assumed,” and assume the same “set of facts” “when it answers the purely legal question about 'clearly established' law.” Id. And, where the district court has not performed the helpful task of stating the facts it has assumed so that this must be sought by the court of appeals in “a cumbersome review of the record,” the search still is only for “what facts the district court, in the light most favorable to the nonmoving party likely assumed,” (emphasis supplied), not for what it should have assumed.

        * * * * *

        I read Johnson as having confined interlocutory appellate review of district court orders denying motions for summary judgment on qualified immunity grounds to a narrow, “abstract” issue of “pure” law: whether “tak[ing] as given” the facts assumed (rightly or wrongly) by the district court, id. at ___, 115 S.Ct. at 2159, those facts show a violation of clearly established law, etc. This means that interlocutory review is not available with respect either to (1) determinations by district courts that there are genuine issues of material fact respecting a factual ground for the defense which require the denial or (2) determinations by district courts of those facts that are to be assumed, for summary judgment purposes, in deciding whether they show a violation of clearly established right of which a reasonable official in defendant's position would have known.

        * * * * *

        The more limited scope of review mandated by Johnson necessarily will allow district court errors in these fact-related determinations to go undetected at the summary judgment stage and so will deprive some public official defendants of the trial avoidance benefits to which qualified immunity entitled them. This, however, is a risk of which the Johnson Court was expressly aware and which it thought nevertheless compelled by jurisdictional constraints on collateral order review and by considerations of prudent judicial administration. See Johnson, ___ U.S. at ___, 115 S.Ct. at 2158.

        To put those risks in perspective, two points should be noted. (1) The practical effect is not to abrogate but only to allocate to the district courts final responsibility for two fact-related determinations in pre-trial qualified immunity applications; errors in those determinations will—as in all matters—be the rare exception rather than a frequent occurrence in those courts. (2) When occasional error does occur, its effect—of forcing unwarranted trial—is exhausted there; the error is not immunized and may yet be corrected at trial or on later appeal, with liability thereby avoided. In any event, as I understand Johnson, its fundamental point is that the game—of laborious interlocutory evidence review—is simply not worth the candle—of identifying and correcting the occasional district court error that will occur both in identifying genuine issues of fact respecting factual grounds of the defense and in identifying the factual predicates for denials of summary judgment on purely legal grounds.

    106 F.3d at 545-47.
  3. Can a plaintiff avoid the risk of an interlocutory appeal from denial of the immunity defense by filing a Section 1983 action in state court rather than in federal court? In Johnson v. Frankell At LexisNexis. , 117 S.Ct. 1800 (1997), the defendants appealed the state trial court's denial of a motion to dismiss raising the defense of qualified immunity. The Idaho Supreme Court dismissed the appeal on the ground that the trial court's order was not a final judgment within the meaning of the Idaho Appellate Rules. Before the United States Supreme Court, defendants argued that because the claim and immunity defense arose under Section 1983, a federal statute, Idaho was required to recognize the same interlocutory appeal available in federal court. The Supreme Court disagreed:
    We can easily dispense with petitioners' first contention that Idaho must follow the federal construction of a “final decision.”…Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the state…This proposition, fundamental to our system of federalism, is applicable to procedural as well as substantive rules. See Wardius v. Oregon, 412 U.S. 470, 477 (1973).

    The definition of the term “final decision” that we adopted in Mitchell was…construing the federal statutory language of 28 U.S.C. §1291….Idaho could, of course, place the same construction on its Appellate Rule 11(a)(1) as we have placed on §1291. But that is clearly a choice for that Court to make, not one that we have any authority to command.

    * * * * *

    Petitioners also contend that, to the extent that Idaho Appellate Rule 11(a)(1) does not allow an interlocutory appeal, it is pre-empted by §1983. Relying heavily on Felder v. Casey At LexisNexis., 487 U.S. 131 (1988), petitioners first assert that pre-emption is necessary to avoid “different outcomes in §1983 litigation based solely on whether the claim is asserted in state or federal court,” Id., at 138. Second, they argue that the state procedure “impermissibly burden[s]” the federal immunity from suit because it does not adequately protect their right to prevail on the immunity question in advance of trial.

    * * * * *

    Contrary to petitioners' assertions, Idaho's decision not to provide appellate review for the vast majority of interlocutory orders—including denials of qualified immunity in §1983 cases—is not “outcome determinative” in the sense that we used that term when we held that Wisconsin's notice-of-claim statute could not be applied to defeat a federal civil rights action brought in state courts under §1983.

    * * * * *

    If petitioners' claim to qualified immunity is meritorious, there is nosuggestion that the application of the Idaho rules of procedure will produce a final result different from what a federal ruling would produce. Petitioners were able to argue their immunity from suit claim to the trial court, just as they would to a federal court. And the claim will be reviewable by the Idaho Supreme Court after the trial court enters a final judgment, thus providing the petitioners with a further chance to urge their immunity. Consequently, the postponement of the appeal until after final judgment will not affect the ultimate outcome of the case.

    Petitioners' second argument for pre-emption of the state procedural rule is that the rule does not adequately protect their right to prevail in advance of trial. In evaluating this contention, it is important to focus on the precise source and scope of the federal right at issue. The right to have the trial court rule on the merits of the qualified immunity defense presumably has its source in §1983, but the right to immediate appellate review of that ruling in a federal case has its source in §1291. The former right is fully protected by Idaho. The latter right, however, is a federal procedural right that simply does not apply in a nonfederal forum.

  4. May a defendant take an interlocutory appeal from denial of an immunity defense to state law claims filed in federal court pendent to a Section 1983 action? In Brown v. Grabowski At LexisNexis., 92 F.2d 1097, 1106-07 (3rd Cir. 1990), the court offered the analytical framework for resolving the issue:
    The Supreme Court's decision in Budinich v. Becton Dickinson & Co. At LexisNexis., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d (1988)…held that the procedural rule of finality of 28 U.S.C. §1291—not rules of finality supplied by state law—should govern appealability even in diversity cases. One implication of the Court's decision in Budinich is that our decision on the appealability of the district court's denial of defendants' motion for summary judgment should be governed solely by section 1291 as interpreted in Mitchell. * * * * *

    The Fifth and Sixth Circuits have considered the possibility that Mitchell's doctrine of appealability should govern in federal cases, like this case, that involve denials of claims of qualified official immunity based upon state law. See Sorey v. Kellett At LexisNexis., 849 F.2d 960 (5th Cir. 1988); Marrical v. Detroit News, Inc.At LexisNexis., 805 F.2d 169 (6th Cir. 1986). As both circuits noted, the parties in a diversity action, or in a federal action such as this one involving pendent state claims, are bound by federal procedural rules governing appeals, including the collateral order doctrine. Sorey, 849 F.2d at 962; Marrical, 805 F.2d at 172; see Budinich, 108 S.Ct. at 1717; Cohen, 337 U.S. at 541, 69 S.Ct. at 1224. However, we agree with each circuit that a Mitchell analysis, coupled with the teaching of Erie Railroad Co. v. Tompkins At LexisNexis., 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), dictates that:

    The right to an interlocutory appeal from the denial of a claim of absolute or qualified immunity under state law can only exist where the state has extended an underlying substantive right to be free from the burdens of litigation arising from acts taken in the course of [official] duties.
    Marrical, 805 F.2d at 172; see also Sorey, 849 F.2d at 962 (quoting and agreeing with above reasoning).

    Our conclusion that the denial of a claim of qualified immunity premised upon state law is appealable only if the state has conferred an underlying substantive immunity from suits arising from the performance of official duties consequently necessitates an inquiry into whether New Jersey extends such an immunity to its officials. We must seek an answer to this question in New Jersey's Tort Claims Act and the cases that construe it. We think that we also may look to New Jersey's doctrine and procedural rules concerning interlocutory appeals in resolving this question. Although, as we have emphasized, federal procedural rules govern appealability in federal cases such as this one, New Jersey law concerning interlocutory appeals is useful insofar as it sheds light on whether a substantive immunity from suit exists for officials under New Jersey statutory and common law. See Sorey, 849 F.2d at 962 (concluding that state procedural rules were useful for same purpose).

    After reviewing New Jersey law, the Brown court held that it lacked appellate jurisdiction over the interlocutory appeal from the district court's refusal to grant defendants summary judgment on plaintiff's pendent state law claims.
  5. In footnote 6 of Anderson v. Creighton, the Court instructed that if the allegations of the complaint are sufficient to overcome the qualified immunity, the trial court should allow discovery limited to the qualified immunity issue. Following this limited discovery, defendant may file a motion for summary judgment on qualified immunity grounds. Mitchell, 472 U.S. at 526. In Behrens v. Pelletier At LexisNexis., 516 U.S. 299 (1996), the Court considered whether a defendant who had filed an interlocutory appeal from denial of its motion to dismiss was entitled to take a second interlocutory appeal from denial of its post-discovery motion for summary judgment.
    Mitchell clearly establishes that an order rejecting the defense of qualified immunity at either the dismissal stage or the summary-judgment stage is a “final” judgment subject to immediate appeal. Since an unsuccessful appeal from a denial of dismissal cannot possibly render the later denial of a motion from summary judgment any less “final,” it follows that petitioner's appeal falls within §1291. * * * * *

    [R]esolution of the immunity question may “require more than one judiciously timed appeal,” because the legally relevant factors bearing upon the Harlow question will be different on summary judgment than on an earlier motion to dismiss. At that earlier stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for “objective legal reasonableness.” On summary judgment, however, the plaintiff can no longer rest on the pleadings, see Fed. Rule Civ. Proc. 56, and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the Harlow inquiry. It is no more true that the defendant who has unsuccessfully appealed denial of a motion to dismiss has no need to appeal denial of a motion for summary judgment, than it is that the defendant who has unsuccessfully made a motion to dismiss has no need to make a motion for summary judgment.

    The Court of Appeals expressed concern that a second appeal would tend to have the illegitimate purpose of delaying the proceedings. See 968 F.2d at 870-871. Undeniably, the availability of a second appeal affords an opportunity for abuse, but we have no reason to believe that abuse has often occurred. To the contrary, successive pretrial assertions of immunity seem to be a rare occurrence. Moreover, if and when abuse does occur, as we observed in the analogous context of interlocutory appeals on the issue of double jeopardy, “it is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims.” Abney, 431 U.S. at 662, n.8.

    1. Was the Behrens Court's assertion that “successive pretrial assertions of immunity seem to be a rare occurrence” accurate?

      In Fitzgerald v. Patrick At LexisNexis., 921 F.2d 758 (8th Cir. 1990), the court held that the defendant law enforcement officers were entitled to summary judgment on the basis of qualified immunity. However, the court assessed the costs of nine discovery depositions against the defendants because they had initiated discovery before filing the immunity motion. “All of this needless time and expense could have been avoided if the State would have filed its motion immediately because the whole purpose of an early summary judgment motion on the basis of qualified immunity is to avoid having government officials subjected to the expense and delay of discovery.” 921 F.2d at 760; see also Guzman-Rivera v. Rivera-Cruz At LexisNexis., 98 F.3d 664, 668 (1st Cir. 1996)(“[D]istrict courts are encouraged to enter scheduling orders to prevent dilatory tactics on the part of defendants with qualified immunity defenses. Absent an abuse of discretion, this court will enforce those scheduling deadlines by affirming a finding of waiver and awarding double costs.”). Under this reasoning, is not the defendant obligated to take successive interlocutory appeals?

    2. Assume that defendant in a Section 1983 action has filed an unsuccessful interlocutory appeal following denial of her motion to dismiss. After discovery limited to the qualified immunity issue, defendant fails in her second interlocutory appeal from the trial court's rejection of the motion for summary judgment. May defendant bring a third interlocutory appeal from denial of a motion for summary judgment following completion of all discovery? A fourth appeal following the trial of the case?
    3. In Apostol v. Gallion At LexisNexis., 870 F.2d 1335 (7th Cir. 1989), the court of appeals was called upon to decide whether the trial judge is empowered to hold a trial even though the defendant has filed a notice of appeal from a denial of a motion for summary judgment claiming qualified immunity. Although holding that the interlocutory appeal ordinarily divests the district court of jurisdiction to conduct the trial, the court identified limitations on this general rule.
      Courts are not helpless in the face of manipulation. District judges lose power to proceed with trial because the defendant's entitlement to block the trial is the focus of the appeal. If the claim of immunity is a sham, however, the notice of appeal does not transfer jurisdiction to the court of appeals, and so does not stop the district courts in its tracks. A complaint invoking federal law may be so thin that it does not even create federal jurisdiction…perhaps the district judge has not finally resolved the question of immunity; perhaps the disposition is so plainly correct that nothing can be said on the other side. Courts of appeals may dismiss the appeals and award sanctions, Cleaver v. Elias, 852 F.2d 266 (7th Cir. 1988), but district courts have their own resources. In interlocutory double jeopardy cases-so closely parallel to Forsyth appeals that the principles are freely transferrable-a district court may certify to the court of appeals that the appeal is frivolous and get on with the trial…Such a power must be used with restraint, just as the power to dismiss a complaint because it is frivolous is anomalous and must be used with restraint. But it is there, and it may be valuable in cutting short the deleterious effects of unfounded appeals.

      Frivolousness is not the only reason a notice of appeal may be ineffectual. Defendants may waive or forfeit their right not to be tried. If they wait too long after the denial of summary judgment, or if they use claims of immunity in a manipulative fashion, they surrender any entitlement to obtain an appellate decision before trial…We have no doubt…that defendants who play games with the district court's schedule forfeit their entitlement to a pretrial appeal. A district court may certify that a defendant has surrendered the entitlement to a pre-trial appeal and proceed with trial.

    Id. at 1339.
  6. In Hunter v. Bryant At LexisNexis., 502 U.S. 224 (1991)(per curiam), the district court denied the motion for summary judgment filed by Secret Service agents who asserted qualified immunity to Bryant's claim that the agents had arrested him without probable cause for making threats against President Reagan. The Ninth Circuit affirmed the refusal to award summary judgment, finding the issue of whether a reasonable officer could have believed he had probable cause to be a question for the jury. The Supreme Court reversed, holding the court of appeals' reasoning “routinely places the question of immunity in the hands of the jury. Immunity ordinarily should be decided by the court long before trial.” 502 U.S. at 228.

    While Hunter urges that the judge “ordinarily” is to determine the viability of the immunity defense, how is qualified immunity to be resolved at trial if disputes of fact preclude disposition of the issue on a motion to dismiss or motion for summary judgment? Compare Oliveira v. Mayer At LexisNexis. , 23 F.3d 642, 650 (2d Cir. 1994), cert. denied, 513 U.S. 1076 (1995)(jury to determine whether police officers had qualified immunity) with Stone v. Peacock At LexisNexis., 968 F.2d 1163, 1166 (11th Cir. 1992)(“the defense of qualified immunity should be decided by the court, and should not be submitted for decision by the jury.”). Is there a way in which the judge can retain ultimate authority for determining the immunity without impinging upon the jury's traditional role as finder of fact? See Smith v. Mattox At LexisNexis. , 127 F.3d 1416, 1420 (11th Cir. 1997); King v. Macri At LexisNexis. , 993 F.2d 294, 299 (2d Cir. 1993).

III. Footnotes

| 0 Comments | 0 TrackBacks

*Film clip from the PBS Video Series EYES ON THE PRIZE -- America's Civil Rights Years, Episode 3 Ain't Scared of Your Jails (1960-61).

Copyright 1986
Blackside, Inc.
46 Plympton Street
Boston, MA 02118-2425
(617) 536-6900

4 In Thomas various "Freedom Riders" were arrested and convicted under circumstances substantially similar to the facts of these cases. The police testified that they ordered the "Freedom Riders" to leave because they feared that onlookers might breach the peace. We reversed without argument or opinion, citing Boynton v. Virginia, 364 U.S. 454 (1960). Boynton held that racial discrimination in a bus terminal restaurant utilized as an integral part of the transportation of interstate passengers violates § 216 (d) of the Interstate Commerce Act. State enforcement of such discrimination is barred by the Supremacy Clause. (Back)

5 Respondents read the court's opinion as remanding for a new trial on this claim. The court stated, however, that the officers "are immune from liability for false imprisonment at common law but not from liability for violations of the Federal statutes on civil rights. It therefore follows that there should be a new trial of the civil rights claim against the appellee police officers so that there may be a determination of the fact issue as to whether the appellants invited or consented to the arrest and imprisonment." 352 F.2d, at 221. (Back)

2As altered by the reviser who prepared the Revised Statutes of 1878, and as printed in 42 U. S. C. § 1983, the statute refers to "every person" rather than to "any person." (Back)

4Other justifications for the doctrine of absolute immunity have been advanced: (1) preventing threat of suit from influencing decision; (2) protecting judges from liability for honest mistakes; (3) relieving judges of the time and expense of defending suits; (4) removing an impediment to responsible men entering the judiciary; (5) necessity of finality; (6) appellate review is satisfactory remedy; (7) the judge's duty is to the public and not to the individual; (8) judicial self-protection; (9) separation of powers. See generally Jennings, Tort Liability of Administrative Officers, 21 Minn. L. Rev. 263, 271-272 (1937). (Back)

6 Respondents did not challenge in their petition in No. 94 the holding of the Court of Appeals that a new trial is necessary because of the prejudicial cross-examination. Belatedly, they devoted a section of their brief to the contention that the cross-examination was proper. This argument is no more meritorious than it is timely. The views of the Communist Party on racial equality were not an issue in these cases. (Back)

6 Respondents did not challenge in their petition in No. 94 the holding of the Court of Appeals that a new trial is necessary because of the prejudicial cross-examination. Belatedly, they devoted a section of their brief to the contention that the cross-examination was proper. This argument is no more meritorious than it is timely. The views of the Communist Party on racial equality were not an issue in these cases. (Back)

6In their original complaint, respondents sought only injunctive and declaratory relief. App. 11-12. In their amended complaint, they added a prayer for compensatory and punitive damages. Id., at 92. Trial was to a jury; and the District Court in ruling on motions after declaring a mistrial appears to have treated the case as having developed into one for damages only since it entered judgment for petitioners and dismissed the complaint on the basis of their good-faith defense. In a joint motion for a new trial, respondents specifically argued that the District Court had erred in treating the case as one for the recovery of damages only and in failing to give them a trial and ruling on their claims for injunctive and declaratory relief. Id., at 131. The District Court denied the motion. Id., at 133. Upon appeal, respondents renewed these contentions, and the Court of Appeals, after finding a substantive due process violation, directed the District Court to give respondents an injunction requiring expunction of the expulsion records and restraining any further continuing punishment. 485 F.2d, at 190. Petitioners urge that we reverse the Court of Appeals and order the complaint dismissed. Brief for Petitioners 48. Respondents, however, again stress that the relief they sought included equitable relief. Brief for Respondents 47-48, 50.

In light of the record in this case, we are uncertain as to the basis for the District Court's judgment, for immunity from damages does not ordinarily bar equitable relief as well. The opinion of the Court of Appeals does not entirely dispel this uncertainty. With the case in this posture, it is the better course to proceed directly to the question of the immunity of school board members under § 1983. (Back)

8"Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here? Did it mean to subject legislators to civil liability for acts done within the sphere of legislative activity? Let us assume, merely for the moment, that Congress has constitutional power to limit the freedom of State legislators acting within their traditional sphere. That would be a big assumption. But we would have to make an even rasher assumption to find that Congress thought it had exercised the power. These are difficulties we cannot hurdle. The limits of §§ 1 and 2 of the 1871 statute . . . were not spelled out in debate. We cannot believe that Congress -- itself a staunch advocate of legislative freedom -- would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us." Tenney v. Brandhove341 U.S., at 376. (Back)

11The overwhelming majority of school board members are elected to office. See A. White, Local School Boards: Organization and Practices 8 (U.S. Office of Education, OE-23023, Bulletin No. 8, 1962); National School Boards Association, Survey of Public Education in the Member Cities of the Council of Big City Boards of Education 3 (Nov. 1968); Campbell, Cunningham, & McPhee, supra, n. 10, at 164-170. Most of the school board members across the country receive little or no monetary compensation for their service. White, supra, at 67-79; National School Boards Association, supra, at 3, 15-21; Campbell, Cunningham, & McPhee, supra, at 172. (Back)

12"[School directors] are authorized, and it is their duty to adopt reasonable rules for the government and management of the school, and it would deter responsible and suitable men from accepting the position, if held liable for damages to a pupil expelled under a rule adopted by them, under the impression that the welfare of the school demanded it, if the courts should deem it improper." Dritt v. Snodgrass, 66 Mo., at 293. (Back)

2The opinion indicates that actual malice is presumed where one acts in ignorance of the law; thus it would appear that even good-faith reliance on the advice of counsel is of no avail. (Back)

4The decision of the Court in Scheuer with respect to qualified immunity is consistent with Mr. Chief Justice Warren's opinion for the Court in Pierson v. Ray, 386 U.S. 547 (1967), where it was said: "If the jury believed the testimony of the officers and disbelieved that of the ministers, and if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact unconstitutional." Id., at 557.

As in Scheuer, the standard prescribed is one of acting in good faith in accordance with reasonable belief that the action was lawful and justified. Not even police officers were held liable for ignorance of "settled, indisputable law." (Back)

12 Although some of the items of correspondence with which respondent claims interference concerned legal matters or were addressed to lawyers, respondent is foreclosed from asserting any claim with respect to mail interference based on infringement of his right of access to the courts because such a claim was dismissed with prejudice in an earlier phase of this case. Order of Feb. 9, 1973, No. C-72-1954 SW (ND Cal.). In his Points and Authorities Against Motion to Dismiss filed in connection with the present complaint on April 17, 1974, respondent stated that "[t]he claim against mail interference does not purport to allege denial of access to the courts," and explained that "[i]n ruling on defendants' previous Motion to Dismiss, in February, 1973, this Court dismissed plaintiff's claim against mail interference insofar as it alleged denial of access to the courts." Record 171. (Back)

13 There is thus no occasion to address this case on the assumption that Navarette's mailing privileges were protected by a constitutional rule of which petitioners could reasonably have been expected to be aware in 1971 and 1972 and to inquire whether petitioners knew or should have known that their conduct was in violation of that constitutional proscription. (Back)

14 Because of the disposition of this case on immunity grounds, we do not address petitioners' other submissions: that § 1983 does not afford a remedy for negligent deprivation of constitutional rights and that state prisoners have no First and Fourteenth Amendment rights in their outgoing mail. (Back)

1Thus, in Wood v. Strickland, 420 U.S. 308, 322, the Court stated: "Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student." (Emphasis added.) (Back)

2 In Imbler v. Pachtman, 424 U.S. 409, 421, the Court stated:

“As noted above, our earlier decisions on § 1983 immunities were not products of judicial fiat that officials in different branches of government are differently amenable to suit under § 1983. Rather, each was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.”

3 Perhaps with good reason, see Whirl v. Kern, 407 F. 2d 781, 791-792 (CA5 1969), the Court does not consult the common law to gauge the scope of a jailer's immunity. Cf. Imbler v. Pachtman, supra, at 421; Wood v. Strickland, supra, at 318. Instead, the Court seems to rely on an unarticulated notion that prison administrators deserve as much immunity as Governors, school administrators, hospital administrators, and policemen. Ante, at 561, and n. 7. The Court also elides any distinction between discretionary and ministerial tasks. Cf. Scheuer v. Rhodes, 416 U.S. 232, 247. One defendant in this case was joined simply because he "was in charge of handling incoming and outgoing prisoner mail." Although the scope of this defendant's duties is not clear, he may well have been performing wholly ministerial chores, such as bagging and delivering prison mail. By allowing summary judgment in his favor, the Court strongly suggests that the nature of his job is irrelevant to whether he should have a good-faith immunity. (Back)

10The first of these statutes, 5 U. S. C. § 7211 (1976 ed., Supp. IV), provides generally that "[the] right of employees … to … furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied." The second, 18 U. S. C. § 1505, is a criminal statute making it a crime to obstruct congressional testimony. Neither expressly creates a private right to sue for damages. Petitioners argue that the District Court erred in finding that a private cause of action could be inferred under either statute, and that "special factors" present in the context of the federal employer-employee relationship preclude the recognition of respondent's Bivens action under the First Amendment. The legal sufficiency of respondent's asserted causes of action is not, however, a question that we view as properly presented for our decision in the present posture of this case. See n. 36, infra. (Back)

30This case involves no issue concerning the elements of the immunity available to state officials sued for constitutional violations under 42 U. S. C. § 1983. We have found previously, however, that it would be "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S., at 504.

Our decision in no way diminishes the absolute immunity currently available to officials whose functions have been held to require a protection of this scope. (Back)

31This case involves no claim that Congress has expressed its intent to impose "no fault" tort liability on high federal officials for violations of particular statutes or the Constitution. (Back)

32As in Procunier v. Navarette, 434 U.S., at 565, we need not define here the circumstances under which "the state of the law" should be "evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court." (Back)

34 We emphasize that our decision applies only to suits for civil damages arising from actions within the scope of an official's duties and in "objective" good faith. We express no view as to the conditions in which injunctive or declaratory relief might be available. (Back)

6These regulations specified in pertinent part:

“Upon receiving a report of … a violation of Department or Division rules and regulations…, the Director shall order a complete investigation to determine the true facts concerning the circumstances surrounding the alleged offense. The completed investigation report will also contain a written statement made by the employee against whom the complaint was made. If after a thorough study of all information concerning the violation, the Director decides that a … dismissal will be in order, he will present the employee in writing with the reason or reasons for such actions.” General Order No. 43, § 1.C (Sept. 1, 1977), quoted at 543 F.Supp., at 19-20. (Back)

7The Florida civil service statute now in force replaced the statute under which appellee's employment was terminated. As the current state statute was never applied to appellee, he lacks standing to question its constitutionality. Cf. Golden v. Zwickler, 394 U.S. 103 (1969).

Appellee's concession does not deprive the Court of appellate jurisdiction over the remaining issue in the case. In cases where the Court of Appeals has declared a state statute unconstitutional, this Court may decide the "Federal questions presented," 28 U. S. C. § 1254(2). Cf. Flournoy v. Wiener, 321 U.S. 253, 263 (1944); Leroy v. Great Western United Corp., 443 U.S. 173 (1979). Under § 1254(2), the Court retains discretion to decline to consider those issues in the case not related to the declaration that the state statute is invalid. In the present case, however, we choose to consider the important question whether the District Court and the Court of Appeals properly denied appellants' good-faith immunity from suit. (Back)

8 As we discuss below, it is contested whether these constitutional rights were clearly established at the time of appellants' conduct. (Back)

9We see no reason to doubt, as does the partial dissent, that the Court of Appeals in Weisbrod had full knowledge of its own precedents and correctly construed them. (Back)

10As the partial dissent explains at some length, the decisions of this Court by 1978 had required "some kind of a hearing," Board of Regents v. Roth, 408 U.S. 564, 570, n. 7 (1972), prior to discharge of an employee who had a constitutionally protected property interest in his employment. But the Court had not determined what kind of a hearing must be provided. Such a determination would require a careful balancing of the competing interests -- of the employee and the State -- implicated in the official decision at issue. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). As the Court had considered circumstances in which no hearing at all had been provided prior to termination, Perry v. Sindermann, 408 U.S. 593 (1972), or in which the requirements of due process were met, Board of Regents v. Roth, supra; Arnett v. Kennedy, 416 U.S. 134 (1974); Bishop v. Wood, 426 U.S. 341 (1976); Bishop v. WoodCodd v. Velger, 429 U.S. 624 (1977), there had been no occasion to specify any minimally acceptable procedures for termination of employment. The partial dissent cites no case establishing that appellee was entitled to more elaborate notice, or a more formal opportunity to respond, than he in fact received. (Back)

11State law may bear upon a claim under the Due Process Clause when the property interests protected by the Fourteenth Amendment are created by state law. See Board of Regents v. Roth, supra, at 577. Appellee's property interest in his job under Florida law is undisputed. Appellee does not contend here that the procedural rules in state law govern the constitutional analysis of what process was due to him under the Fourteenth Amendment. (Back)

12 In Harlow, the Court acknowledged that officials may lose their immunity by violating "clearly established statutory . . . rights." 457 U.S., at 818. This is the case where the plaintiff seeks to recover damages for violation of those statutory rights, as in Harlow itself, see id., at 820, n. 36, and as in many § 1983 suits, see, e. g., Maine v. Thiboutot, 448 U.S. 1 (1980) (holding that § 1983 creates cause of action against state officials for violating federal statutes). For the reasons that we discuss, officials sued for violations of rights conferred by a statute or regulation, like officials sued for violation of constitutional rights, do not forfeit their immunity by violating some other statute or regulation. Rather, these officials become liable for damages only to the extent that there is a clear violation of the statutory rights that give rise to the cause of action for damages. And if a statute or regulation does give rise to a cause of action for damages, clear violation of the statute or regulation forfeits immunity only with respect to damages caused by that violation. In the present case, as we have noted, there is no claim that the state regulation itself or the laws that authorized its promulgation create a cause of action for damages or provide the basis for an action brought under § 1983.

Harlow was a suit against federal, not state, officials. But our cases have recognized that the same qualified immunity rules apply in suits against state officers under § 1983 and in suits against federal officers under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). See Butz v. Economou, 438 U.S., at 504. Neither federal nor state officials lose their immunity by violating the clear command of a statute or regulation -- of federal or of state law -- unless that statute or regulation provides the basis for the cause of action sued upon. (Back)

13 Officials would be required not only to know the applicable regulations, but also to understand the intent with which each regulation was adopted. Such an understanding often eludes even trained lawyers with full access to the relevant legislative or administrative materials. It is unfair and impracticable to require such an understanding of public officials generally. (Back)

14 Appellee urges as well that appellants' violation of the personnel regulation constituted breach of their "ministerial" duty -- established by the regulation -- to follow various procedures before terminating appellee's employment. Although the decision to discharge an employee clearly is discretionary, appellee reasons that the Highway Patrol regulation deprived appellants of all discretion in determining what procedures were to be followed prior to discharge. Under this view, the Harlow standard is inapposite because this Court's doctrine grants qualified immunity to officials in the performance of discretionary, but not ministerial, functions.

Appellee's contention mistakes the scope of the "ministerial duty" exception to qualified immunity in two respects. First, as we have discussed, breach of a legal duty created by the personnel regulation would forfeit official immunity only if that breach itself gave rise to the appellee's cause of action for damages. This principle equally applies whether the regulation created discretionary or ministerial duties. Even if the personnel regulation did create a ministerial duty, appellee makes no claim that he is entitled to damages simply because the regulation was violated. See supra, at 193-194, and n. 12.

In any event, the rules that purportedly established appellants' "ministerial" duties in the present case left to appellants a substantial measure of discretion. Cf. Amy v. The Supervisors , 78 U.S. 136, 138 (1871); Kendall v. Stokes, 44 U.S. 97, 98 (1845). Appellants were to determine, for example, what constituted a "complete investigation" and a "thorough study of all information" sufficient to justify a decision to terminate appellee's employment. See n. 6, supra. And the District Court's finding that appellants ignored a clear legal command does not bear on the "ministerial" nature of appellants' duties. A law that fails to specify the precise action that the official must take in each instance creates only discretionary authority; and that authority remains discretionary however egregiously it is abused. Cf. Kendall v. Stokes, supra. (Back)

2Because I believe appellants were not entitled to qualified immunity under the standards set forth in Harlow v. Fitzgerald, 457 U.S. 800 (1982), I need not consider whether, as appellee contends, violation of the department regulation would defeat immunity for violating federal rights of which the officials had no reasonable knowledge. It seems plain to me, however, that the existence of the regulation is relevant to the Harlow analysis. Regardless of whether this Court or the Court of Appeals now thinks appellee's right to pretermination notice and hearing was not "clearly established" in 1977, the presence of a clear-cut regulation obviously intended to safeguard public employees' constitutional rights certainly suggests that appellants had reason to believe they were depriving appellee of due process. Cf. Harlow, supra, at 821 (Brennan, J., concurring). Such an objective basis of knowledge provides at least as reliable a measure of the reasonableness of official action as does a court's post hoc parsing of cases. See 457 U.S., at 815-819. (Back)

2The dissent, which seemingly would adopt this approach, seeks to avoid the unqualified liability that would follow by advancing the suggestion that officials generally (though not law enforcement officials, see post, at 654, 661-662, and officials accused of violating the Fourth Amendment, see post, at 659-667) be permitted to raise a defense of reasonable good faith, which apparently could be asserted and proved only at trial. See post, at 653. But even when so modified (and even for the fortunate officials to whom the modification applies) the approach would totally abandon the concern -- which was the driving force behind Harlow's substantial reformulation of qualified-immunity principles -- that "insubstantial claims" against government officials be resolved prior to discovery and on summary judgment if possible. Harlow, 457 U.S., at 818-819. A passably clever plaintiff would always be able to identify an abstract clearly established right that the defendant could be alleged to have violated, and the good-faith defense envisioned by the dissent would be available only at trial. (Back)

6 Noting that no discovery has yet taken place, the Creightons renew their argument that, whatever the appropriate qualified immunity standard, some discovery would be required before Anderson's summary judgment motion could be granted. We think the matter somewhat more complicated. One of the purposes of the Harlow qualified immunity standard is to protect public officials from the "broad-ranging discovery" that can be "peculiarly disruptive of effective government." 457 U.S., at 817 (footnote omitted). For this reason, we have emphasized that qualified immunity questions should be resolved at the earliest possible stage of a litigation. Id., at 818. See also Mitchell v. Forsyth, 472 U.S. 511, 526 (1986). Thus, on remand, it should first be determined whether the actions the Creightons allege Anderson to have taken are actions that a reasonable officer could have believed lawful. If they are, then Anderson is entitled to dismissal prior to discovery. Cf. ibid. If they are not, and if the actions Anderson claims he took are different from those the Creightons allege (and are actions that a reasonable officer could have believed lawful), then discovery may be necessary before Anderson's motion for summary judgment on qualified immunity grounds can be resolved. Of course, any such discovery should be tailored specifically to the question of Anderson's qualified immunity. (Back)

3 "If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful." Harlow, 457 U.S., at 818. Logically, this reasoning does not extend to cases such as this one in which both the constitutional command and an exception to the rule for conduct that responds to a narrowly defined category of factual situations are clearly established, and the dispute is whether the situation that the officer confronted fits within the category. (Back)

12The Harlow standard of qualified immunity precludes a plaintiff from alleging the official's malice in order to defeat a qualified-immunity defense. By adopting a purely objective standard, however, Harlow may be inapplicable in at least two types of cases. In the first, the plaintiff can only obtain damages if the official's culpable state of mind is established. See, e. g., Allen v. Scribner, 812 F.2d 426, 436 (CA9 1987); Note, Qualified Immunity for Government Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation, 95 Yale L. J. 126, 136-137 (1985). In the second, an official's conduct is not susceptible to a determination that it violated clearly established law because it is regulated by an extremely general and deeply entrenched norm, such as the command of due process or probable cause. The principle is clearly established, but whether it would brand the official's planned conduct as illegal often cannot be ascertained without reference to facts that may be in dispute. See Reardon v. Wroan, 811 F.2d 1025 (CA7 1987) (police officers denied qualified immunity on summary judgment because their conclusion of probable cause could be found objectively unreasonable when the facts are viewed in light most favorable to the plaintiffs); Jasinski v. Adams, 781 F.2d 843 (CA11 1986) (per curiam) (federal agent denied qualified immunity on summary judgment because of genuine issue of probable cause); Deary v. Three UnNamed Police Officers, 746 F.2d 185 (CA3 1984) (police officers denied qualified immunity on summary judgment because of genuine issue of probable cause). (Back)

2The court also suggested that Mitchell should have been put on notice that his act was unlawful by Title III, which, in its view, clearly proscribed such warrantless wiretaps. (Back)

5The First, Eighth, and District of Columbia Circuits have held such orders appealable, see Krohn v. United States, 742 F.2d 24 (CA1 1984); Evans v. Dillahunty, 711 F.2d 828 (CA8 1983); McSurely v. McClellan, 225 U. S. App. D. C. 67, 697 F.2d 309 (1982), while the Fifth and Seventh Circuits have joined the Third Circuit in holding that the courts of appeals lack jurisdiction over interlocutory appeals of qualified immunity rulings, see Kenyatta v. Moore, 744 F.2d 1179 (CA5 1984); Lightner v. Jones, 752 F.2d 1251 (CA7 1985). The Fourth Circuit has held that a district court's denial of qualified immunity is not appealable when the plaintiff's action involves claims for injunctive relief that will have to be adjudicated regardless of the resolution of any damages claims. England v. Rockefeller, 739 F.2d 140 (1984); Bever v. Gilbertson, 724 F.2d 1083, cert. denied, 469 U.S. 948 (1984). Because this case does not involve a claim for injunctive relief, the propriety of the Fourth Circuit's approach is not before us, and we express no opinion on the question. (Back)

7It is true that damages actions are not the only conceivable deterrents to constitutional violations by the Attorney General. Mitchell suggests, for example, the possibility of declaratory or injunctive relief and the use of the exclusionary rule to prevent the admission of illegally seized evidence in criminal proceedings. However, as Justice Harlan pointed out in his concurring opinion in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 398-411 (1971), such remedies are useless where a citizen not accused of any crime has been subjected to a completed constitutional violation: in such cases, "it is damages or nothing." Id., at 410. Other possibilities mentioned by Mitchell -- including criminal prosecution and impeachment of the Attorney General -- would be of dubious value for deterring all but the most flagrant constitutional violations. (Back)

9We emphasize at this point that the appealable issue is a purely legal one: whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law. (Back)

12We do not intend to suggest that an official is always immune from liability or suit for a warrantless search merely because the warrant requirement has never explicitly been held to apply to a search conducted in identical circumstances. But in cases where there is a legitimate question whether an exception to the warrant requirement exists, it cannot be said that a warrantless search violates clearly established law. (Back)

9It also imposes costs on the defendant officials and the public. Those who pursue interlocutory appeals can be expected ordinarily to lose. See Richardson-Merrell Inc. v. Koller, ante, p. 424. Permitting an interlocutory appeal will thus in most cases merely divert officials from their duties for an even longer time than if no such appeals were available. (Back)