III. Liability of State and Local Governmenent Officials: Immunities

A. Absolute Immunity

Pierson v. Ray

FREEDOM RIDERS MOVIE CLIP

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, 380 U.S. 524 (1965).⁴ 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,.⁵ 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..⁶

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, 80 U.S. 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, 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.

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, 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.

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."² 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.⁴

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.⁶

The plight of the oppressed is indeed serious. Under City of Greenwood v. Peacock, 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.

Pierson v. Ray -- AUDIO Oral Argument Transcript

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, 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, 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 397-398, 77 L.Ed. 375. See also Clea v. Mayor and City Council of Baltimore, 541 A. 2d 1303, 1314 (Md. 1988)("[W]ith regard to clothing a public official with a degree of governmental immunity, there are sound reasons to distinguish actions to remedy constitutional violations from ordinary tort suits. The purpose of an . . . ordinary tort action is not to specifically to protect individuals against government officials or to restrain government officials. . . On the other hand, constitutional provisions like . . . the Maryland Declaration of Rights . . . are specifically designed to protect citizens against certain types of unlawful acts by government officials. To accord immunity to the responsible government officials, and leave an individual remediless when his constitutional rights are violated, would be inconsistent with the purpose of constitutional provisions.").
   
   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, 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., 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, 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?
      
      
      1. In Antoine v. Byers, 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.
      2. 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. Plaintiff Charles Rehberg, a certified public accountant, sent a series of anonymous faxes criticizing the management of a hospital in Georgia. The district attorney's office, and its chief investigator James Paulk, initiated a criminal investigation of Rehberg, allegedly as a favor to the leadership of the hospital. Paulk testified before a grand jury on three separate occasions; in each instance, the grand jury issued an indictment that subsequently was dismissed. Rehberg filed a Section 1983 action against Paulk, alleging that Paulk conspired to present and presented false testimony to the grand jury.
         
         Rehberg contended that because complaining witnesses were not entitled to absolute immunity at common law, Paulk was not absolutely immune from liability under Section 1983. The Court rejected the argument: While the Court has looked to the common law in determining the scope of the absolute immunity available under §1983, the Court has not suggested that §1983 is simply a federalized amalgamation of pre-existing common law claims. . . . The new federal claim created by §1983 differs in important ways from those pre-existing torts. It is broader in that it reaches constitutional and statutory violations that do not correspond to any previously known tort. But it is narrower in that it applies only to tortfeasors who act under color of state law. . . .Thus, both the scope of the new tort and the scope of the absolute immunity available in §1983 actions differ in some respects from the common law. Rehberg v. Paulk, 132 S. Ct. 1497, 1505 (2012). The court reasoned that when Congress enacted Section 1983, a "complaining witness" was the person who procured an arrest and initiated a prosecution, without necessarily testifying against the accused. After 1871, those functions were performed by the prosecutor. Thus it would be "anomalous to permit a police officer who testifies before a grand jury to be sued for maliciously procuring an unjust prosecution when it is the prosecutor, who is shielded by absolute immunity, who is actually responsible for the decision to prosecute." Id. at 1508.
4. In Stump v. Sparkman , 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 , 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, 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, 127 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, 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 , 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, 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 Pulliam v. Allen, 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, 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, Title III, 309(c), Oct. 19, 1996, 110 Stat. 3853
7. In Olivia v. Heller, 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.
8. Prosecutors possess absolute immunity for initiating prosecutions and presenting the government's case, Imbler v. Pachtman, 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 , 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. See also Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009)(supervising prosecutor has absolute immunity against claim that a) failure to properly train and supervise subordinate prosecutors, and b) failure to establish information system containing potential impeachment materials about informant, caused prosecution to fail to turn over evidence that its witness previously had been rewarded for giving testimony favorable to prosecution. Although challenged actions were "administrative," they require legal knowledge and are directly connected to the prosecutors' trial advocacy duties).
   2. In Buckley v. Fitzsimmons, 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. InKalina v. Fletcher , 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?
9. 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, 523 U.S. 44 (1998);Supreme Court of Virginia v. Consumers Union of the UnitedStates,, 446 U.S. 719, 731-32 (1980); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 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, 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.")
10. 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,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 , 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, 475 U.S. 335 (1986).
11. 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., 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, 449 U.S. 24 (1980).

B. Qualified Immunity Test

Wood v. Strickland

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, 415 U.S. 528, 549 (1974).⁶ 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,341 U.S. 367 (1951), the question was found to be one essentially of statutory construction.⁸ 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 376, was absolute and consequently did not depend upon the motivations of the legislators. In Pierson v. Ray , 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 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:

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 , 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.¹¹

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.¹² 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.

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:

The Court of Appeals interpreted the school regulation prohibiting the use or possession of intoxicating beverages as being linked to the definition of "intoxicating liquor" under Arkansas statutes which restrict the term to beverages with an alcoholic contend exceeding 5% weight. Testimony at the trial, however, established convincingly that the term "intoxicating beverage" in the school regulation was not intended at the time of its adoption in 1967 to be linked to the definition in the state statutes or to any other technical definition of "intoxicating." The adoption of the regulation was at a time when the school board was concerned with a previous beer-drinking episode. It was applied prior to respondents' case to another student charged with possession of beer. In its statement of facts issued prior to the onset of this litigation, the school board expressed its construction of the regulation by finding that the girls had brought an "alcoholic beverage" onto school premises. The girls themselves admitted knowing at the time of the incident that they were doing something wrong which might be punished. In light of this evidence, the Court of Appeals was ill advised to supplant the interpretation of the regulation of those officers who adopted it and are entrusted with its enforcement.

When the regulation is construed to prohibit the use and possession of beverages containing alcohol, there was no absence of evidence before the school board to prove the charge against respondents. The girls had admitted that they intended to "spike" the punch and that they had mixed malt liquor into the punch that was served. The third girl estimated at the time of their admissions to Waller that the malt liquor had an alcohol content of 20%. After the expulsion decision had been made and this litigation had begun, it was conclusively determined that the malt liquor in fact has an alcohol content not exceeding 3.2% by weight. Testimony at trial put the alcohol content of the punch served at 0.9%.

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, 393 U.S. 503 (1969); West Virginia State Board of Education v. Barnette , 319 U.S. 624 (1943); Goss v. Lopez , 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 , 393 U.S. 97, 104 (1968); Tinker, 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.

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.²

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 , 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 , 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:

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.⁴ 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 -- AUDIO Oral Argument Transcript

Wood v. Strickland PRINT Oral Argument Transcript

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, 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?
   
6. Neither the district court nor the court of appeals addressed whether the test for qualified immunity should be adjusted to render the state of the law a signature element. Because the district court believed immunity is governed by a purely subjective good-faith test, it had no cause to assess whether to single out the state of the law under the objective prong. Strickland & Crain v. Inlow, 348 F. Supp. 244, 250-54 (W.D. Ark. 1972). While holding immunity is to be gauged by a purely objective standard, the court of appeals applied the test the Supreme Court set forth in Scheuer v. Rhodes-the school board members would be immune only if "in light of all the circumstances, [they] act[ed] in good faith." Strickland v. Inlow, 485 F.2d 186, 191 (8th Cir. 1973). The court of appeals then remanded the case to the district court for a new trial against the school board members under the Scheuer test.
   
   Neither party asked the Supreme Court to alter the immunity test to condition immunity on the clarity of the law. During oral argument, the board members' counsel conceded that Scheuer v. Rhodes supplied the applicable immunity standard. Transcript of Oral Argument, at 11, Wood v. Strickland, 420 U.S. 308 (1975) (No. 73-1285). At no juncture did defendants' counsel suggest there was any ambiguity in the law regarding due process that should affect the immunity analysis. Rather, counsel argued that the board members should be immune under Scheuer because the district court had found 'School Board members had reasonable grounds to believe that their regulation had been violated.' Id.
   
   Likewise, plaintiffs never contended that the state of the law should inform or be determinative of immunity. Instead, plaintiffs relied upon the factual deficiencies in the procedures that gave rise to the Board's suspension of the students to demonstrate the school board members did not act objectively in good faith. Brief for Respondents at 46, Wood, 420 U.S. 308 (No. 73-1285).
   
   Having held that the school board members did not violate the substantive due process rights of the students, the Court had no occasion to address qualified immunity on that claim. The Court remanded the case for consideration of whether the officials violated the students' procedural due process rights, an issue not addressed by the district court or court of appeals. The Court did not suggest the law governing procedural due process was unsettled. To the contrary, the Court noted, "Over the past 13 years the Courts of Appeals have without exception held that procedural due process requirements must be satisifed if a student is to be expelled." Wood, 420 U.S. at 324 n. 15.
   
   Why, then, did the Court interject the clarity of the state of the law into the immunity analysis?

Procunier v. Navarette

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, 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, 341 U.S. 367 (1951); Pierson v. Ray, 386 U.S. 547 (1967); Imbler v. Pachtman, 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, 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, 422 U.S. 563 (1975); and of policemen, Pierson v. Ray, supra; see Imbler v. Pachtman, 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, 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 1971-1972.¹² 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 322.¹³

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.¹⁴

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

Today's decision, coupled with O'Connor v. Donaldson, 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,¹ 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.² 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.³

Procunier v. Navarette -- AUDIO Oral Argument Transcript

Procunier v. Navarette PRINT Oral Argument Transcript

Notes on Procunier v. Navarette

a. Which Officials are Entitled to Assert Qualified Immunity?

1. The district court in Procunier granted summary judgment to the prison officials without issuing an opinion. The court of appeals reversed. The court held that qualified immunity is not to be extended automatically to all public officials who are not sheltered by absolute immunity. Instead, the court of appeals reasoned, prison officials could assert qualified immunity only if there existed a common law tradition of immunity for prison officials and such immunity was supported by public policy. The court of appeals instructed the district court to determine on remand whether, under this standard, prison officials were entitled to invoke the immunity defense. Navarette v. Enomoto, 536 F. 2d 277, 280 (9th Cir. 1976). On what basis does the Procunier Court find prison officials may avail themselves of the qualified immunity?
   
   
2. In Tower v. Glover , 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, 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, 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 , 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 , 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.")
   
3. In Richardson v. McKnight , 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.
   
   
4. In Filarski v. Delia, 132 S. Ct. 1657 (2012), the court of appeals that held a private lawyer, who had been hired by the City of Rialto to investigate whether a city firefighter was misusing his medical leave to perform construction on his home, could not assert qualified immunity. The Supreme Court reversed, finding that in the mid 1800s, private individuals performed many governmental functions on a part-time or episodic basis. The common law extended the same immunity to individuals working part-time for the government as was available to full-time employees executing the same responsibilities. Therefore, the Court reasoned, "immunity under §1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis.” Id. at 1665. The Court distinguished Richardson v. McKnight, 521 U.S. 399 (1997) as follows: Richardson was a self-consciously "narrow decision.” . . . [T]he Court emphasized that the particular circumstances of that case–"a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertak[ing] that task for profit and potentially in competition with other firms”–combined sufficiently to mitigate the concerns underlying recognition of governmental immunity under §1983. Nothing of the sort is involved here, or in the typical case of an individual hired by the government to assist in carrying out its work. Id. at 1667.
5. 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, 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")

b. The Qualified Immunity Standard?

6. California prison regulations permitted prison officials to bar mailings "that pertain to criminal activity; are lewd, obscene or defamatory; contain prison gossip or discussion of other inmates; or are otherwise inappropriate." The same regulation prohibited prison officials from interfering with correspondence between the inmate and his attorney. Procunier, 434 U.S. at 558 n.3. Contrary to the regulation, the warden asserted officials could confiscate any inmate mail, including legal correspondence, "if we don't feel it is right or necessary." Id. Navarette submitted affidavits contradicting the officials' conclusory contention that they had acted with the good faith belief that they were abiding by prison mail regulations. The court of appeals found there was a dispute of material fact as to whether prison officials harbored a reasonable and good faith belief that their conduct was lawful and complied with regulations. The court of appeals' immunity analysis did not assess whether the constitutional right was clearly established or posit the implications for the defense if the right were or were not settled.
   
   In addressing whether Congress intended to extend Section 1983 to claims for negligent deprivations of constitutional rights-the lone question on which the Court granted certiorari-the briefs of the parties drew support for their respective positions by analogizing to the Court's qualified immunity decisions. See Brief for Petitioners at 12-13, Procunier, 434 U.S. 555 (No, 76-446)(arguing that immunity test set forth in Pierson and Wood demonstrate Section 1983 is limited to intentional conduct); Brief for Respondent 20-27 and Brief for the American Civil Liberties Union as Amicus Curiae Supporting Respondents at 10, 14-15, Procunier, 434 U.S. 555 (No. 76-446)(averring that qualified immunity cases support liability for objectively unreasonable deprivations). However, neither party addressed a) whether the state of the law should be dispositive of the immunity defense; or b) whether public officials should be permitted to offer evidence of the reasonableness of their actions where the right was clearly established while plaintiff is precluded from offering evidence of the unreasonableness of official action when the right was not settled.
   
   
   1. Does Procunier purport to overrule or modify Wood v. Strickland? Does the test for the objective tier of the immunity defined by Justice White in Procunier differ from the standard he set forth in Wood? Was the issue of amending the immunity standard properly before the Court? Did the Court have the power to change the test for immunity?
   2. After Procunier, is the objective tier satisfied by the officials as a matter of law whenever the right violated was not "clearly established?" Could the prison officials' belief in the propriety of their refusal to mail Navarette's legal correspondence have been unreasonable even if was not "clearly established" that the First Amendment protected Navarette's right to send letters to his attorney? Should an official be freed from Section 1983 liability for conduct that is unreasonable under all the circumstances whenever it was not also "clearly established" that her actions would violate the Constitution?
   3. Is the official automatically deprived of immunity where the constitutional right violated was clearly established?" May the official successfully assert immunity, even where the right was clearly established, if his conduct was reasonable under all the circumstances? Did the Procunier Court have any reason to address this issue? Can the Court's test for immunity where the right was clearly established be reconciled with the Court's treatment of immunity where the right was not clearly established?"

Harlow v. Fitzgerald

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. § 1505.¹⁰ 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, 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, 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 , 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 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 322.³⁰

Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law,³¹ 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.³² 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).³⁴

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 , 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).

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.

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.

Nixon v. Fitzgerald and Harlow v. Fitzgerald AUDIO Oral Argument Transcript

Nixon v. Fitzgerald and Harlow v. Fitzgerald PRINT Oral Argument Transcript

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. In their brief to the Court, defendants did not ask the Court to stay discovery or to abandon the common law requirement that an official must subjectively act in good faith to be immune. Rather, defendants asked the Court to heighten the evidentiary burden plaintiff would have to meet to establish a dispute of material fact as to subjective prong of the immunity defense. Defendants submitted that after discovery, the plaintiff should be required to present sufficient evidence of bad faith to satisfy either a preponderance of the evidence or clear and convincing evidence standard in order to survive a motion for summary judgment. Brief for the Petitioners at 79, Harlow, 457 U.S. 800 (1982)(Nos. 79-1738, 80-945).
   
   During oral argument, counsel reiterated that defendants were urging the Court to require plaintiffs to prove malice by a standard that was more demanding than preponderance of the evidence. Transcript of Oral Argument at 14, Harlow v. Fitzgerald, 457 U.S. 800 (Nos. 79-1738, 80-945), available at 1981 U.S. Trans. LEXIS 17. Counsel argued that the Court could "significantly reduce the number of cases that would have to go to trial and increase the number in which a motion for summary judgment was granted" if the Court were "to enjoin upon the lower courts close scrutiny of allegations of malice, applying the two standards of Wood against Strickland." Id. at 20 (emphasis supplied).
   
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, 64 Cornell L. Rev. 667, 694 (1979). The remaining 131 cases were disposed of on the following grounds:
   
   

   No meritorious claim		40
   No Bivens-type cause of action		8
   No constitutional violation		32
   Grounds unrelated to merits		89
   Proper defendant problems		18
   Improper personal jurisdiction
   or service of process		12
   Insufficient jurisdictional amount		5
   Statute of limitations bar		3
   Sovereign immunity bar		26
   Individual immunity bar		51
   Other		4
   Relationship to merits unknown		21
   General verdict by jury		3
   Insufficient pleadings		9
   Other		9
   Total judgments for defendants		131

   
   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, 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 Courts, 92 Harv. L. Rev. 610, 624 (1979). The Court subsequently relied on this study in Cleavinger v. Saxner , 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, 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, 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. The most recent empirical inquiry evaluated claims of constitutional violations filed against federal officials in five district courts between 2001 and 2003. Alex Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 Stan. L. Rev. 809 (2010). The study assumed that plaintiffs won not only in cases resolved by a favorable judgment, but also prevailed in cases disposed of by settlement, voluntary dismissal, and stipulated dismissal. Using this measure, the raw data revealed that plaintiffs succeeded in approximately 16% of the roughly 250 Bivens actions with final dispositions. However, for cases where the claims were not dismissed sua sponte and defendant filed a motion or answer, plaintiffs' success rate rose to 30%. Id. at 837-41.
      
      The study revealed the following as to the qualified immunity defense: [T]he data provide important information about the role that the qualified immunity defense plays in the outcome of Bivens cases . . . Although defendants made arguments based on qualified immunity in some of the cases examined, the defense was a basis for a dismissal in only five out of the 244 complaints studied. Dismissal on the merits, for frivolity, and for failure to exhaust administrative remedies were the most common grounds for terminating a case. Dismissals for lack of subject matter jurisdiction were more common than dismissals on qualified immunity grounds.
      These data suggest that the qualified immunity defense is of minimal importance in regulating Bivens, at least as to filed cases. If the data are replicated elsewhere, it suggests that the doctrine of qualified immunity is of greater symbolic than practical importance. Id. at 843-44. Prof. Reinert acknowledged that there were other possible explanations for the insignificant statistical role that the immunity defense played: [I]t is possible that the vast majority of Bivens cases involve disputes over well-established law, such that there are limited opportunities for defendants to raise qualified immunity as a defense. It is also possible that immunity is operating in the background in those cases which are dismissed for being frivolous. Relatedly, it may be that judges apply a modified doctrine of constitutional avoidance where there is a way of resolving cases without relying on qualified immunity. Finally, and most troubling, it may be that the prospect of qualified immunity deters lawyers from accepting the most difficult Bivens cases, thus operating as an unseen thumb on the scale in favor of maintaining the legal status quo. Id. at 844.
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, 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, 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 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 judgement 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.")
   
7. 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, 459 U.S. 1115 (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, 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, 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, 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, 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, 38 Emory L.J. 369 (1989).
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, 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, 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, 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." Britton, 523 U.S. at 599-600.

C. When is a Right Clearly Established?

Davis v. Scherer

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.

I * * * * *

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, 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, 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 20.⁶ 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.⁷

In the present posture of this case, the District Court's decision that appellants violated appellee's rights under the Fourteenth Amendment is undisputed.⁸ 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, 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, 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.⁹

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.¹⁰ 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.¹²

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, 416 U.S., at 246.¹⁴

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.

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, 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., 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, 350 U.S. 551 (1956); Wieman v. Updegraff, 344 U.S. 183 (1952); see"Board of Regents v. Roth, 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, 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, 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, 254 U.S. 554, 566; Phillips v. Commissioner , 283 U.S. 589, 597; Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594."Board of Regents v. Roth, 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, 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:

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:

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.² The regulation, which has the force of statutory law, see 543 F.Supp., at 20, provides in pertinent part:

The Court ignores most of this evidence demonstrating the objective unreasonableness of appellants' conduct. Instead, the Court relies first on Weisbrod v. Donigan, 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 -- AUDIO Oral Argument Transcript

Davis v. Scherer PRINT Oral Argument Transcript

Notes on Davis v. Scherer

a. The Qualified Immunity Test

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?

b. Sources of Law Relevant to Wether the Right Violated was Clearly Established

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?
   
   
   1. 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, 651 F.2d 334 (5th Cir. 1981). The entirety of the Fifth Circuit's reasoning in Weisbrod is as follows:
      
      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.
      
      Why didn't the Weisbrod court consider Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976), vacated and remanded on other grounds, 438 U.S. 901 (1978), 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, 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.").
      
   2. 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, 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."
      
   3. In determining whether a right is clearly established, is the court limited to considering the cases cited by the parties? In Elder v. Holloway, 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?
3. What sources of law may a court consult if there are no relevant decisions of the Supreme Court or controlling court of appeals?
   
   
   1. May the court consider cases from the state supreme court? See Courson v. McMillian, 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.")
   2. May district court decisions render a right clearly established? In Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) Ashcroft v. al-Kidd, 131 S.Ct. 2074 (2011), the court of appeals held that Attorney General Ashcroft violated clearly established law by authorizing law enforcement officials to use the federal material witness statute as a pretext to detain individuals suspected of links to terrorist organizations. The court of appeals reasoned that Attorney General Ashcroft had fair warning that his conduct violated the Fourth Amendment because of a footnote in a district court opinion. That footnote expressly repudiated the legality of Ashcroft's reported statements advocating aggressive use of the material witness statute to prevent new acts of terrorism. The court of appeals reasoned that the footnote "was categorical, and it addressed exactly what al-Kidd alleges happened ten months after the opinion was first issued." al-Kidd v. Ashcroft, 580 F.3d 949, 972 (8th Cir. 2009).
      
      The Supreme Court reversed, holding Ashcroft was entitled to qualified immunity. The Court rejected the court of appeals' reliance on the district court opinion: We will indulge the assumption (though it does not seem to us realistic) that the Justice Department lawyers bring to the Attorney General's personal attention all district judges' footnoted specifications that boldly "call him out by name." On that assumption, would it prove that for him (and for him only?) it became clearly established that pretextual use of the material-witness statute rendered the arrest constitutional? An extraordinary proposition. Even a district judge's ipse dixit of a holding is not "controlling authority" in any jurisdiction, much less in the entire United States; and his ipse dixit of a footnoted dictum falls far short of what is necessary absent controlling authority: a robust "consensus of cases of persuasive authority." Ashcroft, 131 S.Ct. at 2084. In a concurring opinion, Justice Kennedy asserted that the stature of the office was relevant to whether case law in a single district could clearly establish a right: Some federal officers perform their functions in a single jurisdiction, say within the confines of one state or one federal district. They "reasonably can anticipate when their conduct may give rise to liability for damages" and so are expected to adjust their behavior in accordance with local precedent. In contrast, the Attorney General occupies a national office and so sets policies implemented in many jurisdictions throughout the country. * * * * * A national officeholder intent on retaining qualified immunity need not abide by the most stringent standard adopted anywhere in the United States. And the national officeholder need not guess at when a relatively small set of appellate precedents have established a binding legal rule. . . . [t]oo expansive a view of "clearly established law" would risk giving local judicial determinations the effect of rules with de facto national significance, contrary to the normal process of ordered appellate review. Ashcroft, 131 S.Ct. at 2086-87 (Kennedy, J. concurring). See Greason v. Kemp, 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.")
   3. May decisions of other circuit courts of appeals clearly estabish a right? Compare Pearson v. Callahan, 555 U.S. 223 (2009) (finding right is not clearly established upon decisions of other federal courts of appeal and state supreme courts where officers' own federal circuit had not addressed constitutionality of conduct and Cleveland-Perdue v. Brutsche, 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, 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.").
   4. Are unpublished opnions relevant to whether a right is clearly established? See Prison Legal News v. Cook, 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.")
      

4. Does the fact that courts of appeals have generated conflicting results render the right per se not clearly established? Compare Garcia v. Miera, 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, 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, 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.").
   
5. 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?
6. 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, 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, 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. InWilson v. Layne, 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?
   
   
7. 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?
   
   In Groh v. Ramirez, 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 564. 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. at 564, n. 7 See also Hope v. Pelzer, 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. 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.")

Anderson v. Creighton

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, 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 195.² 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, 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.⁶

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.³

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 818-819.¹² 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, 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 , 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 -- AUDIO Oral Argument Transcript

Anderson v. Creighton PRINT Oral Argument Transcript

Notes on Anderson v. Creighton

a. Qualified Immunity and the Plaintiff's Prima Facia Case

1. Justice Stevens' dissenting opinion in Anderson proposed 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 rejected Justice Stevens' assertion that "unreasonableness" for Fourth Amendment purposes is the same as a negligence standard, should the official be barred from raising qualified immunity where plaintiff must prove defendant's negligence, recklessness or intent to establish a constitutional violation?
   
   
   1. In Goodwin v. Circuit Court of St. Louis County, 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. Solem, 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, 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, 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.").
      
      
      1. 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?
         
         
      2. 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?
         
         
      3. 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, 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, 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. How is the judge to determine immunity where material facts relevant to immunity are in dispute? In Warren v. City of Lincoln, Nebraska, 816 F.2d 1254, 1262 (8th Cir. 1987), 490 U.S. 1091 (1989), 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.

b. When is a Right Clearly Established--Factual Proximity

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. Why did the Supreme Court in Davis V. Scherer find that the right to apre-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.
   2. In Lassiter v. Alabama A & M University, 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 Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) ("We do not require a case directly on point, but exiting precedent must have paced the . . .constitutional question beyond debate.") McVey v. Stacy, 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.").
      
   3. In Hope v. Pelzer, 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, 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, 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, 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. In Messerschmidt v. Millender, 132 S. Ct. 1235 (2012), the Court held that the court of appeals erred in denying qualified immunity to a police officer who applied for, and conducted a search pursuant to, a warrant that was not supported by probable cause. In finding that no reasonable officer could have believed the warrant was valid, the court of appeals relief upon Groh v. Ramirez, 540 U.S. 551 (2004). In Groh, the Court had denied qualified immunity to officers who conduct a search pursuant to a warrant that described the house to be searched, but did not detail the items to be seized. The Messerschmidt Court held that Groh did not clearly establish that the search in issue violated the Fourth Amendment: In contrast to Groh, any defect here would not have been obvious from the face of the warrant. Rather, any arguable defect would have become apparent only upon a close parsing of the warrant application, and a comparison of the affidavit to the terms of the warrant to determine whether the affidavit established probable cause to search for all items listed in the warrant. This is not an error that "just a simple glance" would have revealed. Messerschmidt, 132 S. Ct. at 1250.
   
   
   1. By what standard can the trial court determine whether the facts of the relevant precedent cases proscibing warrantless searches are suffciently analogous so that a reasonable officer could not have believed that Anderson's actions were unlawful?
   2. By what standard can the trial court determine whether the facts of the relevant precedent cases proscibing warrantless searches are suffciently distinguishable so that a reasonable officer could not have believed that Anderson's actions were unlawful?
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, 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. In Anderson, the officers conducted the search without benefit of a warrant. In Malley v. Briggs, 475 U.S. 335 (9186), the Court held the fact that a neutral magistrate had issued a warrant did not per se confer qualified immunity upon the officers who executed the warrant. Rather, if "a reasonably well-trained officer in [defendant’s] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant," the officer would not be immune. Malley, 475 U.S. at 345.
   
   In Messerschmidt v. Millender, 132 S. Ct. 1235 (2012), the Court ruled that "the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner." Id. at 1245. The "threshold for establishing [an] exception [to conferral of qualified immunity] is a high one," id., met only on "rare" occasions. Id. at 1250. The Court further reasoned that the fact that the officer sought and obtained approval from his superiors and the district attorney was "certainly pertinent in assessing whether they could have held a reasonable belief that the warrant was supported by probable cause." Id. at 1250.
   
   Justices Sotomayor and Ginsberg dissented from the majority's presumption immunizing officers whenever a neutral magistrate has approved a search: In cases in which it would be not only wrong but unreasonable for a well-trained officer to seek a warrant, allowing a magistrate's approval to immunize the police officer's unreasonable action retrospectively makes little sense. . . . To the extent it proposes to cut back on Malley, the majority will . . . encourag[e] sloppy police work and exacerbat[e] the risk that searches will not comport with the requirements of the Fourth Amendment. Messerschmidt, 132 S. Ct. at 1260 (Sotomayor, J., dissenting). The dissenting justices likewise disagreed with the majority's finding that approval by the officer's superior supported conferral of immunity. Giving weight to that fact [that two superior police officers and the district attorney reviewed the warrant application] would turn the Fourth Amendment on its head. . . . The effect of the Court's rule . . . is to hold blameless the "plainly incompetent" action of the police officer seeking a warrant because of the "plainly incompetent" approval of his superiors and the district attorney. Under the majority's test, four wrongs apparently make a right. I cannot agree, however, that the "objective legal reasonableness" of an official's acts" turns on the number of police officers or prosecutors who improperly sanction a search that violates the Fourth Amendment. Messerschmidt, 132 S. Ct. at 1260 (Sotomayor, J., dissenting). See also id. at 1252 (Breyer, J., dissenting) ("All of these individuals . . . are ‘part of the prosecution team.' To make their views relevant is to enable those teammates (whether acting in good or bad faith) to confer immunity upon each other for unreasonable conduct--like applying for a warrant without anything resembling probable cause.").

c. The Impact of Iqbal and Anderson on Plaintiff's Ability to
     Successfully Plead a Claim under Section 1983

6. In Gomez v. Toledo, 446 U.S. 635, 640 (1980), the Court held that qualified immunity was 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 law to state a claim for relief.
   
   Later, in Ashcroft v. Iqbal, 556 U.S. 662 (2009) (Part II (C)), supra), the Court required plaintiff to plead "plausibly" that defendants were not entitled to immunity. The Iqbal Court concluded that it had to decide whether "plaintiff. . . plead factual matter that, if taken as true, states a claim that [defendants] deprived him of his clearly established constitutional rights." Id. at 666. Since Iqbal, most lower federal courts have held plaintiffs in Section 1983 actions now need to plead facts that make it plausible that qualified immunity does not bar the claim. See Arqueta v. United States Immigration Customs Enforcement, 643 F.3d 60 (3rd Cir. 2011); (reversing district court’s denial of motion to dismiss complaint on grounds of qualified immunity); Randall v. Scott, 610 F.3d 701 (11th Cir. 2010); Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009); Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009). But see Evans ex rel. Evans v. Richardson, 2010 U.S. Dist. LEXIS 26923 (N.D. Ill. 2010) (noting that plaintiffs were not required to plead allegations to defeat qualified immunity, citing pre-Iqbal decision in Jacobs v. City of Chicago, 215 F.3d 758, 770 (7th Cir. 2000).
   
   
7. How can a plaintiff plead factual allegations that make it plausible that a reasonable officer could not have believed that a search was lawful, "in light of clearly established law and the information the searching officers possessed," where only the officers possess knowledge of the facts that caused them to conduct the search?
   
   
   1. Some courts have strictly applied the Iqbal plausibility standard, regardless of whether plaintiff had access to factual information necessary to satisfy the standard. In Ibrahim v. Dept. of Homeland Security, 2009 U.S. Dist. LEXIS 64619 (N.D. Cal. 2009), plaintiff was a Muslim doctoral student at Stanford University. When Ms. Ibrahim attempted to fly to Kuala Lumpur to present her research at a conference sponsored by Stanford, she was detained because her name was on the "no fly" list established by the Transportation Security Administration. Ms. Ibrahim alleged that she had no criminal record and no connections or association with terrorists. The plaintiff further alleged that she was discriminated against because of her religion and national origin.
      
      The district court noted that in order to state a claim for discrimination, the plaintiff had to show that defendant acted "not for a neutral investigative reason but for the purpose of discriminating" based on "race, religion or national origin." Id. at *23. The court reasoned that under Iqbal, plaintiff's allegations that she "was Muslim and detained" was not sufficient to make it plausible that she was detained because she was Muslim.
      
      The Ibrahim court conceded that "a good argument can be made" that the Iqbal pleading standard would be "too demanding" for plaintiffs who do not have access to important facts. Id. at *33. The court further admitted that "[v]ictims of discrimination and profiling will often not have specific facts to plead without benefit of discovery." Id. Nonetheless, the court concluded that regardless of whether plaintiff had access to information, the lower courts were bound to apply the law as "laid down by the Supreme Court." Id. See also Santiago v. Warminister Township, 629 F.3d 121, 134 n.10 (3rd Cir. 2010) ("We recognize that plaintiffs may face challenges in drafting claims despite an information asymmetry between plaintiffs and defendants. Given that reality, reasonable minds may take issue with Iqbal and urge a different balance between ensuring, on the one hand, access to the courts so that victims are able to obtain recompense and, on the other, ensuring that municipalities and police officers are not unnecessarily subjected to the burdens of litigation. . . . The Supreme Court has struck the balance, however, and we abide by it."); Shihadeh v. Smeal, 2011 WL 17443398 at * 3 (E.D. Pa. 2011) ("To be extent that Plaintiff is arguing that this Court should permit discovery in order to give him access to information with which he might state a cognizable [§1983] claim against Defendant in her individual capacity, we find that . . . Iqbal. . . disallow[s] such a practice by placing the burden of factual specificity on pleadings on plaintiffs."); Padron v. Wal-Mart Stores, Inc., 783 F.Supp. 2d 1042, 1048 (N.D. Ill. 2011) ("Twombly discourages correcting perceived informational asymmetry through discovery. . . .").
      
      
   2. Some courts have refused to dismiss the complaint before discovery where necessary facts were in the sole possession of the defendant. In Morgan v. Hubert, 335 Fed. Appx. 466 (5th Cir. 2009), plaintiff was a prisoner in protective custody at the Orleans Parish Prison. Because of Hurricane Katrina, all the prisoners had to be transferred to the Elayn Hunt Correctional Center (EHCC). Upon arrival at the EHCC, Morgan and other inmates in protective custody informed the guards of their status and asked to be segregated from the general population. Despite his protest, the guard placed Morgan with the general prison population. Thirty minutes after arriving, Morgan was beaten and stabbed in the head and neck. Morgan filed a Section 1983 action against the warden of the EHCC alleging violation of the Eighth Amendment. Warden Hubert moved to dismiss on the basis of qualified immunity.
      
      The court of appeals noted that to have violated the Eighth Amendment, Warden Hubert must have known the facts from which he reasonably could have concluded an excessive risk of serious harm was present and subjectively decided to disregard that risk. Plaintiff's complaint failed to state specifically when Warden Hubert knew of the prison transfers or what policies he adopted concerning the handling of prisoners in protective custody. However, the court reasoned, "we do not require a plaintiff to plead facts ‘peculiarly within the knowledge of defendants'. . . and the facts omitted fall squarely within that category." Id. at 472.
      
      While denying the motion to dismiss, the court remained "mindful that the protection afforded by qualified immunity applies to the lawsuit itself, and not merely to liability, and thus the issue should be resolved as early as possible." Id. The court of appeals remanded for discovery limited to the issue of qualified immunity and instructed the district court to decide the immunity issue once that discovery is complete. Id. at 473-74. See also Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir. 2010) (Reasoning that prisoners filing claims of constitutional violations by prison officials will "rarely suffer from information asymmetry" because they will learn the justification for the challenged conduct through the administrative claims they must bring as a prerequisite to suit under the Prison Litigation Reform Act. However,"if the complaint alleges that the prisoner received no explanation in the grievance process (or was coerced into not pursing a grievance), claims that the officer lacked justification "may become plausible."); Scott Dodson, New Pleading, New Discovery, 109 Mich. L. Rev. 53, 72 (2010) (noting that when important facts are in the sole possesion of the defendant, plaintiff should be allowed limited discovery to obtain them; claims dealing with "the defendant's state of mind or secretive conduct" would be very hard to plead plausibly unless plaintiff was allowed to conduct limited discovery); Suzette M. Malveaux, Front Loading and Heavy Lifting! How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 Lewis & Clark L. Rev. 65, 106-107 (2010) (reasoning that courts should allow plaintiffs to conduct "pre-dismissal" or "plausibility" discovery when they are not in possession of important facts to "prevent unjust dismissals of otherwise worthy claims"); Ray Worthy Campbell, Getting a Clue: Two Stage Complaint Pleadings as a Solution to The Conley-Iqbal Dilemma, 114 Penn St. L. Rev. 1191, 1239 (2010) (proposing "bifurcating" of the pleading stage allowing plaintiff to submit a simple complaint and then submit a more detailed complaint following limited discovery).
      
      
   3. Could plaintiff's counsel rely upon Fed.R.Civ.P. 11(b)(3) to survive a motion to dismiss where defendants are in sole possession of facts necessary to state a claim for relief? Rule 11(b)(3) provides that by signing a complaint, counsel certifies that The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. In Luttman v. Sheriff of Jay County, 2010 U.S. Dist. LEXIS 47536 (N.D. Ind. 2010), plaintiff filed a Section 1983 action against the Sheriff of Jay County after a police dog bit Luttman during the course of his arrest. The complaint did not include any factual allegations regarding the Sheriff's personal involvement in, or supervisory responsibility for, alleged constitutional deprivations. The district court rejected plaintiff's argument that the court should delay dismissal of the complaint to permit plaintiff to conduct discovery concerning the policies and practices of the Sheriff's Department. However, the court, suggested: This argument might have some legs to it if backed-up with the type of representation required by Rule 11(b)(3). . .
      
      Notably absent from any of Luttman's filings. . . is so much as a whisper that he has the facts to support an official capacity claim or, in the words of Rule 11(b)(3), he will have them "after a reasonable opportunity for. . . discovery." Indeed, Luttman's filings either totally avoid mentioning the claim, as in his complaint, or merely offer the argument that he may replead against Sheriff Newton "if future discovery reveals evidence" providing a basis to do so. (Resp. Br. 2-3). Both submissions fall short of Rule 11(b)(3). Luttman, 2010 U.S. Dist. LEXIS 47536 at **7. See also Elan Microelectronics Corp. v. Apple, Inc., 2009 U.S. Dist. LEXIS 83715 at *12-13 (N.D. Cal. 2009) ("The portion of Rule 11(b)(3) on which Apple is relying merely relieves the attorney. . . from certifying that he or she already possesses evidentiary support for the factual allegations, it does not release the party from the obligation to advance sufficient factual allegations to satisfy Rule 8. . . . If. . . Apple still chooses to rely on Rule 11(b)(3), it should plainly allege infringement as a factual matter (and with the level of specificity required under Rule 8 and Twombly and Iqbal), and use Rule 11(b)(3) only for the purpose of relieving counsel from the obligation it would otherwise have to certify that it already possesses evidentiary support for all the factual allegations."). But see Edward A. Hartnett, Responding to Twombly and Iqbal: Where do we go from here?, 95 Iowa L. Rev. 24, 35 (2010) (arguing that it would not help a plaintiff "to try to invoke Rule 11(b)(3) in order to masquerade a conclusion applying the law to the facts as a factual allegation" because the court would easily conclude that "discovery is not likely to lead to evidence supporting the allegation.").
      
      
   4. If plaintiff can assert sufficient factual allegations to make it plausible that defendant does not have qualified immunity on one claim for relief, many plaintiff engage in discovery on that claim to unearth facts in defendant's possession that will enable plaintiff to assert additional claims?
      
      
      1. The 2000 amendment to Fed.R.Civ.P. 26(b) changed the scope of discovery from matter relevant "to the subject matter of the action" to "matter that is relevant to any party's claim or defense." However, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action."
         
         
      2. As discussed in Note 7(a), supra, in Ibrahim v. Dept. of Homeland Security, 2009 U.S. Dist. LEXIS 64619 (N.D. Cal. 2009), the court dismissed plaintiff's equal protection claim despite the fact plaintiff may not have had access to facts necessary to state a claim. The court found the harshness of that outcome mitigated by the fact that plaintiff pleaded a viable claim for deprivation of her rights under Fourth Amendment. During discovery, Ibrahim can inquire into facts that bear on the incident, including why her name was on the [no-fly] list. If enough facts emerge, then she can move to amend and to reassert her discrimination claims at that time. Id. at *33. But see Luttman v. Sheriff of Jay County, 2010 U.S. Dist. LEXIS 47536 (N.D. Ind. 2010) (Despite fact that plaintiff had valid Section 1983 claim against Deputy Sheriff, court refused plaintiff's request to make dismissal of claim against Sheriff provisional to permit plaintiff to conduct discovery on policies and practices of Sheriff's Department).
      
      
   5. May plaintiff successfully avoid dismissal under Iqbal by filing the Section 1983 claim in state court? How is defendant likely to respond? See 28 U.S.C. §1441(a).
      
      
   6. May plaintiff obtain facts necessary to satisfy Iqbal by utilizing pre-suit discovery authorized by state rules and then filing the lawsuit in federal court? See Pa.R.Civ.P. 4003.8 ("a plaintiff may obtain pre-complaint discovery where the information sought is material and necessary. . . and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person."); Scott Dodson, Federal Pleading and State Presuit Discovery, 14 Lewis & Clark L. Rev. 43 (2010).
8. After Davis and Anderson, 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 ever reach the issue of whether the government's conduct violates the Constitution?

Pearson v. Callahan

This is an action brought by respondent under Rev. Stat. § 1979, 42 U.S.C. § 1983, against state law enforcement officers who conducted a warrantless search of his house incident to his arrest for the sale of methamphetamine to an undercover informant whom he had voluntarily admitted to the premises. The Court of Appeals held that petitioners were not entitled to summary judgment on qualified immunity grounds. Following the procedure we mandated in Saucier v. Katz,, 533 U.S. 194,(2001), the Court of Appeals held, first, that respondent adduced facts sufficient to make out a violation of the Fourth Amendment and, second, that the unconstitutionality of the officers' conduct was clearly established. In granting review, we required the parties to address the additional question whether the mandatory procedure set out in Saucier should be retained.

We now hold that the Saucier procedure should not be regarded as an inflexible requirement and that petitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional. We therefore reverse.

The Central Utah Narcotics Task Force is charged with investigating illegal drug use and sales. In 2002, Brian Bartholomew, who became an informant for the task force after having been charged with the unlawful possession of methamphetamine, informed Officer Jeffrey Whatcott that respondent Afton Callahan had arranged to sell Bartholomew methamphetamine later that day.

That evening, Bartholomew arrived at respondent's residence at about 8 p.m. Once there, Bartholomew went inside and confirmed that respondent had methamphetamine available for sale. Bartholomew then told respondent that he needed to obtain money to make his purchase and left.

Bartholomew met with members of the task force at about 9 p.m. and told them that he would be able to buy a gram of methamphetamine for $100. After concluding that Bartholomew was capable of completing the planned purchase, the officers searched him, determined that he had no controlled substances on his person, gave him a marked $100 bill and a concealed electronic transmitter to monitor his conversations, and agreed on a signal that he would give after completing the purchase.

The officers drove Bartholomew to respondent's trailer home, and respondent's daughter let him inside. Respondent then retrieved a large bag containing methamphetamine from his freezer and sold Bartholomew a gram of methamphetamine, which he put into a small plastic bag. Bartholomew gave the arrest signal to the officers who were monitoring the conversation, and they entered the trailer through a porch door. In the enclosed porch, the officers encountered Bartholomew, respondent, and two other persons, and they saw respondent drop a plastic bag, which they later determined contained methamphetamine. The officers then conducted a protective sweep of the premises. In addition to the large bag of methamphetamine, the officers recovered the marked bill from respondent and a small bag containing methamphetamine from Bartholomew, and they found drug syringes in the residence. As a result, respondent was charged with the unlawful possession and distribution of methamphetamine.

The trial court held that the warrantless arrest and search were supported by exigent circumstances. On respondent's appeal from his conviction, the Utah attorney general conceded the absence of exigent circumstances, but urged that the inevitable discovery doctrine justified introduction of the fruits of the warrantless search. The Utah Court of Appeals disagreed and vacated respondent's conviction. . . . Respondent then brought this damages action under 42 U.S.C. § 1983 in the United States District Court for the District of Utah, alleging that the officers had violated the Fourth Amendment by entering his home without a warrant. . . .

In granting the officers' motion for summary judgment, the District Court noted that other courts had adopted the "consent-once-removed" doctrine, which permits a warrantless entry by police officers into a home when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view. Believing that this doctrine was in tension with our intervening decision in Georgia v. Randolph, 547 U.S. 103 (2006), the District Court concluded that "the simplest approach is to assume that the Supreme Court will ultimately reject the [consent-once-removed] doctrine and find that searches such as the one in this case are not reasonable under the Fourth Amendment." . . . . The court then held that the officers were entitled to qualified immunity because they could reasonably have believed that the consent-once-removed doctrine authorized their conduct.

On appeal, a divided panel of the Tenth Circuit held that petitioners' conduct violated respondent's Fourth Amendment rights. Callahan v. Millard Cty., 494 F.3d 891, 895-899 (2007). The panel majority stated that "[t]he 'consent-once-removed' doctrine applies when an undercover officer enters a house at the express invitation of someone with authority to consent, establishes probable cause to arrest or search, and then immediately summons other officers for assistance." Id., at 896. The majority took no issue with application of the doctrine when the initial consent was granted to an undercover law enforcement officer, but the majority disagreed with decisions that "broade[n] this doctrine to grant informants the same capabilities as undercover officers." Ibid.

The Tenth Circuit panel further held that the Fourth Amendment right that it recognized was clearly established at the time of respondent's arrest. Id., at 898-899. "In this case," the majority stated, "the relevant right is the right to be free in one's home from unreasonable searches and arrests." Id., at 898. The Court determined that, under the clearly established precedents of this Court and the Tenth Circuit, "warrantless entries into a home are per se unreasonable unless they satisfy the established exceptions." Id., at 898-899. In the panel's words, "the Supreme Court and the Tenth Circuit have clearly established that to allow police entry into a home, the only two exceptions to the warrant requirement are consent and exigent circumstances." Id., at 899. Against that backdrop, the panel concluded, petitioners could not reasonably have believed that their conduct was lawful because petitioners "knew (1) they had no warrant; (2) [respondent] had not consented to their entry; and (3) [respondent's] consent to the entry of an informant could not reasonably be interpreted to extend to them." Ibid.

In dissent, Judge Kelly argued that "no constitutional violation occurred in this case" because, by inviting Bartholomew into his house and participating in a narcotics transaction there, respondent had compromised the privacy of the residence and had assumed the risk that Bartholomew would reveal their dealings to the police. Id., at 903. Judge Kelly further concluded that, even if petitioners' conduct had been unlawful, they were nevertheless entitled to qualified immunity because the constitutional right at issue--"the right to be free from the warrantless entry of police officers into one's home to effectuate an arrest after one has granted voluntary, consensual entry to a confidential informant and undertaken criminal activity giving rise to probable cause"--was not "clearly established" at the time of the events in question. Id., at 903-904.

As noted, the Court of Appeals followed the Saucier procedure. The Saucier procedure has been criticized by Members of this Court and by lower court judges, who have been required to apply the procedure in a great variety of cases and thus have much firsthand experience bearing on its advantages and disadvantages. Accordingly, in granting certiorari, we directed the parties to address the question whether Saucier should be overruled. 552 U.S. 1279 (2008).

In Saucier, 533 U.S. 194, this Court mandated a two-step sequence for resolving government officials' qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right. 533 U.S., at 201. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was "clearly established" at the time of defendant's alleged misconduct. Ibid. Qualified immunity is applicable unless the official's conduct violated a clearly established constitutional right. Anderson, supra, at 640.

Our decisions prior to Saucier had held that "the 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." County of Sacramento v. Lewis, 523 U.S. 833, 841, n. 5, (1998). Saucier made that suggestion a mandate. For the first time, we held that whether "the facts alleged show the officer's conduct violated a constitutional right ... must be the initial inquiry" in every qualified immunity case. 533 U.S., at 201 (emphasis added). Only after completing this first step, we said, may a court turn to "the next, sequential step," namely, "whether the right was clearly established." Ibid.

This two-step procedure, the Saucier Court reasoned, is necessary to support the Constitution's "elaboration from case to case" and to prevent constitutional stagnation. Ibid. "The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case." Ibid.

On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.

Although we now hold that the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial. For one thing, there are cases in which there would be little if any conservation of judicial resources to be had by beginning and ending with a discussion of the "clearly established" prong. "[I]t often may be difficult to decide whether a right is clearly established without deciding precisely what the existing constitutional right happens to be." Lyons v. Xenia, 417 F.3d 565, 581 (C.A.6 2005) (Sutton, J., concurring). In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. In addition, the Saucier Court was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.

At the same time, however, the rigid Saucier procedure comes with a price. The procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case. There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right. District courts and courts of appeals with heavy caseloads are often understandably unenthusiastic about what may seem to be an essentially academic exercise.

Unnecessary litigation of constitutional issues also wastes the parties' resources. Qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell, 472 U.S., at 526 (emphasis deleted). Saucier's two-step protocol "disserve[s] the purpose of qualified immunity" when it "forces the parties to endure additional burdens of suit--such as the costs of litigating constitutional questions and delays attributable to resolving them--when the suit otherwise could be disposed of more readily." Brief for Nat. Assn. of Criminal Defense Lawyers as Amicus Curiae 30.

Although the first prong of the Saucier procedure is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development. For one thing, there are cases in which the constitutional question is so factbound that the decision provides little guidance for future cases. See Scott v. Harris, 550 U.S. 372, 388 (2007) (BREYER, J., concurring) (counseling against the Saucier two-step protocol where the question is "so fact dependent that the result will be confusion rather than clarity"); Buchanan v. Maine, 469 F.3d 158, 168 (C.A.1 2006) ("We do not think the law elaboration purpose will be well served here, where the Fourth Amendment inquiry involves a reasonableness question which is highly idiosyncratic and heavily dependent on the facts").

A decision on the underlying constitutional question in a § 1983 damages action or a Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388 (1971), action may have scant value when it appears that the question will soon be decided by a higher court. When presented with a constitutional question on which this Court had just granted certiorari, the Ninth Circuit elected to "bypass Saucier's first step and decide only whether [the alleged right] was clearly established." Motley v. Parks, 432 F.3d 1072, 1078, and n. 5 (2005) (en banc). Similar considerations may come into play when a court of appeals panel confronts a constitutional question that is pending before the court en banc or when a district court encounters a constitutional question that is before the court of appeals.

A constitutional decision resting on an uncertain interpretation of state law is also of doubtful precedential importance. As a result, several courts have identified an "exception" to the Saucier rule for cases in which resolution of the constitutional question requires clarification of an ambiguous state statute. . . . Justifying the decision to grant qualified immunity to the defendant without first resolving, under Saucier's first prong, whether the defendant's conduct violated the Constitution, these courts have observed that Saucier's "underlying principle" of encouraging federal courts to decide unclear legal questions in order to clarify the law for the future "is not meaningfully advanced ... when the definition of constitutional rights depends on a federal court's uncertain assumptions about state law. . . . "

When qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff's claim or claims may be hard to identify. . . . Accordingly, several courts have recognized that the two-step inquiry "is an uncomfortable exercise where ... the answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet fully developed" and have suggested that "[i]t may be that Saucier was not strictly intended to cover" this situation. Dirrane v. Brookline Police Dept., 315 F.3d 65, 69-70 (C.A.1 2002) . . . .

There are circumstances in which the first step of the Saucier procedure may create a risk of bad decisionmaking. The lower courts sometimes encounter cases in which the briefing of constitutional questions is woefully inadequate .. . .

Although the Saucier rule prescribes the sequence in which the issues must be discussed by a court in its opinion, the rule does not--and obviously cannot--specify the sequence in which judges reach their conclusions in their own internal thought processes. Thus, there will be cases in which a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all. In such situations, there is a risk that a court may not devote as much care as it would in other circumstances to the decision of the constitutional issue. . . .

Rigid adherence to the Saucier rule may make it hard for affected parties to obtain appellate review of constitutional decisions that may have a serious prospective effect on their operations. Where a court holds that a defendant committed a constitutional violation but that the violation was not clearly established, the defendant may face a difficult situation. As the winning party, the defendant's right to appeal the adverse holding on the constitutional question may be contested. See Bunting, 541 U.S., at 1025 (SCALIA, J., dissenting from denial of certiorari) ("The perception of unreviewability undermines adherence to the sequencing rule we ... created" in Saucier); see also Kalka v. Hawk, 215 F.3d 90, 96, n. 9 (C.A.D.C.2000) (noting that "[n]ormally, a party may not appeal from a favorable judgment" and that the Supreme Court "has apparently never granted the certiorari petition of a party who prevailed in the appellate court"). In cases like Bunting, the "prevailing" defendant faces an unenviable choice: "compl[y] with the lower court's advisory dictum without opportunity to seek appellate [or certiorari] review," or "def[y] the views of the lower court, adher[e] to practices that have been declared illegal, and thus invit [e] new suits" and potential "punitive damages." Horne, supra, at 247-248.

Adherence to Saucier's two-step protocol departs from the general rule of constitutional avoidance and runs counter to the "older, wiser judicial counsel 'not to pass on questions of constitutionality ... unless such adjudication is unavoidable.'. . . . "

This flexibility properly reflects our respect for the lower federal courts that bear the brunt of adjudicating these cases. Because the two-step Saucier procedure is often, but not always, advantageous, the judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each case.

Any misgivings concerning our decision to withdraw from the mandate set forth in Saucier are unwarranted. Our decision does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, the development of constitutional law is by no means entirely dependent on cases in which the defendant may seek qualified immunity. Most of the constitutional issues that are presented in § 1983 damages actions and Bivens cases also arise in cases in which that defense is not available, such as criminal cases and § 1983 cases against a municipality, as well as § 1983 cases against individuals where injunctive relief is sought instead of or in addition to damages. See Lewis, 523 U.S., at 841, n. 5 (noting that qualified immunity is unavailable "in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion").

We also do not think that relaxation of Saucier's mandate is likely to result in a proliferation of damages claims against local governments. Cf. Brief for Nat. Assn. of Counties et al. as Amici Curiae 29, 30 ("[T]o the extent that a rule permitting courts to bypass the merits makes it more difficult for civil rights plaintiffs to pursue novel claims, they will have greater reason to press custom, policy, or practice [damages] claims against local governments"). It is hard to see how the Saucier procedure could have a significant effect on a civil rights plaintiff's decision whether to seek damages only from a municipal employee or also from the municipality. Whether the Saucier procedure is mandatory or discretionary, the plaintiff will presumably take into account the possibility that the individual defendant will be held to have qualified immunity, and presumably the plaintiff will seek damages from the municipality as well as the individual employee if the benefits of doing so (any increase in the likelihood of recovery or collection of damages) outweigh the litigation costs.

Nor do we think that allowing the lower courts to exercise their discretion with respect to the Saucier procedure will spawn "a new cottage industry of litigation ... over the standards for deciding whether to reach the merits in a given case." Brief for Nat. Assn. of Counties, supra, at 29, 30. It does not appear that such a "cottage industry" developed prior to Saucier, and we see no reason why our decision today should produce such a result.

Turning to the conduct of the officers here, we hold that petitioners are entitled to qualified immunity because the entry did not violate clearly established law. An officer conducting a search is entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment. See Anderson, 483 U.S., at 641. This inquiry turns on the "objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." . . .

When the entry at issue here occurred in 2002, the "consent-once-removed" doctrine had gained acceptance in the lower courts. This doctrine had been considered by three Federal Courts of Appeals and two State Supreme Courts starting in the early 1980's. See, e.g., United States v. Diaz , 814 F.2d 454, 459 (CA7), cert. denied, 484 U.S. 857 (1987); a United States v. Bramble, 103 F.3d 1475 (C.A.9 1996); United States v. Pollard, 215 F.3d 643, 648-649 (CA6), cert. denied, 531 U.S. 999 (2000); State v. Henry, 133 N.J. 104, 627 A.2d 125 (1993); State v. Johnston, 184 Wis.2d 794, 518 N.W.2d 759 (1994). It had been accepted by every one of those courts. Moreover, the Seventh Circuit had approved the doctrine's application to cases involving consensual entries by private citizens acting as confidential informants. See United States v. Paul, 808 F.2d 645, 648 (1986). The Sixth Circuit reached the same conclusion after the events that gave rise to respondent's suit, see United States v. Yoon, 398 F.3d 802, 806-808, cert. denied, 546 U.S. 977 (2005), and prior to the Tenth Circuit's decision in the present case, no court of appeals had issued a contrary decision.

The officers here were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on "consent-once-removed" entries. The principles of qualified immunity shield an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law. Police officers are entitled to rely on existing lower court cases without facing personal liability for their actions. In Wilson, we explained that a Circuit split on the relevant issue had developed after the events that gave rise to suit and concluded that "[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy." 526 U.S., at 618. Likewise, here, where the divergence of views on the consent-once-removed doctrine was created by the decision of the Court of Appeals in this case, it is improper to subject petitioners to money damages for their conduct.

Because the unlawfulness of the officers' conduct in this case was not clearly established, petitioners are entitled to qualified immunity. We therefore reverse the judgment of the Court of Appeals.

Pearson v. Callahan -- AUDIO Oral Argument Transcript

Notes on Pearson v. Callahan

D. Interlocutory Appeal of the Denial of Immunity

Mitchell v. Forsyth

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 , 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, 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.

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, 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.² 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, 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.⁵ 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 , 457 U.S. 731 (1982), judges, prosecutors, witnesses, and officials performing "quasi-judicial" functions, see Briscoe v. LaHue,460 U.S. 325 (1983); Butz v. Economou , 438 U.S. 478, 508-517 (1978); Stump v. Sparkman , 435 U.S. 349 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976), and legislators, see Dombrowski v. Eastland, 387 U.S. 82 (1967);Tenney v. Brandhove, 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, 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, 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, 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 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.²

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., 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., 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, 342 U.S. 1, 12 (1952) (opinion of Jackson, J.); see also United States v. Hollywood Motor Car Co., 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, 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, 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 , 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, 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., 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, 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..⁹ 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, 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..² 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..¹³

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.

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, 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." * * * * * A

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.

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, 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, 449 U.S., at 378, n. 13;Coopers & Lybrand v. Livesay, 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..⁹

[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. Forsyth -- AUDIO Oral Argument Transcript

Mitchell v. Forsyth PRINT Oral Argument Transcript

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, 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, 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, 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 314. 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, 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, 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.
   3. In Winfield v. Bass, 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, 516 U.S. at 229. 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 319. 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, 515 U.S. at 304 - 314. 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 304-311. 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 317,(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 319. 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 314, 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, 515 U.S. at 314.
      
      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 , 520 U.S. 911, 916-21(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, 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, 922 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., 486 U.S. 196,(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, 849 F.2d 960 (5th Cir. 1988); Marrical v. Detroit News, Inc., 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, 304 U.S. 64, (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, 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, 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, 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, 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, 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, 23 F.3d 642, 650 (2d Cir. 1994)(jury to determine whether police officers had qualified immunity) with Stone v. Peacock, 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, 127 F.3d 1416, 1420 (11th Cir. 1997); King v. Macri, 993 F.2d 294, 299 (2d Cir. 1993).