The legislative history of § 1983, elsewhere detailed, e.g., Monroe v. Pape, 365 U.S. 167, 172-183 (1961); id., at 225-234 (Frankfurter, J., dissenting in part); Mitchum v. Foster, 407 U.S. 225, 238-242 (1972), demonstrates that it was intended to "[create] a species of tort liability" in favor of persons who are deprived of "rights, privileges, or immunities secured" to them by the Constitution. Imbler v. Pachtman, 424 U.S. 409, 417 (1976).

Petitioners contend that the elements and prerequisites for recovery of damages under this "species of tort liability" should parallel those for recovery of damages under the common law of torts. In particular, they urge that the purpose of an award of damages under § 1983 should be to compensate persons for injuries that are caused by the deprivation of constitutional rights; and, further, that plaintiffs should be required to prove not only that their rights were violated, but also that injury was caused by the violation, in order to recover substantial damages. Unless respondents prove that they actually were injured by the deprivation of procedural due process, petitioners argue, they are entitled at most to nominal damages.

Respondents seem to make two different arguments in support of the holding below. First, they contend that substantial damages should be awarded under § 1983 for the deprivation of a constitutional right whether or not any injury was caused by the deprivation. This, they say, is appropriate both because constitutional rights are valuable in and of themselves, and because of the need to deter violations of constitutional rights. Respondents believe that this view reflects accurately that of the Congress that enacted § 1983. Second, respondents argue that even if the purpose of a § 1983 damages award is, as petitioners contend, primarily to compensate persons for injuries that are caused by the deprivation of constitutional rights, every deprivation of procedural due process may be presumed to cause some injury. This presumption, they say, should relieve them from the necessity of proving that injury actually was caused.

A

Insofar as petitioners contend that the basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights, they have the better of the argument. Rights, constitutional and otherwise, do not exist in a vacuum. Their purpose is to protect persons from injuries to particular interests, and their contours are shaped by the interests they protect.

Our legal system's concept of damages reflects this view of legal rights. "The cardinal principle of damages in Anglo-American law is that of compensation for the injury caused to plaintiff by defendant's breach of duty." 2 F. Harper & F. James, Law of Torts § 25.1, p. 1299 (1956) (emphasis in original). The Court implicitly has recognized the applicability of this principle to actions under § 1983 by stating that damages are available under that section for actions "found... to have been violative of... constitutional rights and to have caused compensable injury...." The lower federal courts appear generally to agree that damages awards under § 1983 should be determined by the compensation principle.

The Members of the Congress that enacted § 1983 did not address directly the question of damages, but the principle that damages are designed to compensate persons for injuries caused by the deprivation of rights hardly could have been foreign to the many lawyers in Congress in 1871.⁷ Two other sections of the Civil Rights Act of 1871 appear to incorporate this principle, and no reason suggests itself for reading § 1983 differently.⁸ To the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages. See Imbler v. Pachtman, 424 U.S., at 442 (White, J., concurring in judgment).⁹

B

It is less difficult to conclude that damages awards under § 1983 should be governed by the principle of compensation than it is to apply this principle to concrete cases. But over the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights.¹⁰ These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well.

It is not clear, however, that common-law tort rules of damages will provide a complete solution to the damages issue in every § 1983 case. In some cases, the interests protected by a particular branch of the common law of torts may parallel closely the interests protected by a particular constitutional right. In such cases, it may be appropriate to apply the tort rules of damages directly to the § 1983 action. In other cases, the interests protected by a particular constitutional right may not also be protected by an analogous branch of the common law of torts. In those cases, the task will be the more difficult one of adapting common-law rules of damages to provide fair compensation for injuries caused by the deprivation of a constitutional right.

Although this task of adaptation will be one of some delicacy as this case demonstrates it must be undertaken. The purpose of § 1983 would be defeated if injuries caused by the deprivation of constitutional rights went uncompensated simply because the common law does not recognize an analogous cause of action. Cf. Jones v. Hildebrant, 432 U.S. 183, 190-191 (1977) (White, J., dissenting); Sullivan v. Little Hunting Park, 396 U.S. 229, 240 (1969). In order to further the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question just as the common-law rules of damages themselves were defined by the interests protected in the various branches of tort law. We agree with Mr. Justice Harlan that the experience of judges in dealing with private [tort] claims supports the conclusion that courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of [constitutional] rights." Bivens v. Six Unknown Fed. Narcotics Agents, supra, at 409 (Harlan, J., concurring in judgment). With these principles in mind, we now turn to the problem of compensation in the case at hand.

C

The Due Process Clause of the Fourteenth Amendment provides:

"[N]or shall any State deprive any person of life, liberty, or property, without due process of law...."

This Clause "raises no impenetrable barrier to the taking of a person's possessions," or liberty, or life. Fuentes v. Shevin, 407 U.S. 67, 81 (1972). Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property. Thus, in deciding what process constitutionally is due in various contexts, the Court repeatedly has emphasized that "procedural due process rules are shaped by the risk of error inherent in the truth-finding process...." Mathews v. Eldridge, 424 U.S. 319, 344 (1976). Such rules "minimize substantively unfair or mistaken deprivations of" life, liberty, or property by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. Fuentes v. Shevin, supra, at 81.

In this case, the Court of Appeals held that if petitioners can prove on remand that "[respondents] would have been suspended even if a proper hearing had been held," 545 F. 2d, at 32, then respondents will not be entitled to recover damages to compensate them for injuries caused by the suspensions. The court thought that in such a case, the failure to accord procedural due process could not properly be viewed as the cause of the suspensions. The court suggested that in such circumstances, an award of damages for injuries caused by the suspensions would constitute a windfall, rather than compensation. We do not understand the parties to disagree with this conclusion. Nor do we.

The parties do disagree as to the further holding of the Court of Appeals that respondents are entitled to recover substantial although unspecified damages to compensate them for "the injury which is 'inherent in the nature of the wrong,'" 545 F. 2d, at 31, even if their suspensions were justified and even if they fail to prove that the denial of procedural due process actually caused them some real, if intangible, injury. Respondents, elaborating on this theme, submit that the holding is correct because injury fairly may be "presumed" to flow from every denial of procedural due process. Their argument is that in addition to protecting against unjustified deprivations, the Due Process Clause also guarantees the "feeling of just treatment" by the government. Anti-Fascist Committee v. McGrath, 341 U.S. 123, 162 (1951) (Frankfurter, J., concurring). They contend that the deprivation of protected interests without procedural due process, even where the premise for the deprivation is not erroneous, inevitably arouses strong feelings of mental and emotional distress in the individual who is denied this "feeling of just treatment." They analogize their case to that of defamation per se, in which "the plaintiff is relieved from the necessity of producing any proof whatsoever that he has been injured" in order to recover substantial compensatory damages. C. McCormick, Law of Damages § 116, p. 423 (1935).

Petitioners do not deny that a purpose of procedural due process is to convey to the individual a feeling that the government has dealt with him fairly, as well as to minimize the risk of mistaken deprivations of protected interests. They go so far as to concede that, in a proper case, persons in respondents' position might well recover damages for mental and emotional distress caused by the denial of procedural due process. Petitioners' argument is the more limited one that such injury cannot be presumed to occur, and that plaintiffs at least should be put to their proof on the issue, as plaintiffs are in most tort actions.

We agree with petitioners in this respect. As we have observed in another context, the doctrine of presumed damages in the common law of defamation per se "is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss." Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974). The doctrine has been defended on the grounds that those forms of defamation that are actionable per se are virtually certain to cause serious injury to reputation, and that this kind of injury is extremely difficult to prove. See id., at 373, 376 (white, J., dissenting). Moreover, statements that are defamatory per se by their very nature are likely to cause mental and emotional distress, as well as injury to reputation, so there arguably is little reason to require proof of this kind of injury either. But these considerations do not support respondents' contention that damages should be presumed to flow from every deprivation of procedural due process.

First, it is not reasonable to assume that every departure from procedural due process, no matter what the circumstances or how minor, inherently is as likely to cause distress as the publication of defamation per se is to cause injury to reputation and distress. Where the deprivation of a protected interest is substantively justified but procedures are deficient in some respect, there may well be those who suffer no distress over the procedural irregularities. Indeed, in contrast to the immediately distressing effect of defamation per se, a person may not even know that procedures were deficient until he enlists the aid of counsel to challenge a perceived substantive deprivation.

Moreover, where a deprivation is justified but procedures are deficient, whatever distress a person feels may be attributable to the justified deprivation rather than to deficiencies in procedure. But as the Court of Appeals held, the injury caused by a justified deprivation, including distress, is not properly compensable under § 1983.¹¹ This ambiguity in causation, which is absent in the case of defamation per se, provides additional need for requiring the plaintiff to convince the trier of fact that he actually suffered distress because of the denial of procedural due process itself.

Finally, we foresee no particular difficulty in producing evidence that mental and emotional distress actually was caused by the denial of procedural due process itself. Distress is a personal injury familiar to the law, customarily proved by showing the nature and circumstances of the wrong and its effect on the plaintiff.¹² In sum, then, although mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983, we hold that neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused.

D

The Court of Appeals believed, and respondents urge, that cases dealing with awards of damages for racial discrimination, the denial of voting rights, and the denial of Fourth Amendment rights support a presumption of damages where procedural due process is denied. Many of the cases relied upon do not help respondents because they held or implied that some actual, if intangible, injury must be proved before compensatory damages may be recovered. Others simply did not address the issue.¹³ More importantly, the elements and prerequisites for recovery of damages appropriate to compensate injuries caused by the deprivation of one constitutional right are not necessarily appropriate to compensate injuries caused by the deprivation of another. As we have said, supra, at 258-259, these issues must be considered with reference to the nature of the interests protected by the particular constitutional right in question. For this reason, and without intimating an opinion as to their merits, we do not deem the cases relied upon to be controlling.

III

Even if respondents' suspensions were justified, and even if they did not suffer any other actual injury, the fact remains that they were deprived of their right to procedural due process. "It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing...." Fuentes v. Shevin, 407 U.S., at 87; see Codd v. Velger, 429 U.S., at 632 (Stevens, J., dissenting); Coe v. Armour Fertilizer Works, 237 U.S. 413, 424 (1915).

Common-law courts traditionally have vindicated deprivations of certain "absolute" rights that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights.

Because the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant's substantive assertions, and because of the importance to organized society that procedural due process be observed, see Boddie v. Connecticut, 401 U.S. 371, 375 (1971); Anti-Fascist Committee v. McGrath, 341 U.S., at 171-172 (Frankfurter, J., concurring), we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury. We therefore hold that if, upon remand, the District Court determines that respondents' suspensions were justified, respondents nevertheless will be entitled to recover nominal damages not to exceed one dollar from petitioners.

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

It is so ordered.

Mr. Justice Marshall concurs in the result.

Mr. Justice Blackmun took no part in the consideration or decision of this case.

Carey v. Piphus

Notes on Carey v. Piphus

1. Can the Carey approach to the measure of damages be reconciled with Justice Harlan's view in Monroe v. Pape that Section 1983 "becomes more than a jurisdictional provision only if one attributes to the enacting legislature the view 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?"

2. In Robertson v. Wegmann, 436 U.S. 584 (1978), Clay Shaw lodged a Section 1983 damage action alleging that the government prosecuted him in bad faith for allegedly having participated in a conspiracy to assassinate President John F. Kennedy. When Shaw died before trial, defendants moved to dismiss the action on the ground that the cause of action abated under the applicable Louisiana statute. According to the Louisiana survivorship statute, Shaw's action would survive only in favor of a spouse, children, parents or sibling. No person having such a relationship with Shaw was alive at the time of his death.

   The Supreme Court granted certiorari to consider whether the Louisiana statute abating the Section 1983 claim controlled or whether the trial court was at liberty to create a federal common rule permitting the action to survive. The Court found the resolution of the issue to turn on 42 U.S. C. §1988, which provides in pertinent part:

   The jurisdiction in civil . . . matters conferred on the district courts by the provisions of this chapter . . . for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies . . . the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil . . . cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause. . . .

   The Court reasoned that because Section 1983 was "deficient" in failing to address whether civil rights actions survive the death of the plaintiff, state common law, as well as modifications generated by state statutes, would control unless "inconsistent with the Constitution and laws of the United States." It then held that the Louisiana survivorship statute was not incompatible with federal law despite the fact that it extinguished Shaw's Section 1983 claim:

   Despite the broad sweep of §1983, we can find nothing in the statute or its underlying policies to indicate that a state law causing abatement of a particular action should invariably be ignored in favor of a rule of absolute survivorship.

   * * * * *

   The goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as the executor of the deceased's estate. And, given that most Louisiana actions survive the plaintiff's death, the fact that a particular action might abate surely would not adversely affect §1983's role in preventing official illegality, at least in situations where there is no claim that the illegality caused the plaintiff's death.

   * * * * *

   A state statute cannot be considered "inconsistent" with federal law merely because the statute causes the plaintiff to lose the litigation. If success of the §1983 action were the only benchmark, there would be no reason at all to look to state law, for the appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant. But §1988 quite clearly instruct us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby.

   * * * * *

   Our holding today is a narrow one, limited to situations in which no claim is made that state law generally is inhospitable to survival of §1983 actions and in which the particular application of state survivorship law, while it may cause abatement of the action, has no independent adverse effect on the policies underlying §1983. A different situation might well be presented . . . if state law "did not provide for the survival of any tort actions," . . . or if it significantly restricted the types of action that survive. . . We intimate no view, moreover, about whether abatement based on state law would be allowed in a situation in which deprivation of federal rights caused death.

   Robertson, 436 U.S. at 590-94.

3. Under Carey and Robertson, do state statutes that limit the amount of damages recoverable in death cases apply to Section 1983 actions?
   1. In City of Tarrant v. Jefferson, 682 So. 2d 29 (Ala. 1966), Melvin Jefferson sued under Section 1983 claiming that city firefighters, in furtherance of a policy of denying fire protection to minorities, purposefully refused to attempt to rescue and revive his mother, Alberta. The city moved for judgment on the pleadings, arguing that a) under the Alabama Wrongful Death Act, punitive but not compensatory damages are recoverable, and b) punitive damages, the only remedy available under the Alabama statute, may not be awarded against local governmental entities under Section 1983.

      The Alabama Supreme Court rejected plaintiff's assertion that application of the state Wrongful Death Act to Section 1983 actions against municipalities is inconsistent with the Constitution and laws of the United States and must be disregarded in favor of a federal common law rule permitting a claim for compensatory damages. The Court reasoned that rather than unduly restrict the federal claim, the Alabama statute supplies a remedy–punitive damages–which exceeds the relief available against a local governmental entity under federal law. Even though the Supreme Court of the United States holds that punitive damages are not recoverable under Section 1983, the Alabama Supreme Court concluded that " ‘the application of state law . . . does not, in substance, abrogate plaintiff's remedy against the city for violations of § 1983, but rather expands the recovery.'" City of Tarrant, 682 So. 2d at 30.

      The United States Supreme Court accepted the case for review but then dismissed its grant of certiorari for want of jurisdiction. Jefferson v. City of Tarrant, 522 U.S. 75 (1997)

   2. In Berry v. City of Muskogee, 900 F. 2d 1489 (10th Cir. 1990), the court of appeals held that Oklahoma survival and wrongful death acts did not govern a Section 1983 damages claim arising out of the murder of Mark Berry by fellow prisoners at the Muskogee City-Federal Jail.

      Applying the principles set out in §1988 for borrowing law from another source, we are satisfied that the Oklahoma survival action alone does not meet the stated criteria. As applied to the instant case, it would provide extraordinarily limited recovery, possibly only damages for property loss, of which there were none, and loss of decedent's earnings between the time of injury and death, of which there also were none. Thus, the Oklahoma survival action is clearly deficient in both its remedy and deterrent effect. The more difficult question is whether the Oklahoma law on survival actions, as supplemented by Oklahoma's wrongful death statute [which provided damages for pain and suffering, lost earnings, funeral and burial expenses and punitive damages], sufficiently meets the §1988 criteria to satisfy the test for borrowing state law.

      * * * * *

      [I]f we were to define §1983 remedies in terms of the state survival action, supplemented by the state wrongful death act, we place into the hands of the state the decision as to allocation of the recovery in a §1983 case, and, indeed, whether there can be any recovery at all. In an Oklahoma wrongful death action nearly all recoverable damages are expressly funneled to the decedent's surviving spouse and children to the exclusion of decedent's creditors or the beneficiaries of decedent's will, if he or she has one. . . The statute also permits recovery for loss of consortium and grief of the surviving spouse, grief and loss of companionship of the children and parents . . . items decedent could not have recovered had he lived to sue for himself.

      Allowing the state determinations to prevail also permits the state to define the scope and extent of recovery. For instance, some states may preclude, or limit, recovery for pain and suffering or for punitive damages. In addition some state laws may deny all recovery in particular circumstances, as when wrongful death actions must be for dependents and there are none.

      * * * * *

      We therefore conclude . . .that the federal courts must fashion a federal remedy to be applied in §1983 death cases. The remedy should be a survival action, brought by the estate of the deceased victim, in accordance with §1983's express statement that the liability is to "the party injured." 42 U.S.C. §1983. It must make available to plaintiffs sufficient damages to serve the deterrent function central to the purpose of §1983. . . . We believe appropriate compensatory damages would include medical and burial expenses, pain and suffering before death, loss of earnings based upon the probable duration of the victim's life had not the injury occurred, the victim's loss of consortium, and other damages recognized in common law tort actions.

      The state wrongful death actions are not foreclosed by this approach; they remain as pendent state tort claims. But, of course, There can be no duplication of recovery.

      Berry, 900 F. 2d at 1504-08.

4. Where a constitutional deprivation causes death, may the surviving family members recover damages under Section 1983 for violation of their own constitutional rights resulting from the death?
   1. In Valdivieso Ortiz v. Burgos, 807 F. 2d 6 (1st Cir. 1986), the stepfather and siblings of an inmate beaten to death by guards at the Guayama Regional Detention Center brought a Section 1983 action to redress deprivation of their constitutional right to companionship. The court of appeals affirmed the district court's grant of summary judgment to defendants:

      Until now, the Supreme Court cases involving the familial liberty interest have fallen generally into two categories, neither of which applies here. First, the Court has held as a matter of substantive due process that the government may not interfere in certain particularly private family decisions. . . . These substantive due process cases do not hold that family relationships are, in the abstract, protected against all state encroachments, direct or indirect, but only that the state may not interfere with an individual's right to choose how to conduct his or her family affairs. . . . This case does not involve such a choice.

      * * * * *

      Appellants also are not within the protective umbrella of the second category of Supreme Court cases. Those cases have held only that when the state seeks to change or affect the relationship of parent and child in furtherance of a legitimate state interest, such as cases involving termination of parental rights. . . a fourteenth amendment liberty interest is implicated and the state therefore must adhere to rigorous procedural safeguards.

      * * * * *

      Although we recognize and deplore the egregious nature of the alleged governmental action in this case, we hesitate. . . to erect a new substantive right upon the relatively uncharted terrain of substantive due process. . . . It does not necessarily follow that the incidental deprivation of even a natural parent's parental rights is actionable simply because the relevant deprivation of life is shocking. . . . [T]he problem of giving definition and limits to a liberty interest in this vast area seems not only exceedingly difficult but to a considerable extent duplicative of the widespread existence of state causes of action, as in this case, which provide some compensation to the grieving relatives.

      Valdivieso Ortiz, 807 F. 2d at 7-9.

   2. In Smith v. City of Fontana, 818 F. 2d 1411 (9th Cir. 1987), a city police officer, responding to a call concerning a domestic dispute, shot and killed Rufus Smith, Sr. in the parking lot of his apartment building. The court of appeals held that Smith's children, suing in their individual capacities, could not assert a claim for relief for violation of the Fourth Amendment proscription of excessive force because the children where not themselves subjected to such force and could not vicariously assert the constitutional rights of their father. However, the court found that the children stated a claim for violation of their substantive due process right to be free from deprivation of the life, love, comfort and support of their father:

      The Supreme Court has yet to address whether and when the government's act of taking the life of one family member deprives other family members of a cognizable liberty interest in continued association with the decedent. Our court, however, has held that parents can challenge under Section 1983 a state's severance of a parent-child relationship as interfering with their substantive liberty interests in the companionship and society of their children. . . . We now hold that this constitutional interest in familial companionship and society logically extends to protect children from unwarranted state interference with their relationships with their parents. The companionship and nurturing interests of parent and child in maintaining a tight familial bond is reciprocal, and we see no reason to accord less constitutional value to the child-parent relationship than we accord to the parent-child relationship.

      * * * * *

      We recognize that the Supreme Court cases [defining] the substantive liberty interest in a parent-child relationship involved suits by parents of minor children. The state's interference with the parent-child relationship therefore threatened not only the parents' interest in the companionship of their children, but also the parents' constitutionally-protected interest in raising their children. . . . When, as in this case, a child claims constitutional protection for her relationship with a parent, there is not custodial interest implicated, but only a companionship interest. This distinction between the parent-child and the child-parent relationships does not, however, justify constitutional protection for one but not the other. We hold that a child's liberty interest in the companionship and support of a parent is sufficiently weighty by itself that interference with this interest may trigger a violation of substantive due process.

      * * * * *

      Our conclusion also finds compelling support in the legislative history of Section 1983's precursor, the Ku Klux Klan act of 1871. Representative Butler described the Act "as remedy for wrongs, arsons and murders done. This is what we offer to a man whose house has been burned, as a remedy; to the woman whose husband has been murdered, as a remedy; to the children whose father has been killed, as a remedy."

      Smith, 818 F. 2d at 1418-19. See also Byrd v. Guess, 137 F. 3d 1126 (9th Cir. 1998) (Mother and widow of decedent shot to death by police officers could not recover damages for loss of society by proving objectively unreasonable application of force in violation of Fourth Amendment but could recover damages upon proof of deliberate indifference to the right of familial relationship and society in violation of Fourteenth Amendment).

5. In Crumpton v. Gates, 947 F. 2d 1418 (9th Cir. 1991), six year old John Crumpton IV filed a Section 1983 action to redress the killing of his father by an alleged Los Angeles Police Department "death squad". The district court granted defendants' motion for summary judgment, finding that because Compton was a two-month old fetus at the time of the killing, he was not a "person" within the meaning of Section 1983. The court of appeals reversed:

   Crumpton claims unwarranted state interference with his rights to familial companionship and society. . . . Because a child has familial relationships only after birth, it follows that the child's right to familial relationships exists only after birth. . . . Thus, although the wrongful act occurred while Compton was in utero, the injury or suffering which flowed from that wrongful act occurred postnatally. . . He was a "person" when the injury occurred, at his birth. Recognizing the temporal distinction, when it exists, between a wrongful act and the injury it ultimately causes is no new concept. It is one consistent with common law tort principles.

   * * * * *

   We hold that Crumpton's injury and cause of action did not arise until his birth. In light of this holding we are not required to reach Crumpton's claim that state law [allowing children born alive to recover in tort for prenatal injuries caused by third parties] should be incorporated into section 1983 for the purpose of allowing him to maintain his action.

   Crumpton, 947 F. 2d at 1422-24.

6. Are there any arguable limits to the ruling in Carey that absent proof of actual injury, plaintiffs in Section 1983 actions may recover only nominal damages in an amount not to exceed one dollar?

Memphis Community School District v. Stachura

"You should consider in this regard any lost earnings; loss of earning capacity; out-of-pocket expenses; and any mental anguish or emotional distress that you find the Plaintiff to have suffered as a result of conduct by the Defendants depriving him of his civil rights." App. 94.

In addition to this instruction on the standard elements of compensatory damages, the court explained that punitive damages could be awarded, and described the standards governing punitive awards. Finally, at respondent's request and over petitioners' objection, the court charged that damages also could be awarded based on the value or importance of the constitutional rights that were violated:

"If you find that the Plaintiff has been deprived of a Constitutional right, you may award damages to compensate him for the deprivation. Damages for this type of injury are more difficult to measure than damages for a physical injury or injury to one's property. There are no medical bills or other expenses by which you can judge how much compensation is appropriate. In one sense, no monetary value we place upon Constitutional rights can measure their importance in our society or compensate a citizen adequately for their deprivation. However, just because these rights are not capable of precise evaluation does not mean that an appropriate monetary amount should not be awarded.

"The precise value you place upon any Constitutional right which you find was denied to Plaintiff is within your discretion. You may wish to consider the importance of the right in our system of government, the role which this right has played in the history of our republic, [and] the significance of the right in the context of the activities which the Plaintiff was engaged in at the time of the violation of the right." Id., at 96.

The jury found petitioners liable, and awarded a total of $275,000 in compensatory damages and $46,000 in punitive damages. The District Court entered judgment notwithstanding the verdict as to one of the defendants, reducing the total award to $266,750 in compensatory damages and $36,000 in punitive damages.

In an opinion devoted primarily to liability issues, the Court of Appeals for the Sixth Circuit affirmed, holding that respondent's suspension had violated both procedural due process and the First Amendment. Stachura v. Truszkowski, 763 F.2d 211 (1985). Responding to petitioners' contention that the District Court improperly authorized damages based solely on the value of constitutional rights, the court noted only that "there was ample proof of actual injury to plaintiff Stachura both in his effective discharge . . . and by the damage to his reputation and to his professional career as a teacher. Contrary to the situation in Carey v. Piphus, 435 U.S. 247 (1978) . . . , there was proof from which the jury could have found, as it did, actual and important damages." Id., at 214.

We granted certiorari limited to the question whether the Court of Appeals erred in affirming the damages award in the light of the District Court's instructions that authorized not only compensatory and punitive damages, but also damages for the deprivation of "any constitutional right." 474 U.S. 918 (1985). We reverse, and remand for a new trial limited to the issue of compensatory damages.

II

Petitioners challenge the jury instructions authorizing damages for violation of constitutional rights on the ground that those instructions permitted the jury to award damages based on its own unguided estimation of the value of such rights. Respondent disagrees with this characterization of the jury instructions, contending that the compensatory damages instructions taken as a whole focused solely on respondent's injury and not on the abstract value of the rights he asserted.

We believe petitioners more accurately characterize the instructions. The damages instructions were divided into three distinct segments: (i) compensatory damages for harm to respondent, (ii) punitive damages, and (iii) additional "[compensatory]" damages for violations of constitutional rights. No sensible juror could read the third of these segments to modify the first. On the contrary, the damages instructions plainly authorized -- in addition to punitive damages -- two distinct types of "compensatory" damages: one based on respondent's actual injury according to ordinary tort law standards, and another based on the "value" of certain rights. We therefore consider whether the latter category of damages was properly before the jury.

III

A

We have repeatedly noted that 42 U. S. C. § 1983 creates "'a species of tort liability' in favor of persons who are deprived of 'rights, privileges, or immunities secured' to them by the Constitution." Carey v. Piphus, 435 U.S. 247, 253 (1978), quoting Imbler v. Pachtman, 424 U.S. 409, 417 (1976). See also Smith v. Wade, 461 U.S. 30, 34 (1983); Newport v. Fact Concerts, Inc., 453 U.S. 247, 258-259 (1981). Accordingly, when § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts. See Smith v. Wade, supra, at 34; Carey v. Piphus, supra, at 257-258; cf. Monroe v. Pape, 365 U.S. 167, 196, and n. 5 (1961) (Harlan, J., concurring).

Punitive damages aside, damages in tort cases are designed to provide "compensation for the injury caused to plaintiff by defendant's breach of duty." 2 F. Harper, F. James, & O. Gray, Law of Torts § 25.1, p. 490 (2d ed. 1986) (emphasis in original), quoted in Carey v. Piphus, supra, at 255. See also Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 395, 397 (1971); id., at 408-409 (Harlan, J., concurring in judgment). To that end, compensatory damages may include not only out-of-pocket loss and other monetary harms, but also such injuries as "impairment of reputation . . . , personal humiliation, and mental anguish and suffering." Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974). See also Carey v. Piphus, supra, at 264 (mental and emotional distress constitute compensable injury in § 1983 cases). Deterrence is also an important purpose of this system, but it operates through the mechanism of damages that are compensatory -- damages grounded in determinations of plaintiffs' actual losses. E. g., 4 Harper, James, & Gray, supra, § 25.3 (discussing need for certainty in damages determinations); D. Dobbs, Law of Remedies § 3.1, pp. 135-136 (1973). Congress adopted this common-law system of recovery when it established liability for "constitutional torts." Consequently, "the basic purpose" of § 1983 damages is "to compensate persons for injuries that are caused by the deprivation of constitutional rights." Carey v. Piphus, 435 U.S., at 254 (emphasis added). See also id., at 257 ("damages awards under § 1983 should be governed by the principle of compensation").

The instructions at issue here cannot be squared with Carey, or with the principles of tort damages on which Carey and § 1983 are grounded. The jurors in this case were told that, in determining how much was necessary to "compensate [respondent] for the deprivation" of his constitutional rights, they should place a money value on the "rights" themselves by considering such factors as the particular right's "importance . . . in our system of government," its role in American history, and its "significance . . . in the context of the activities" in which respondent was engaged. App. 96. These factors focus, not on compensation for provable injury, but on the jury's subjective perception of the importance of constitutional rights as an abstract matter. Carey establishes that such an approach is impermissible. The constitutional right transgressed in Carey -- the right to due process of law -- is central to our system of ordered liberty. See In re Gault, 387 U.S. 1, 20-21 (1967). We nevertheless held that no compensatory damages could be awarded for violation of that right absent proof of actual injury. Carey, 435 U.S., at 264. Carey thus makes clear that the abstract value of a constitutional right may not form the basis for § 1983 damages.

Respondent nevertheless argues that Carey does not control here, because in this case a substantive constitutional right -- respondent's First Amendment right to academic freedom -- was infringed. The argument misperceives our analysis in Carey. That case does not establish a two-tiered system of constitutional rights, with substantive rights afforded greater protection than "mere" procedural safeguards. We did acknowledge in Carey that "the elements and prerequisites for recovery of damages" might vary depending on the interests protected by the constitutional right at issue. Id., at 264-265. But we emphasized that, whatever the constitutional basis for § 1983 liability, such damages must always be designed "to compensate injuries caused by the [constitutional] deprivation." Id., at 265 (emphasis added).¹³ See also Hobson v. Wilson, 237 U. S. App. D. C. 219, 277-279, 737 F.2d 1, 59-61 (1984), cert. denied, 470 U.S. 1084 (1985); cf. Smith v. Wade, 461 U.S. 30 (1983). That conclusion simply leaves no room for noncompensatory damages measured by the jury's perception of the abstract "importance" of a constitutional right.

Nor do we find such damages necessary to vindicate the constitutional rights that § 1983 protects. See n. 11, supra. Section 1983 presupposes that damages that compensate for actual harm ordinarily suffice to deter constitutional violations. Carey, supra, at 256-257 ("To the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages"). Moreover, damages based on the "value" of constitutional rights are an unwieldy tool for ensuring compliance with the Constitution. History and tradition do not afford any sound guidance concerning the precise value that juries should place on constitutional protections. Accordingly, were such damages available, juries would be free to award arbitrary amounts without any evidentiary basis, or to use their unbounded discretion to punish unpopular defendants. Cf. Gertz, 418 U.S., at 350. Such damages would be too uncertain to be of any great value to plaintiffs, and would inject caprice into determinations of damages in § 1983 cases. We therefore hold that damages based on the abstract "value" or "importance" of constitutional rights are not a permissible element of compensatory damages in such cases.

B

Respondent further argues that the challenged instructions authorized a form of "presumed" damages -- a remedy that is both compensatory in nature and traditionally part of the range of tort law remedies. Alternatively, respondent argues that the erroneous instructions were at worst harmless error.

Neither argument has merit. Presumed damages are a substitute for ordinary compensatory damages, not a supplement for an award that fully compensates the alleged injury. When a plaintiff seeks compensation for an injury that is likely to have occurred but difficult to establish, some form of presumed damages may possibly be appropriate. See Carey, 435 U.S., at 262; cf. Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 760-761 (1985) (opinion of Powell, J.); Gertz v. Robert Welch, Inc., supra, at 349. In those circumstances, presumed damages may roughly approximate the harm that the plaintiff suffered and thereby compensate for harms that may be impossible to measure. As we earlier explained, the instructions at issue in this case did not serve this purpose, but instead called on the jury to measure damages based on a subjective evaluation of the importance of particular constitutional values. Since such damages are wholly divorced from any compensatory purpose, they cannot be justified as presumed damages. Moreover, no rough substitute for compensatory damages was required in this case, since the jury was fully authorized to compensate respondent for both monetary and nonmonetary harms caused by petitioners' conduct.

The appropriate starting point of any analysis in this area is this Court's opinion in Carey v. Piphus, 435 U.S. 247 (1978). In Carey, we recognized that "the basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights." Id., at 254; see ante, at 306-307. We explained, however, that application of that principle to concrete cases was not a simple matter. 435 U.S., at 257. "It is not clear," we stated, "that common-law tort rules of damages will provide a complete solution to the damages issue in every § 1983 case." Id., at 258. Rather, "the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question -- just as the common-law rules of damages themselves were defined by the interests protected in various branches of tort law." Id., at 259.

Applying those principles, we held in Carey that substantial damages should not be awarded where a plaintiff has been denied procedural due process but has made no further showing of compensable damage. We repeated, however, that "the elements and prerequisites for recovery of damages appropriate to compensate injuries caused by the deprivation of one constitutional right are not necessarily appropriate to compensate injuries caused by the deprivation of another." Id., at 264-265. We referred to cases that support the award of substantial damages simply upon a showing that a plaintiff was wrongfully deprived of the right to vote, without requiring any further demonstration of damages. Id., at 264-265, n. 22.

Following Carey, the Courts of Appeals have recognized that invasions of constitutional rights sometimes cause injuries that cannot be redressed by a wooden application of common-law damages rules. In Hobson v. Wilson, 237 U. S. App. D. C. 219, 275-281, 737 F.2d 1, 57-63 (1984), cert. denied, 470 U.S. 1084 (1985), which the Court cites, ante, at 309, and n. 13, plaintiffs claimed that defendant Federal Bureau of Investigation agents had invaded their First Amendment rights to assemble for peaceable political protest, to associate with others to engage in political expression, and to speak on public issues free of unreasonable government interference. The District Court found that the defendants had succeeded in diverting plaintiffs from, and impeding them in, their protest activities. The Court of Appeals for the District of Columbia Circuit held that that injury to a First Amendment-protected interest could itself constitute compensable injury wholly apart from any "emotional distress, humiliation and personal indignity, emotional pain, embarassment, fear, anxiety and anguish" suffered by plaintiffs. 237 U. S. App. D. C., at 280, 737 F.2d, at 62 (footnotes omitted). The court warned, however, that that injury could be compensated with substantial damages only to the extent that it was "reasonably quantifiable"; damages should not be based on "the so-called inherent value of the rights violated." Ibid.

I believe that the Hobson court correctly stated the law. When a plaintiff is deprived, for example, of the opportunity to engage in a demonstration to express his political views, "[it] is facile to suggest that no damage is done." Dellums v. Powell, 184 U. S. App. D. C. 275, 303, 566 F.2d 167, 195 (1977). Loss of such an opportunity constitutes loss of First Amendment rights "'in their most pristine and classic form.'" Ibid., quoting Edwards v. South Carolina, 372 U.S. 229, 235 (1963). There is no reason why such an injury should not be compensable in damages. At the same time, however, the award must be proportional to the actual loss sustained.

The instructions given the jury in this case were improper because they did not require the jury to focus on the loss actually sustained by respondent. Rather, they invited the jury to base its award on speculation about "the importance of the right in our system of government" and "the role which this right has played in the history of our republic," guided only by the admonition that "[in] one sense, no monetary value we place on Constitutional rights can measure their importance in our society or compensate a citizen adequately for their deprivation." App. 96. These instructions invited the jury to speculate on matters wholly detached from the real injury occasioned respondent by the deprivation of the right. Further, the instructions might have led the jury to grant respondent damages based on the "abstract value" of the right to procedural due process -- a course directly barred by our decision in Carey.

The Court therefore properly remands for a new trial on damages. I do not understand the Court, however, to hold that deprivations of constitutional rights can never themselves constitute compensable injuries. Such a rule would be inconsistent with the logic of Carey, and would defeat the purpose of § 1983 by denying compensation for genuine injuries caused by the deprivation of constitutional rights.

Memphis v. Statchura

Memphis v. Statchura

Notes on Memphis Community School District v. Stachura

1. After Stachura, may the plaintiff seek compensation for the loss of his constitutional right as a separate category of damages?

2. May a person convicted based upon evidence obtained in violation of the Fourth Amendment recover damages for his arrest, conviction and incarceration? In Townes v. City of New York, 176 F. 3d 138 (2d Cir. 1999), Townes was stopped while a passenger in a taxi cab, which led to the discovery of two loaded handguns and cocaine. After the trial court denied his motion to suppress, Townes pled guilty to weapons and drug possession charges. Over two years later, the court of appeals reversed Townes' conviction on the ground that the officers lacked probable cause to stop and search the taxicab, and the indictment was dismissed. Townes brought a Section 1983 action for violation of his Fourth Amendment rights and sought damages for harm he suffered as a result of his arrest, conviction and incarceration. The court of appeals held that Townes failed to state a claim that the unconstitutional stop and search was a proximate cause of the damages he sought:

   The fruit of the poisonous tree doctrine cannot link the unreasonable seizure and search to Townes's conviction and incarceration because this evidentiary doctrine is inapplicable to civil §1983 actions. . . . The fruit of the poisonous tree doctrine is calculated "to deter future unlawful police conduct" and protect liberty by creating an incentive–avoidance of suppression of illegally seized evidence–for state actors to respect the constitutional rights of suspects. . . . Here the deterrence objective has already been achieved (though late) by the rulings [reversing the trial judge's denial of the motion to suppress]; allowing this and other §1983 actions to proceed solely on a fruit of the poisonous tree theory of damages would vastly overdeter state actors. . . and would distort basic tort principles of proximate causation.

   Civil actions brought under §1983 are analogous to state common law tort actions, serving primarily the tort objective of compensation. . . . The fruit of the poisonous tree doctrine, however, disregards traditional causation analysis to serve different objectives. . . . To extend the doctrine to §1983 actions would impermissibly recast the relevant proximate cause inquiry to one of taint and attenuation. . . .

   In a § 1983 suit, constitutionally invalid police conduct that by itself causes little or no harm is assessed on ordinary principles of tort causation and entails little or nominal damages. The fruit of the poisonous tree doctrine is not available to elongate the chain of causation.

   The next inquiry is whether Townes's conviction and incarceration were proximately (or legally) caused by the defendants' constitutional torts. It is arguable that such seizures and searches could foreseeably cause the discovery of inculpatory evidence, but as a matter of law, the unconstitutional seizure and search of Townes's person was not a proximate cause of his conviction because of (at least) one critical circumstance: the trial court's refusal to suppress the evidence, which is an intervening and superseding cause of Townes's conviction.

   * * * * *

   Townes is foreclosed from recovery for a second, independent reason: the injury he pleads (a violation of his Fourth Amendment right to be free from unreasonable searches and seizures) does not fit the damages he seeks (compensation for his conviction and incarceration). . . . The evil of an unreasonable search or seizure is that it invades privacy, not that it uncovers crime, which is no evil at all.

   No Fourth Amendment value would be served if Townes, who illegally possessed firearms and narcotics, reaps the financial benefit he seeks. Townes has already reaped an enormous benefit by reason of the illegal seizure and search to which he was subjected: his freedom. . . . Now Townes seeks damages to compensate him for his conviction and time served, on top of the benefit he enjoys as a result of the suppression. That remedy would vastly overdeter police officers and would result in a wealth transfer that "is peculiar, if not perverse."

   Townes, 176 F. 3d at 145-48. What damages, if any, may Townes recover? May a party recover damages when he is interrogated without benefit of Miranda warnings? See California Attorneys for Criminal Justice v. Butts, 195 F. 3d 1039 (9th Cir. 1999). If so, what is the measure of damages?

3. Does Stachura bar courts in Section 1983 actions from ever permitting the jury to presume damages from the constitutional violation? See Walje v. City of Winchester, 827 F. 2d 10, 13 (6th Cir. 1987) ("[G]eneral damages may be appropriate [for violation of plaintiff's First Amendment rights] because injury was likely to have occurred, but the specific elements of the damage were difficult to pinpoint because of the nature of the injury. . . . [T]his form of general damage award is commonly granted in actions for common law speech torts. . . .The Stachura Court admonished us that . . . it is proper to look to common law tort principles in granting presumed damages in cases where specific damages are difficult to establish."); 18 U.S.C. § 2520 (damages for interception or disclosure of wire, oral or electronic communication in violation of federal statute are the greater of a) actual damages suffered by the plaintiff and any profits made by violator, or b) statutory damages of whichever is the greater of $100 a day for each day of the violation, or $10,000).

4. Is the jury in a Section 1983 action always entitled to award only nominal damages to the plaintiff if the jury finds a violation of the Constitution? In Westcott v. Crinklaw, 133 F. 3d 658 (8th Cir. 1998), Vivian Westcott filed a Section 1983 action seeking damages after an Omaha police officer shot her husband to death during an attempted burglary. The trial judge instructed the jury, "If you find for the plaintiff, but find that the loss resulting from Arden Westcott's death has no monetary value, then you must return a verdict for the plaintiff in the nominal amount of $1.00." Id., at 661 n.4. The jury returned a verdict for Westcott but awarded only one dollar in damages.

   The court of appeals reversed, finding that the trial judge erred when it gave the nominal damages instruction:

   In general, there are three situations in which a jury may reasonably conclude that compensatory damages are inappropriate despite a finding that excessive force was used. First, when there is evidence that both justifiable and unjustifiable force might have ben used and the injury may have resulted from the use of justifiable force. . . Second, when the plaintiff's evidence concerning injury is not credible. . . . Third, when the plaintiff'‘s injuries have no monetary value or are insufficient to justify with reasonable certainty. . . If, however, it is clear from the undisputed evidence that a plaintiff's injuries were caused by a defendant's use of force, then the jury's failure to award some compensatory damages should be set aside and a new trial ordered.

   * * * * *

   It is undisputed that Westcott received fatal injuries, and the parties stipulated to funeral expenses of $3262.64. There was no issue of injury, and the court therefore erred in instructing the jury on nominal damages.

   Westcott, 133 F. 3d at 661-62.

5. Congress limited the damages remedy available to prisoners when it enacted the Prison Litigation Reform Act of 1995 (PLRA). 42 U.S.C. §1997e(e) provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."
   1. In Harris v. Garner, 190 F. 3d 1279 (11th Cir. 1999), a male inmate of Georgia's Dooly State Prison filed a Section 1983 action seeking damages suffered when members of the prison's "Tactical Squad" subjected him to a body cavity search in the presence of female staff and forced him to "dry shave" with an unlubricated razor. The court of appeals upheld dismissal of the claim for damages, holding that the "dry shave" did not satisfy the physical injury requirement of the PRLA:

      Section 1997e(e) does not define "physical injury." Wade asks us to interpret this part of the statute to mean that any allegation of physical injury is sufficient, including physical manifestations of purely mental or emotional injury. But we think such an interpretation would undermine the statute's essential purpose–"to curtail frivolous and abusive prisoner litigation." [citation omitted]. Congress was clearly trying to preclude some part of the litigation routinely pursued by prison inmates from being brought, and Wade's reading of the statute would almost render the congressional exclusion an empty set. Further, allowing prisoners to surmount this new statutory hurdle with purely trivial allegations of physical injury would make no sense in light of our basic understanding that "routine discomfort is part of the penalty that criminal offenders pay for their offenses against society." Hudson v. McMillian, 503 U.S. 1,9, 112 S. ct. 995, 1000, 117 L. Ed 2d 156 (1992)(citation and internal quotation marks omitted).

      We therefore join the Fifth Circuit in fusing the physical injury analysis under section 1997e(e) with the framework set out by the Supreme Court in Hudson for analyzing claims brought under the Eighth Amendment for cruel and unusual punishment, and hold that in order to satisfy section 1997e(e) the physical injury must be more than de minimis, but need not be significant.

      Harris, 190 F. 3d at 1286.

      Having found that because of the absence of physical injury Wade could not recover damages in a Section 1983 action for the mental or emotional injuries caused by the violation of his constitutional rights, the court next addressed whether the PLRA was constitutional:

      Wade argues that the statutory bar to claims not involving physical injury amounts to a denial of due process under the Fifth Amendment. Courts and commentators have approached the issue of whether Congress can tailor jurisdiction so as to preclude all effective remedies for a claimed constitutional violation with so much dodging and trepidation that the D.C. Circuit has been led to write that "it has become something of a time-honored tradition for the Supreme Court and lower federal courts to find that Congress did not intend to preclude altogether judicial review of constitutional claims in light of the serious due process concerns that such preclusion would raise." [citation omitted]. And we think that if section 1997e(e) actually precluded all effective judicial review, the statute would raise constitutional questions that would be, at the very least troublesome. Because we find that the statute is best read as only a limitation on a damages remedy, however, we need not address the vexing jurisdictional question today.

      * * * * *

      Despite Wade's ringing invocation of Marbury v. Madison, that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury," [citation omitted], this case is not about a denial of the law's protection. What this issue boils down to is whether or not the Constitution of the United States mandates a tort remedy for every constitutional violation; and the answer is certainly that it does not.

      * * * * *

      Whatever our ultimate resolution of Congress' power to restrict judicial enforcement of federal rights, it is clear that Congress has wide latitude to decide how violations of those rights shall be remedied. In this case, Congress has chosen to enforce prisoners' constitutional rights through suits for declaratory and injunctive relief, and not through actions for damages. It is true that practical application of the congressional scheme will mean that some plaintiffs will be without any relief. [citation omitted]. But "the Constitution does not demand an individually effective remedy for every constitutional violation." . . . If it did, we would have to rule unconstitutional our doctrines of absolute and qualified immunity.

      Harris, 190 F. 3d at 1287-89. See also Davis v. District of Columbia, 158 F. 3d 1342 (D.C. Cir. 1998) (PLRA is rationally related to legitimate government interest in cutting back meritless prisoner litigation and therefore satisfies Equal Protection Clause of United States Constitution). Could Wade obtain injunctive relief? See Chapter V(B), infra.

   2. Does the PLRA bar an action for nominal damages? In Davis v. District of Columbia, 158 F. 3d 1342 (D.C. Cir. 1998), the court of appeals held that the district court had properly dismissed a claim for damages filed by an inmate complaining of disclosure of his medical record that indicated that plaintiff was dying of AIDS, because the suit did not allege any physical injury within the meaning of the PLRA. The court then considered whether the PLRA barred a suit for nominal damages:

      The interpretive issue posed by § 1997e(e) is clearly harder here than for punitive damages. The theory of such a lawsuit dispenses with any need for injury other than the deprivation of the right itself. . . and prisoners are presumably a good deal less likely to embark on a lawsuit if there is no prospect of a pecuniary reward. But Davis never sought nominal damages. . . . Accordingly. . . we still find nothing in his complaint that can survive the pleading stage.

      Davis, 158 F. 3d at 1349. See also Harris v. Garner, 190 F. 3d 1279, 1288 n.9 (11th Cir. 1999)("We express no view on whether section 1997e(e) would bar an action for nominal damages that are normally available for the violation of certain absolute constitutional rights without any showing of actual injury.").

6. In Farrar v. Hobby, 506 U.S. 103 (1992), the United States Supreme Court held that a plaintiff who recovers nominal damages is a "prevailing party" eligible for recovery of attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 ("In any action or proceeding to enforce a provision of section[ ] 1983. . ., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."):

   [A] judicial pronouncement that the defendant has violated the Constitution, unaccompanied by an enforceable judgment on the merits, does not render the plaintiff a prevailing party. . . . No material alteration of the legal relationship between the parties occurs until the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant. A plaintiff may demand payment for nominal damages no less than he may demand payment for millions of dollars in compensatory damages. A judgment for damages in any amount, whether compensatory or nominal, modifies defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay.

   Farrar, 506 U.S. at 112-13. While finding that a plaintiff who recovers nominal damages is a prevailing party, the Court further ruled that fact that only nominal damages were awarded could affect the reasonableness of any fee award:

   "Where recovery of private damages is the purpose of . . . civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought." . . . [T]he awarding of nominal damages . . . highlights the plaintiff's failure to prove actual, compensable injury. . . . When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief . . . the only reasonable fee is usually no fee at all.

   Farrar, 506 U.S. at 114-15. Should the recovery of only nominal damages always dictate that the reasonable attorney fee is no fee at all? If attorney's fees are recoverable, may defense counsel apprise the jury that if it awards nominal damages, plaintiff may seek attorney's fees? See Brooks v. Cook, 938 F. 2d 1048 (9th Cir. 1991).

Smith v. Wade

During trial, the District Judge entered a directed verdict for two of the defendants. He instructed the jury that Wade could make out an Eighth Amendment violation only by showing "physical abuse of such base, inhumane and barbaric proportions as to shock the sensibilities." Tr. 639. Further, because of Smith's qualified immunity as a prison guard, see Procunier v. Navarette, 434 U.S. 555 (1978), the judge instructed the jury that Wade could recover only if the defendants were guilty of "gross negligence" (defined as "a callous indifference or a thoughtless disregard for the consequences of one's act or failure to act") or "[egregious] failure to protect" (defined as "a flagrant or remarkably bad failure to protect") Wade. Tr. 641-642. He reiterated that Wade could not recover on a showing of simple negligence. Id., at 644.

The District Judge also charged the jury that it could award punitive damages on a proper showing:

"If you find the issues in favor of the plaintiff, and if the conduct of one or more of the defendants is shown to be a reckless or callous disregard of, or indifference to, the rights or safety of others, then you may assess punitive or exemplary damages in addition to any award of actual damages.

The jury returned verdicts for two of the three remaining defendants. It found Smith liable, however, and awarded $ 25,000 in compensatory damages and $ 5,000 in punitive damages. The District Court entered judgment on the verdict, and the Court of Appeals affirmed. Wade v. Haynes, 663 F.2d 778 (1981).

In this Court, Smith attacks only the award of punitive damages. He does not challenge the correctness of the instructions on liability or qualified immunity, nor does he question the adequacy of the evidence to support the verdict of liability for compensatory damages.

II

Section 1983 is derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13. It was intended to create "a species of tort liability" in favor of persons deprived of federally secured rights. Carey v. Piphus, 435 U.S. 247, 253 (1978); Imbler v. Pachtman, 424 U.S. 409, 417 (1976). We noted in Carey that there was little in the section's legislative history concerning the damages recoverable for this tort liability, 435 U.S., at 255. In the absence of more specific guidance, we looked first to the common law of torts (both modern and as of 1871), with such modification or adaptation as might be necessary to carry out the purpose and policy of the statute. Id., at 253-264. We have done the same in other contexts arising under § 1983, especially the recurring problem of common-law immunities.²

Smith correctly concedes that "punitive damages are available in a 'proper' § 1983 action . . . ." Carlson v. Green, 446 U.S. 14, 22 (1980); Brief for Petitioner 8. Although there was debate about the theoretical correctness of the punitive damages doctrine in the latter part of the last century, the doctrine was accepted as settled law by nearly all state and federal courts, including this Court. It was likewise generally established that individual public officers were liable for punitive damages for their misconduct on the same basis as other individual defendants. See also Scott v. Donald, 165 U.S. 58, 77-89 (1897) (punitive damages for constitutional tort). Further, although the precise issue of the availability of punitive damages under § 1983 has never come squarely before us, we have had occasion more than once to make clear our view that they are available; indeed, we have rested decisions on related questions on the premise of such availability.⁵

Smith argues, nonetheless, that this was not a "proper"case in which to award punitive damages. More particularly, he attacks the instruction that punitive damages could be awarded on a finding of reckless or callous disregard of or indifference to Wade's rights or safety. Instead, he contends that the proper test is one of actual malicious intent -- "ill will, spite, or intent to injure."⁶ Brief for Petitioner 9. He offers two arguments for this position: first, that actual intent is the proper standard for punitive damages in all cases under § 1983; and second, that even if intent is not always required, it should be required here because the threshold for punitive damages should always be higher than that for liability in the first instance. We address these in turn.

III

Smith does not argue that the common law, either in 1871 or now, required or requires a showing of actual malicious intent for recovery of punitive damages. See Tr. of Oral Arg. 5-6, 9.

Perhaps not surprisingly, there was significant variation (both terminological and substantive) among American jurisdictions in the latter 19th century on the precise standard to be applied in awarding punitive damages -- variation that was exacerbated by the ambiguity and slipperiness of such common terms as "malice" and "gross negligence." Most of the confusion, however, seems to have been over the degree of negligence, recklessness, carelessness, or culpable indifference that should be required -- not over whether actual intent was essential. On the contrary, the rule in a large majority of jurisdictions was that punitive damages (also called exemplary damages, vindictive damages, or smart money) could be awarded without a showing of actual ill will, spite, or intent to injure.

This Court so stated on several occasions, before and shortly after 1871.

The large majority of state and lower federal courts were in agreement that punitive damages awards did not require a showing of actual malicious intent; they permitted punitive awards on variously stated standards of negligence, recklessness, or other culpable conduct short of actual malicious intent.¹²

The same rule applies today. The Restatement (Second)of Torts (1979), for example, states: "Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." § 908(2) (emphasis added); see also id., Comment b. Most cases under state common law, although varying in their precise terminology, have adopted more or less the same rule, recognizing that punitive damages in tort cases may be awarded not only for actual intent to injure or evil motive, but also for recklessness, serious indifference to or disregard for the rights of others, or even gross negligence.

The remaining question is whether the policies and purposes of § 1983 itself require a departure from the rules of tort common law. As a general matter, we discern no reason why a person whose federally guaranteed rights have been violated should be granted a more restrictive remedy than a person asserting an ordinary tort cause of action. Smith offers us no persuasive reason to the contrary.

Smith's argument, which he offers in several forms, is that an actual-intent standard is preferable to a recklessness standard because it is less vague. He points out that punitive damages, by their very nature, are not awarded to compensate the injured party. He concedes, of course, that deterrence of future egregious conduct is a primary purpose of both § 1983 and of punitive damages. But deterrence, he contends, cannot be achieved unless the standard of conduct sought to be deterred is stated with sufficient clarity to enable potential defendants to conform to the law and to avoid the proposed sanction. Recklessness or callous indifference, he argues, is too uncertain a standard to achieve deterrence rationally and fairly. A prison guard, for example, can be expected to know whether he is acting with actual ill will or intent to injure, but not whether he is being reckless or callously indifferent.

Smith's argument, if valid, would apply to ordinary tort cases as easily as to § 1983 suits; hence, it hardly presents an argument for adopting a different rule under § 1983. In any event, the argument is unpersuasive. While, arguendo, an intent standard may be easier to understand and apply to particular situations than a recklessness standard, we are not persuaded that a recklessness standard is too vague to be fair or useful. In the Milwaukee case, 91 U.S. 489 (1876), we adopted a recklessness standard rather than a gross negligence standard precisely because recklessness would better serve the need for adequate clarity and fair application. Almost a century later, in the First Amendment context, we held that punitive damages cannot be assessed for defamation in the absence of proof of "knowledge of falsity or reckless disregard for the truth." Gertz, 418 U.S., at 349. Our concern in Gertz was that the threat of punitive damages, if not limited to especially egregious cases, might "inhibit the vigorous exercise of First Amendment freedoms," ibid. -- a concern at least as pressing as any urged by Smith in this case. Yet we did not find it necessary to impose an actual-intent standard there. Just as Smith has not shown why § 1983 should give higher protection from punitive damages than ordinary tort law, he has not explained why it gives higher protection than we have demanded under the First Amendment.

More fundamentally, Smith's argument for certainty in the interest of deterrence overlooks the distinction between a standard for punitive damages and a standard of liability in the first instance. Smith seems to assume that prison guards and other state officials look mainly to the standard for punitive damages in shaping their conduct. We question the premise; we assume, and hope, that most officials are guided primarily by the underlying standards of federal substantive law -- both out of devotion to duty, and in the interest of avoiding liability for compensatory damages. At any rate, the conscientious officer who desires clear guidance on how to do his job and avoid lawsuits can and should look to the standard for actionability in the first instance. The need for exceptional clarity in the standard for punitive damages arises only if one assumes that there are substantial numbers of officers who will not be deterred by compensatory damages; only such officers will seek to guide their conduct by the punitive damages standard. The presence of such officers constitutes a powerful argument against raising the threshold for punitive damages.

In this case, the jury was instructed to apply a high standard of constitutional right ("physical abuse of such base, inhumane and barbaric proportions as to shock the sensibilities"). It was also instructed, under the principle of qualified immunity, that Smith could not be held liable at all unless he was guilty of "a callous indifference or a thoughtless disregard for the consequences of [his] act or failure to act," or of "a flagrant or remarkably bad failure to protect" Wade. These instructions are not challenged in this Court, nor were they challenged on grounds of vagueness in the lower courts. Smith's contention that this recklessness standard is too vague to provide clear guidance and reasonable deterrence might more properly be reserved for a challenge seeking different standards of liability in the first instance. As for punitive damages, however, in the absence of any persuasive argument to the contrary based on the policies of § 1983, we are content to adopt the policy judgment of the common law -- that reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law, should be sufficient to trigger a jury's consideration of the appropriateness of punitive damages. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 233 (1970) (Brennan, J., concurring and dissenting).

IV

Smith contends that even if § 1983 does not ordinarily require a showing of actual malicious intent for an award of punitive damages, such a showing should be required in this case. He argues that the deterrent and punitive purposes of punitive damages are served only if the threshold for punitive damages is higher in every case than the underlying standard for liability in the first instance.

This common-law rule makes sense in terms of the purposes of punitive damages. Punitive damages are awarded in the jury's discretion "to punish [the defendant] for his outrageous conduct and to deter him and others like him from similar conduct in the future." Restatement (Second) of Torts § 908(1) (1979). The focus is on the character of the tortfeasor's conduct -- whether it is of the sort that calls for deterrence and punishment over and above that provided by compensatory awards. If it is of such a character, then it is appropriate to allow a jury to assess punitive damages; and that assessment does not become less appropriate simply because the plaintiff in the case faces a more demanding standard of actionability. To put it differently, society has an interest in deterring and punishing all intentional or reckless invasions of the rights of others, even though it sometimes chooses not to impose any liability for lesser degrees of fault.²¹

As with his first argument, Smith gives us no good reason to depart from the common-law rule in the context of § 1983. He argues that too low a standard of exposure to punitive damages in cases such as this threatens to undermine the policies of his qualified immunity as a prison guard. The same reasoning would apply with at least as much force to, for example, the First Amendment and common-law immunities involved in the defamation cases described above. In any case, Smith overstates the extent of his immunity. Smith is protected from liability for mere negligence because of the need to protect his use of discretion in his day-to-day decisions in the running of a correctional facility. See generally Procunier v. Navarette, 434 U.S. 555 (1978); Wood v. Strickland, 420 U.S. 308 (1975). But the immunity on which Smith relies is coextensive with the interest it protects.²² The very fact that the privilege is qualified reflects a recognition that there is no societal interest in protecting those uses of a prison guard's discretion that amount to reckless or callous indifference to the rights and safety of the prisoners in his charge. Once the protected sphere of privilege is exceeded, we see no reason why state officers should not be liable for their reckless misconduct on the same basis as private tortfeasors.²³

Justice Rehnquist, with whom the Chief Justice and Justice Powell join, dissenting.

In my view, a forthright inquiry into the intent of the 42d Congress and a balanced consideration of the public policies at issue compel the conclusion that the proper standard for an award of punitive damages under § 1983 requires at least some degree of bad faith or improper motive on the part of the defendant.

II

At bottom, this case requires the Court to decide when a particular remedy is available under § 1983. Until today, ante, at 34-35, n. 2, the Court has adhered, with some fidelity, to the scarcely controversial principle that its proper role in interpreting § 1983 is determining what the 42d Congress intended. That § 1983 is to be interpreted according to this basic principle of statutory construction, 2A C. Sands, Sutherland on Statutory Construction § 45.05 (4th ed. 1972), is clearly demonstrated by our many decisions relying upon the plain language of the section. See, e. g., Parratt v. Taylor, 451 U.S. 527, 534 (1981); Maine v. Thiboutot, 448 U.S. 1, 4 (1980); Owen v. City of Independence, 445 U.S. 622, 635 (1980). The Court's opinion purports to pursue an inquiry into legislative intent, yet relies heavily upon state-court decisions decided well after the 42d Congress adjourned, see ante, at 48, n. 13. I find these cases unilluminating, at least in part because I am unprepared to attribute to the 42d Congress the truly extraordinary foresight that the Court seems to think it had. The reason our earlier decisions interpreting § 1983 have relied upon common-law decisions is simple: Members of the 42d Congress were lawyers, familiar with the law of their time. In resolving ambiguities in the enactments of that Congress, as with other Congresses, it is useful to consider the legal principles and rules that shaped the thinking of its Members. The decisions of state courts decided well after 1871, while of some academic interest, are largely irrelevant to what Members of the 42d Congress intended by way of a standard for punitive damages.

In an apparent attempt to justify its novel approach to discerning the intent of a body that deliberated more than a century ago, the Court makes passing reference to our decisions relating to common-law immunities under § 1983. These decisions provide no support for the Court's analysis, since they all plainly evidence an attempt to discern the intent of the 42d Congress, albeit indirectly, by reference to the common-law principles known to Members of that body.

III

The Court also purports to rely on decisions, handed down in the second half of the last century by this Court, in drawing up its rule that mere recklessness will support an award of punitive damages. In fact, these decisions unambiguously support an actual-malice standard.

In addition, the decisions rendered by state courts in the years preceding and immediately following the enactment of § 1983 attest to the fact that a solid majority of jurisdictions took the view that the standard for an award of punitive damages included a requirement of ill will. To be sure, a few jurisdictions followed a broader standard; a careful review of the decisions at the time uncovers a number of decisions that contain some reference to "recklessness." And equally clearly, in more recent years many courts have adopted a standard including "recklessness" as the minimal degree of culpability warranting punitive damages.

IV

Even apart from this historical background, I am persuaded by a variety of additional factors that the 42d Congress intended a "wrongful intent" requirement. As mentioned above, punitive damages are not, and never have been, a favored remedy. In determining whether Congress, not bound by stare decisis, would have embraced this often-condemned doctrine, it is worth considering the judgment of one of the most respected commentators in the field regarding the desirability of a legislatively enacted punitive damages remedy: "It is probable that, in the framing of a model code of damages to-day for use in a country unhampered by legal tradition, the doctrine of exemplary damages would find no place." C. McCormick, Law of Damages 276 (1935).

Finally, even if the evidence of congressional intent were less clearcut, I would be persuaded to resolve any ambiguity in favor of an actual-malice standard. It scarcely needs repeating that punitive damages are not a "favorite of the law," see supra, at 58, owing to the numerous persuasive criticisms that have been leveled against the doctrine. The majority reasons that these arguments apply to all awards of punitive damages, not just to those under § 1983; while this is of course correct, it does little to reduce the strength of the arguments, and, if they are persuasive, we should not blindly follow the mistakes other courts have made.

Much of what has been said above regarding the failings of a punitive damages remedy is equally appropriate here. It is anomalous, and counter to deep-rooted legal principles and common-sense notions, to punish persons who meant no harm, and to award a windfall, in the form of punitive damages, to someone who already has been fully compensated. These peculiarities ought to be carefully limited -- not expanded to every case where a jury may think a defendant was too careless, particularly where a vaguely defined, elastic standard like "reckless indifference" gives free reign to the biases and prejudices of juries. In short, there are persuasive reasons not to create a new punitive damages remedy unless it is clear that Congress so intended.

This argument is particularly powerful in a case like this, where the uncertainty resulting from largely random awards of punitive damages will have serious effects upon the performance by state and local officers of their official duties. One of the principal themes of our immunity decisions is that the threat of liability must not deter an official's "willingness to execute his office with the decisiveness and the judgment required by the public good." Scheuer v. Rhodes, 416 U.S. 232, 240 (1974). To avoid stifling the types of initiative and decisiveness necessary for the "government to govern," Dalehite v. United States, 346 U.S. 15, 57 (1953) (Jackson, J., dissenting), we have held that officials will be liable for compensatory damages only for certain types of conduct. Precisely the same reasoning applies to liability for punitive damages. Because punitive damages generally are not subject to any relation to actual harm suffered, and because the recklessness standard is so imprecise, the remedy poses an even greater threat to the ability of officials to take decisive, efficient action. After the Court's decision, governmental officials will be subjected to the possibility of damages awards unlimited by any harm they may have caused or the fact they acted with unquestioned good faith: when swift action is demanded, their thoughts likely will be on personal financial consequences that may result from their conduct -- but whose limits they cannot predict -- and not upon their official duties. It would have been difficult for the Court to have fashioned a more effective Damoclean sword than the open-ended, standardless, and unpredictable liability it creates today.

Moreover, notwithstanding the Court's inability to discern them, there are important distinctions between a right to damages under § 1983 and a similar right under state tort law. A leading rationale seized upon by proponents of punitive damages to justify the doctrine is that "the award is . . . a covert response to the legal system's overt refusal to provide financing for litigation." D. Dobbs, Law of Remedies 221 (1973); K. Redden, Punitive Damages § 2.4(C) (1980). Yet, 42 U. S. C. § 1988 (1976 ed., Supp. V) provides not just a "covert response" to plaintiffs' litigation expenses but an explicit provision for an award to the prevailing party in a § 1983 action of "a reasonable attorney's fee as part of the costs." By permitting punitive damages as well as attorney's fees, § 1983 plaintiffs, unlike state tort law plaintiffs, get not just one windfall but two -- one for them, and one for their lawyer. This difference between the incentives that are present in state tort actions, and those in § 1983 actions, makes the Court's reliance upon the standard for punitive damages in the former entirely inapposite: in fashioning a new financial lure to litigate under § 1983 the Court does not act in a vacuum, but, by adding to existing incentives, creates an imbalance of inducements to litigate that may have serious consequences.

The staggering effect of § 1983 claims upon the work load of the federal courts has been decried time and again. The torrent of frivolous claims under that section threatens to incapacitate the judicial system's resolution of claims where true injustice is involved; those claims which truly warrant redress are in a very real danger of being lost in a sea of meritless suits. Yet, apparently oblivious to this, the Court today reads into the silent, inhospitable terms of § 1983 a remedy that is designed to serve as a "bounty" to encourage private litigation. Dobbs, supra, at 221. In a time when the courts are flooded with suits that do not raise colorable claims, in large part because of the existing incentives for litigation under § 1983, it is regrettable that the Court should take upon itself, in apparent disregard for the likely intent of the 42d Congress, the legislative task of encouraging yet more litigation. There is a limit to what the federal judicial system can bear.

Finally, by unquestioningly transferring the standard of punitive damages in state tort actions to federal § 1983 actions, the Court utterly fails to recognize the fundamental difference that exists between an award of punitive damages by a federal court, acting under § 1983, and a similar award by a state court acting under prevailing local laws. While state courts may choose to adopt such measures as they deem appropriate to punish officers of the jurisdiction in which they sit, the standards they choose to adopt can scarcely be taken as evidence of what it is appropriate for a federal court to do. See Edelman v. Jordan, 415 U.S. 651, 677, n. 19 (1974). When federal courts enforce punitive damages awards against local officials they intrude into sensitive areas of sovereignty of coordinate branches of our Nation, thus implicating the most basic values of our system of federalism. Moreover, by yet further distorting the incentives that exist for litigating claims against local officials in federal court, as opposed to state courts, the Court's decision makes it even more difficult for state courts to attempt to conform the conduct of state officials to the Constitution.

I dissent.

Justice O'Connor, dissenting.

Although I agree with the result reached in Justice Rehnquist's dissent, I write separately because I cannot agree with the approach taken by either the Court or Justice Rehnquist. Both opinions engage in exhaustive, but ultimately unilluminating, exegesis of the common law of the availability of punitive damages in 1871. Although both the Court and Justice Rehnquist display admirable skills in legal research and analysis of great numbers of musty cases, the results do not significantly further the goal of the inquiry: to establish the intent of the 42d Congress. In interpreting § 1983, we have often looked to the common law as it existed in 1871, in the belief that, when Congress was silent on a point, it intended to adopt the principles of the common law with which it was familiar. See, e. g., Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981); Carey v. Piphus, 435 U.S. 247, 255 (1978). This approach makes sense when there was a generally prevailing rule of common law, for then it is reasonable to assume that Congressmen were familiar with that rule and imagined that it would cover the cause of action that they were creating. But when a significant split in authority existed, it strains credulity to argue that Congress simply assumed that one view rather than the other would govern. Particularly in a case like this one, in which those interpreting the common law of 1871 must resort to dictionaries in an attempt to translate the language of the late 19th century into terms that judges of the late 20th century can understand, see ante, at 39-41, n. 8; 61-64, nn. 3, 4, and in an area in which the courts of the earlier period frequently used inexact and contradictory language, see ante, at 45-47, n. 12, we cannot safely infer anything about congressional intent from the divided contemporaneous judicial opinions. The battle of the string citations can have no winner.

Once it is established that the common law of 1871 provides us with no real guidance on this question, we should turn to the policies underlying § 1983 to determine which rule best accords with those policies. In Fact Concerts, we identified the purposes of § 1983 as pre-eminently to compensate victims of constitutional violations and to deter further violations. 453 U.S., at 268. See also Robertson v. Wegmann, 436 U.S. 584, 590-591 (1978); Carey v. Piphus, supra, at 254-257, and n. 9. The conceded availability of compensatory damages, particularly when coupled with the availability of attorney's fees under § 1988, completely fulfills the goal of compensation, leaving only deterrence to be served by awards of punitive damages. We must then confront the close question whether a standard permitting an award of unlimited punitive damages on the basis of recklessness will chill public officials in the performance of their duties more than it will deter violations of the Constitution, and whether the availability of punitive damages for reckless violations of the Constitution in addition to attorney's fees will create an incentive to bring an ever-increasing flood of § 1983 claims, threatening the ability of the federal courts to handle those that are meritorious. Although I cannot concur in Justice Rehnquist's wholesale condemnation of awards of punitive damages in any context or with the suggestion that punitive damages should not be available even for intentional or malicious violations of constitutional rights, I do agree with the discussion in Part V of his opinion of the special problems of permitting awards of punitive damages for the recklessness of public officials. Since awards of compensatory damages and attorney's fees already provide significant deterrence, I am persuaded that the policies counseling against awarding punitive damages for the recklessness of public officials outweigh the desirability of any incremental deterrent effect that such awards may have. Consequently, I dissent.

Smith v. Wade

Smith v. Wade

Notes on Smith v. Wade

1. In Kolstad v. American Dental Association, 527 U.S. 526 (1999), the Supreme Court elaborated on the degree of culpability that must be proven to obtain punitive damages in civil rights cases. The claim for punitive damages in Kolstad arose under the Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(1); this Act authorizes punitive damages in claims for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as under the American Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., where the defendant engaged in discrimination "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." The Kolstad Court found that Congress borrowed the punitive damages standard in the statute from the Court's decision in Smith v. Wade. It granted certiorari to determine whether in order to recover punitive damages under the statute, plaintiff is required to prove not only prohibited intentional discrimination, but must further demonstrate that the discrimination was "egregious."

   The Court held that section 1981a(b)(1) does not demand proof of "egregious" misconduct:

   The terms "malice" and "reckless" ultimately focus on the actor's state of mind. . . . While egregious misconduct is evidence of the requisite mental state . . . §1981a does not . . . require a showing of egregious or outrageous discrimination independent of the employer's state of mind.

   * * * * *

   § 1981's focus on the employer's state of mind gives some effect to Congress' apparent intent to narrow the class of cases for which punitive awards are available to a subset of those involving intentional discrimination. The employer must act with "malice or with reckless indifference to [the plaintiff's] federally protected rights." §1981a(b)(1)(emphasis added). The terms "malice" or "reckless indifference" pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.

   * * * * *

   Applying this standard in the context of § 1981a, an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages.

   There will be circumstances where intentional discrimination does not give rise to punitive damages liability under this standard. In some instances, the employer may simply be unaware of the relevant federal prohibition. There will be cases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational defense or other statutory exception to liability.

   Kolstad, 527 U.S. at 535-37.
   1. a. Where the standard of culpability necessary to prove a violation of the Constitution is intent or recklessness, does proof of the deprivation of a constitutional right likewise discharge the burden of proof necessary to an award of punitive damages? See Iacobucci v. Boulter, 193 F. 3d 14, 26 (1st Cir. 1999) ("We realize that the district court instructed the jury to determine whether Boulter had acted intentionally or recklessly in arresting Iacobucci, and that the jury. . . found that Boulter's conduct fit that proscribed category. This mens rea finding, however, does not clear the way for punitive damages. The state of mind required to make out a cognizable section 1983 claim (at least one grounded in false arrest) differs importantly from that required to justify punitive damages. . . . The former requirement relates only to the conduct, not to the consequences; that is, it entails an intent to do the act, not to effect a civil rights violation."); Hernandez-Tirado v. Artau, 874 F. 2d 866, 870 (1st Cir. 1989) ("Although Artou's dismissal of Hernandez was an "intentional" tort, the dismissal was negligent in respect to the existence of a federally protected right. This ‘negligence' is sufficient for purposes of liability for damages. . . . Artau should have known that his conduct was wrongful; but in the context of conduct that is not, on its face, obviously wrongful, that is insufficient to justify the punitive damages award.").

   2. Will a finding that defendant does not have qualified immunity satisfy the reckless indifference precondition to punitive damages? See Iacobucci v. Boulter, 193 F. 3d 14, 26 n. 8 (1st Cir. 1999) ("In assaying qualified immunity, we inquired into whether Boulter's presumed belief that probable cause existed was objectively reasonable. The focus of punitive damages, however, is subjective."); Soderbeck v. Burnett County, Wis., 752 F. 2d 285, 290-92 (7th Cir. 1985) (Punitive damages are not recoverable, even where reasonable official should have known that conduct violated Constitution and thus is not immune from compensatory damages, unless defendant actually knew actions were forbidden. However, it is not necessary that defendant knew that his conduct violated federal Constitution so long as he knew it violated some law). Under the trial court's charge in Smith, if the jury found Smith violated the Eighth Amendment and was not immune, could the jury have found that plaintiff did not prove reckless indifference necessary to qualify for punitive damages?

2. May punitive damages be awarded if the jury does not give the plaintiff compensatory damages? See Davis v. Locke, 936 F. 2d 1208, 1214 (11th Cir. 1991)("In this circuit, ‘punitive damages may be awarded in a §1983 action even without actual loss.'"); Erwin v. County of Manitowoc, 872 F. 2d 1292, 1299 (7th Cir. 1989)("Although state law may not allow punitive damages without a compensatory award, under federal law, when a jury finds a constitutional violation under a §1983 claim, it may award punitive damages even when it does not award compensatory damages."). If the jury awards nominal damages, must any punitive damage recovery be proportional in amount to the nominal damages? See Edwards v. Jewish Hospital of St. Louis, 855 F. 2d 1345, 1352 (8th Cir. 1988)("While we do not disagree [that the amount of a punitive damages award must bear a reasonable relationship to the amount of compensatory damages awarded], such a general statement has no application to an award of nominal damages. To apply the proportionality rule to a nominal damages award would invalidate most punitive damages awards because only very low punitive damage awards could be said to bear a reasonable relationship to the amount of a nominal damages award. Consequently, in those cases where the trial court has awarded nominal damages and punitive damages, we rely and give great deference to the trial court's discretion as to the amount of punitive damages award it has permitted to stand. We will only reverse where it has been demonstrated that the trial court has abused its discretion.").

3. . In City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), the United States Supreme Court held that punitive damages may not be recovered against municipalities under Section 1983. The Court reasoned that at the time that Congress enacted Section 1983, it was well understood that municipal corporations were immune from punitive damages. The Court also resuscitated the failed Sherman Amendment; it found the absence of any provision for punitive damages in the Amendment, as well as the arguments that the Amendment would place undue financial burdens on local governments and unfairly punish taxpayers, as evidence that Congress did not intend to displace the common law immunity from damages when it enacted Section 1983. Finally, the Court concluded that considerations of public policy do not countenance rejection of the common law immunity of municipalities from punitive damages:

   Regarding retribution, it remains true that an award of punitive damages against a municipality "punishes" only the taxpayers, who took no part in the commission of the tort. These damages are assessed over and above the amount necessary to compensate the injured party. Thus, there is no question here of equitably distributing the losses resulting from official misconduct.

   * * * * *

   To the extent that the purposes of §1983 have any bearing on this punitive rationale, they do not alter our analysis. The court previously has indicated that punitive damages might be awarded in appropriate circumstances in order to punish violations of constitutional rights, Carey v. Piphus, 435 U.S. 247, 257, n.11 (1978), but it has never suggested that punishment is as prominent a purpose under the statute as are compensation and deterrence.

   * * * * *

   [T]he deterrence rationale of §1983 does not justify making punitive damages available against a municipa.

   First, it is far from clear that municipal officials, including those at the policymaking level, would be deterred from wrongdoing by the knowledge that large punitive damage awards could be assessed based upon the wealth of their municipality. Indemnification may not be available to the municipality under local law, and even if it were, officials likely will not be able themselves to pay such sizeable awards. Thus, assuming, arguendo, that the responsible official is not impervious to shame and humiliation, the impact on the individual tortfeasor of this deterrence in the air is uncertain.

   There also is no reason to suppose that corrective action, such as the discharge of offending officials who were appointed and the public excoriation of those who were elected, will not occur unless punitive damages are awarded against the municipality. . . . [T]he compensatory damages that are available against a municipality may themselves induce the public to vote the wrongdoers out of office.

   Moreover, there is available a more effective means of deterrence. By allowing juries and courts to assess punitive damages in appropriate circumstances against the offending official, based upon his personal financial resources, the statute directly advances the public's interest in preventing repeated constitutional deprivations.

   * * * * *

   Finally, although the benefits associated with awarding punitive damages against municipalities under § 1983 are of doubtful character, the costs may be very real. In light of the Court's decision last term in Maine v. Thiboutot, 448 U.S. 1 (1980), the § 1983 damages remedy may now be available for violations of federal statutory as well as constitutional law. . . . Under this expanded liability, municipalities and other units of state and local government face the possibility of having to assure compensation for persons harmed by abuses of governmental authority covering a large range of activity in everyday life. To add the burden of exposure for the malicious of individual government employees may create a serious risk to the financial integrity of these governmental entities.

   City of Newport, 453 U.S. at 267-70.
   1. In Cornwell v. City of Riverside, 896 F. 2d 398 (9th Cir. 1990), the court of appeals held that no federal policy precludes a municipality from paying a punitive damages judgment assessed against its employees:

      It is well argued on behalf of Cornwell that a prohibition on indemnification would be in harmony with the Court's analysis of punitive damages. Such a result, however, is not compelled by what the Court has said [in City of Newport]. When the city decides that it is in its best interest to pay, the taxpayers have decided through their representatives that it is to their benefit as taxpayers to help out the officers. . . .

      If § 1983 were construed to prohibit a municipality from paying punitive damages, there would be occasions when civil rights plaintiffs would go unsatisfied because the individual defendants lack the assets to pay. If § 1983 were construed to mean that the successful plaintiff had the option to accept or reject punitive damages that the municipality was paying on behalf of employees, the plaintiff would have an extraordinary weapon with which to negotiate with individual defendants. We do not believe we should add an additional remedy to those already provided the civil rights plaintiff. Cornwell, 896 F. 2d at 400.

   2. May the finder of fact consider the existence of an indemnity agreement in fixing the amount of punitive damages against individual local officials? See Mathie v. Fries, 121 F. 3d 808, 816 (2d Cir. 1997) ("Although we do not decide the question whether a fact-finder can rely upon the existence of an indemnity agreement in order to increase an award of punitive damages, we rule that a fact-finder can properly consider the existence of such an agreement is obviating the need to determine whether a defendant's limited financial circumstances justifies some reduction in the amount that otherwise would be awarded. It would be entirely inappropriate for a defendant to raise the issue of his limited financial resources if there existed an indemnity agreement placing the burden of paying the award on someone else's shoulders.").

B. Introduction to Equitable Relief

1. Why would a plaintiff seek equitable relief under Section 1983?

2. How should courts apply the general standards governing the awarding of equitable relief where the plaintiff has proven a constitutional violation?
   1. Is the remedy at law generally adequate to redress deprivations of a constitutional right? See Elrod v. Burns, 427 U.S. 347, 373 (1976) ("the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury").

   2. Is any legal remedy available where the State itself is responsible for the invasion of constitutional liberties? See Rum Creek Coal Sales, Inc., v. Caperton, 926 F. 2d 356, 362 (4th Cir. 1991) ("[T]he conclusion that, in most circumstances, ‘the possibility that adequate compensatory. . . relief will be available at a later date . . . weighs heavily against a claim of irreparable harm' [citation omitted] is not present here. The . . . narrowing of remedies available under § 1983 limits the Company's ability to obtain damages [against the West Virginia State Police]."); United States v. State of New York, 708 F. 2d 92, 93 (2d Cir. 1983) (Irreparable harm suffered where Eleventh Amendment forecloses federal court damage action against State, even where state law damage action is available). See also Quern v. Jordan, 440 U.S. 332, 345 (1979) ("Nor does our reaffirmance of Edelman [v. Jordan] render § 1983 meaningless insofar as States are concerned. See Ex Parte Young, 209 U.S. 123 (1908)");

   3. Is there an adequate remedy at law where the individual government official has qualified immunity? See Blum v. Schlegel, 830 F. Supp. 712, 728 (W.D. N.Y. 1993) (irreparable injury demonstrated where defendant shielded from damages liability by qualified immunity).

   4. May the government ever successfully argue that the hardship of enjoining the government from contravening the constraints of the Constitution outweighs the hardship of relegating the plaintiff to a damage remedy? See Owen v. City of Independence, Missouri, 445 U.S. 622, 649 (1980) ("[A] municipality has no ‘discretion' to violate the Federal Constitution; its dictates are absolute and imperative.").

   5. Are there ever circumstances where the public interest favors permitting the government to continue to transgress constitutional norms?

3. What standards for the issuance of equitable relief did the Court apply in Part II of the majority opinion in Rizzo v. Goode 432 U.S. 362 (1976) (Chapter II(C), infra). What additional criteria did the Court apply in assessing the propriety of injunctive relief for the constitutional violations in Rizzo?

4. In Mitchum v. Foster, 407 U.S. 225 (1972), the Court held that Section 1983 is one of the expressly authorized exceptions to the federal anti-injunction statute, which provides in pertinent part that a federal court "may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of Congress." 28 U.S.C. § 2283. While finding that Section 1983 conferred authority upon federal courts to issue injunctions against pending state proceedings, the Court made clear that "[i]n so concluding, we do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. These principles, in the context of state criminal prosecutions, were canvassed at length last Term in Younger v. Harris. . . ." Mitchum, 407 U.S. at 225.

   In Younger v. Harris, 401 U.S. 37 (1971) the Court held that considerations of comity barred federal courts from enjoining pending state criminal prosecutions absent extraordinary circumstances:

   The precise reasons for this longstanding public policy against federal court interference with state court proceedings have never been specifically identified but the primary sources of the policy are plain. One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief. . . .

   This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as "Our Federalism." . . . What the concept [represents] is a system in which there is sensitivity to the legitimate interests of both the State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.

   Younger, 401 U.S. at 43-44. See also Samuels v. Mackell, 401 U.S. 66, 73 (1971) (the "same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory injunction, and that where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well."). The Younger Court held that the mere fact that the statute that is the subject of the criminal prosecution is on its face unconstitutional does not merit an injunction against a good-faith prosecution, presumably because the Section 1983 plaintiff may raise the constitutional issue as a defense to the state court criminal proceeding. The scope of the Younger bar to interference with pending state proceedings has been the subject of considerable Supreme Court attention. See Martin A. Schwartz and John E. Kirklin, Section 1983 Litigation: Claims, Fees and Defenses, §§ 14.6-14.11.

Ashcroft v. Mattis

Appellee's 18-year-old son was shot and killed by police while attempting to escape arrest. Appellee filed suit under 42 U.S.C. § 1983 against the police officers in the United States District Court for the Eastern District of Missouri. He sought to recover damages, and also to obtain a declaratory judgment that the Missouri statutes authorizing the police action were unconstitutional.¹ The District Court held that a defense of good faith had been established, and denied both forms of relief. No appeal was taken from the denial of damages, but appellee did seek review of the denial of declaratory relief. The Eighth Circuit held that declaratory relief was available and remanded for consideration of the merits of the constitutional issue. Mattis v. Schnarr, 502 F. 2d 588 (1974).

On remand, appellee filed an amended complaint, in which he made no claim for damages. The Missouri Attorney General was allowed to intervene in defense of the statutes, and the case was then submitted on stipulated facts. The District Court upheld the statutes, Mattis v. Schnarr, 404 F.Supp. 643 (1975), but was reversed by a divided Court of Appeals, sitting en banc, 547 F. 2d 1007 (1976). The Attorney General brought an appeal under 28 U.S.C.§ 1254(2) from the holding that the state statutes were unconstitutional.

Although we are urged to consider the merits of the Court of Appeals' holding, we are unable to do so, because this suit does not now present a live "case or controversy." This suit was brought to determine the police officers' liability for the death of appellee's son. That issue has been decided, and there is no longer any possible basis for a damages claim. Nor is there any possible basis for a declaratory judgment. For a declaratory judgment to issue, there must be a dispute which "calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 242 (1937). See also Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). Here, the District Court was asked to answer the hypothetical question whether the defendants would have been liable apart from their defense of good faith. No "present right" of appellee was at stake. Indeed, appellee's primary claim of a present interest in the controversy is that he will obtain emotional satisfaction from a ruling that his son's death was wrongful. Appellee's Motion to Affirm 5-6, n. 1. Emotional involvement in a lawsuit is not enough to meet the case-or-controversy requirement; were the rule otherwise, few cases could ever become moot.

The judgment of the Court of Appeals is vacated, and the case is remanded with instructions to direct the District Court to dismiss the second amended complaint.

It is so ordered.

Notes on Ashcroft v. Mattis

1. After Ashcroft, is there any way to challenge the constitutionality of the Missouri statute authorizing state police officers to use deadly force against a fleeing felon following notice of arrest?
   1. Is there any circumstance under which the shooting officer's reliance on the Missouri statute would not confer qualified immunity in an action for damages against the police officers?

   2. What would be the outcome if plaintiff brought a damage action against the State? Against the shooting officers in their official capacities? Against the legislators who passed the statute?

   3. Is there any circumstance under which a case or controversy would exist if the plaintiff sought equitable relief? Even if the fleeing felon survived the shooting, could he establish a live case or controversy for an action for a declaratory judgment? For an injunction against use of deadly force should plaintiff in the future commit a felony, flee and disregard the police officers' notice of intent to arrest?

2. In American Federation of Railroad Police, Inc. (AFRP), v. National Railroad Passenger Corp. (AMTRAK), 832 F. 2d 14 (2d Cir. 1987), the union representing policemen employed by Amtrak brought an action under Section 1983 seeking a declaratory judgment that Amtrak's policy of ejecting homeless persons from Penn Station in New York violated the constitutional rights of the homeless as well as seeking an injunction restraining Amtrak from requiring the policemen to carry out the policy. The court of appeals affirmed the district court's dismissal of the complaint:

   AFRP's claim that Amtrak's policy exposes its members to physical injury is based on the premise that the persons Amtrak policemen seek to eject from Penn Station will respond with violence. The premise is insufficient to support a claim on which relief can be granted. Violent resistance to police orders would of course be unlawful, and no basis has been presented for believing that the routine response of a homeless person to an ejectment order would be violence.

   * * * * *

   AFRP also alleges that Amtrak's policy "is unreasonably causing AFRP member AMTRAK police employees emotional injury, pain and suffering." Such a claim is too abstract to give AFRP standing to invoke the jurisdiction of the federal court. . . . The principal impetus for this lawsuit . . . is the apprehension that the policemen may be exposed to liability for violating the civil rights of the persons ejected from the station. . . . The complaint does not allege that any AFRP member has been sued or threatened with suit. In the circumstances, this claim is based on a series of speculations, including the hypothesis that an ejected person will bring suit; that all defenses, including that of qualified immunity, will fail; and that Amtrak would fail to honor its bylaw-undertaking to indemnify an officer for legal expenses and liability incurred as a result of his good faith compliance with Amtrak instructions. Reliance on such a series of speculative premises reveals a lack of the concreteness necessary to present a genuine case or controversy.

   * * * * *

   The doctrine of standing in the federal courts, which has its principal roots in Article III of the Constitution, generally prohibits a plaintiff from asserting another person's legal rights. . . . [P]rudential considerations lead us to deny a party standing to pursue a claim of a nonparty unless, inter alia, the plaintiff "can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal." [citation omitted].

   AFRP's attempt to assert the rights of the homeless does not meet this test. As noted above, the main impetus of this suit is the policemen's fear of incurring liability for violating the civil rights of those ejected. . . . The concern that policemen not be held liable, however, would be allayed just as well by a ruling that AFRP does not violate homeless persons' constitutional rights as by a ruling that the policy is unconstitutional. Accordingly, there is no reasonable basis for expecting AFRP to press the rights of the homeless with the necessary vigor, and we conclude that AFRP lacks standing to assert those rights.

   AFRP, 832 F. 2d at 16-18; but see Harley v. Schuylkill, 476 F. Supp. 191, 194 (E.D. Pa. 1979) ("The duty to refrain from acting in a manner which would deprive another of constitutional rights is a duty created and imposed by the constitution itself. It is logical to believe that the concurrent right is also one which is created and secured by the constitution. Therefore, we hold that the right to refuse to perform an unconstitutional act is a right ‘secured by the Constitution' within the meaning of §1983.").

3. The Supreme Court ultimately addressed the constitutionality of state statutes authorizing the use of deadly force to prevent the escape of a fleeing felon in Tennessee v. Garner, 471 U.S. 1 (1984). Unlike Ashcroft, the action for damages in Garner arose out of a shooting by City of Memphis--rather than State--police officers pursuant to departmental policy and the Tennessee statute authorizing use of deadly force against fleeing felons. Plaintiff not only sued the individual officers involved in the shooting, but also named the Police Department and City of Memphis as defendants. As in Ashcroft, the officers were granted qualified immunity by virtue of their reliance on the state statute. However, because the local entity defendants were not entitled to assert immunity, the Court proceeded to assess the constitutionality of the City policy and, in turn the Tennessee statute. The Court held that under the Constitution, deadly force may not be used "unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Garner, 471 U.S. at 3.

   Will it always be possible to adjudicate the constitutionality of a state statute by suing a local governmental entity for damages?

4. Could Mattis establish standing to challenge the constitutionality of the Missouri statute on the ground that his claim is "capable of repetition yet evading review?" See Friends of Earth v. Laidlaw Environmental Servs., 528 U.S. 167, 191 (2000) ("[I]f a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of repetition yet evading review will not entitle the complainant to a judicial forum.").

City of Los Angeles v. Lyons

This case began on February 7, 1977, when respondent, Adolph Lyons, filed a complaint for damages, injunction, and declaratory relief in the United States District Court for the Central District of California. The defendants were the City of Los Angeles and four of its police officers. The complaint alleged that on October 6, 1976, at 2 a. m., Lyons was stopped by the defendant officers for a traffic or vehicle code violation and that although Lyons offered no resistance or threat whatsoever, the officers, without provocation or justification, seized Lyons and applied a "chokehold"¹ -- either the "bar arm control" hold or the "carotid-artery control" hold or both -- rendering him unconscious and causing damage to his larynx. Counts I through IV of the complaint sought damages against the officers and the City. Count V, with which we are principally concerned here, sought a preliminary and permanent injunction against the City barring the use of the control holds. That count alleged that the City's police officers, "pursuant to the authorization, instruction and encouragement of Defendant City of Los Angeles, regularly and routinely apply these choke holds in innumerable situations where they are not threatened by the use of any deadly force whatsoever," that numerous persons have been injured as the result of the application of the chokeholds, that Lyons and others similarly situated are threatened with irreparable injury in the form of bodily injury and loss of life, and that Lyons "justifiably fears that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death without provocation, justification or other legal excuse." Lyons alleged the threatened impairment of rights protected by the First, Fourth, Eighth, and Fourteenth Amendments. Injunctive relief was sought against the use of the control holds "except in situations where the proposed victim of said control reasonably appears to be threatening the immediate use of deadly force." Count VI sought declaratory relief against the City, i. e., a judgment that use of the chokeholds absent the threat of immediate use of deadly force is a per se violation of various constitutional rights.

The District Court found that Lyons had been stopped for a traffic infringement and that without provocation or legal justification the officers involved had applied a "Department-authorized chokehold which resulted in injuries to the plaintiff." The court further found that the department authorizes the use of the holds in situations where no one is threatened by death or grievous bodily harm, that officers are insufficiently trained, that the use of the holds involves a high risk of injury or death as then employed, and that their continued use in situations where neither death nor serious bodily injury is threatened "is unconscionable in a civilized society." The court concluded that such use violated Lyons' substantive due process rights under the Fourteenth Amendment. A preliminary injunction was entered enjoining "the use of both the carotid artery and bar arm holds under circumstances which do not threaten death or serious bodily injury." An improved training program and regular reporting and recordkeeping were also ordered.³ The Court of Appeals affirmed in a brief per curiam opinion stating that the District Court had not abused its discretion in entering a preliminary injunction. 656 F.2d 417 (1981). We granted certiorari, 455 U.S. 937 (1982), and now reverse.

II

Since our grant of certiorari, circumstances pertinent to the case have changed. Originally, Lyons' complaint alleged that at least two deaths had occurred as a result of the application of chokeholds by the police. His first amended complaint alleged that 10 chokehold-related deaths had occurred. By May 1982, there had been five more such deaths. On May 6, 1982, the Chief of Police in Los Angeles prohibited the use of the bar-arm chokehold in any circumstances. A few days later, on May 12, 1982, the Board of Police Commissioners imposed a 6-month moratorium on the use of the carotid artery chokehold except under circumstances where deadly force is authorized.

Based on these events, on June 3, 1982, the City filed in this Court a memorandum suggesting a question of mootness, reciting the facts but arguing that the case was not moot. Lyons in turn filed a motion to dismiss the writ of certiorari as improvidently granted. We denied that motion but reserved the question of mootness for later consideration. 457 U.S. 1115 (1982).

In his brief and at oral argument, Lyons has reasserted his position that in light of changed conditions, an injunctive decree is now unnecessary because he is no longer subject to a threat of injury. He urges that the preliminary injunction should be vacated. The City, on the other hand, while acknowledging that subsequent events have significantly changed the posture of this case, again asserts that the case is not moot because the moratorium is not permanent and may be lifted at any time.

We agree with the City that the case is not moot, since the moratorium by its terms is not permanent. Intervening events have not "irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). We nevertheless hold, for another reason, that the federal courts are without jurisdiction to entertain Lyons' claim for injunctive relief.

III

It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy. Flast v. Cohen, 392 U.S. 83, 94-101 (1968); Jenkins v. McKeithen, 395 U.S. 411, 421-425 (1969) (opinion of Marshall, J.). Plaintiffs must demonstrate a "personal stake in the outcome" in order to "assure that concrete adverseness which sharpens the presentation of issues" necessary for the proper resolution of constitutional questions. Baker v. Carr, 369 U.S. 186, 204 (1962). Abstract injury is not enough. The plaintiff must show that he "has sustained or is immediately in danger of sustaining some direct injury" as the result of the challenged official conduct and the injury or threat of injury must be both "real and immediate," not "conjectural" or "hypothetical."

In O'Shea v. Littleton, 414 U.S. 488 (1974), we dealt with a case brought by a class of plaintiffs claiming that they had been subjected to discriminatory enforcement of the criminal law. Among other things, a county magistrate and judge were accused of discriminatory conduct in various respects, such as sentencing members of plaintiff's class more harshly than other defendants.

[W]e observed that "[past] exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects." Id., at 495-496. Past wrongs were evidence bearing on "whether there is a real and immediate threat of repeated injury." Id., at 496. But the prospect of future injury rested "on the likelihood that [plaintiffs] will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners." Ibid. The most that could be said for plaintiffs' standing was "that if [plaintiffs] proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed." Id., at 497. We could not find a case or controversy in those circumstances: the threat to the plaintiffs was not "sufficiently real and immediate to show an existing controversy simply because they anticipate violating lawful criminal statutes and being tried for their offenses. . . ." Id., at 496. It was to be assumed that "[plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners." Id., at 497.

Another relevant decision for present purposes is Rizzo v. Goode, 423 U.S. 362 (1976), a case in which plaintiffs alleged widespread illegal and unconstitutional police conduct aimed at minority citizens and against city residents in general. The Court reiterated the holding in O'Shea that past wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy. The claim of injury rested upon "what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman's perception" of departmental procedures. 423 U.S., at 372. This hypothesis was "even more attenuated than those allegations of future injury found insufficient in O'Shea to warrant [the] invocation of federal jurisdiction." Ibid. The Court also held that plaintiffs' showing at trial of a relatively few instances of violations by individual police officers, without any showing of a deliberate policy on behalf of the named defendants, did not provide a basis for equitable relief.

IV

No extension of O'Shea and Rizzo is necessary to hold that respondent Lyons has failed to demonstrate a case or controversy with the City that would justify the equitable relief sought. Lyons' standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers. Count V of the complaint alleged the traffic stop and choking incident five months before. That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. The additional allegation in the complaint that the police in Los Angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short of the allegations that would be necessary to establish a case or controversy between these parties.

In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner. Although Count V alleged that the City authorized the use of the control holds in situations where deadly force was not threatened, it did not indicate why Lyons might be realistically threatened by police officers who acted within the strictures of the City's policy. If, for example, chokeholds were authorized to be used only to counter resistance to an arrest by a suspect, or to thwart an effort to escape, any future threat to Lyons from the City's policy or from the conduct of police officers would be no more real than the possibility that he would again have an encounter with the police and that either he would illegally resist arrest or detention or the officers would disobey their instructions and again render him unconscious without any provocation.

Under O'Shea and Rizzo, these allegations were an insufficient basis to provide a federal court with jurisdiction to entertain Count V of the complaint.⁸

For several reasons -- each of them infirm, in our view -- the Court of Appeals thought reliance on O'Shea and Rizzo was misplaced and reversed the District Court.

First, the Court of Appeals thought that Lyons was more immediately threatened than the plaintiffs in those cases since, according to the Court of Appeals, Lyons need only be stopped for a minor traffic violation to be subject to the strangleholds. But even assuming that Lyons would again be stopped for a traffic or other violation in the reasonably near future, it is untenable to assert, and the complaint made no such allegation, that strangleholds are applied by the Los Angeles police to every citizen who is stopped or arrested regardless of the conduct of the person stopped. We cannot agree that the "odds," 615 F.2d, at 1247, that Lyons would not only again be stopped for a traffic violation but would also be subjected to a chokehold without any provocation whatsoever are sufficient to make out a federal case for equitable relief. We note that five months elapsed between October 6, 1976, and the filing of the complaint, yet there was no allegation of further unfortunate encounters between Lyons and the police.

Of course, it may be that among the countless encounters between the police and the citizens of a great city such as Los Angeles, there will be certain instances in which strangleholds will be illegally applied and injury and death unconstitutionally inflicted on the victim. As we have said, however, it is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter between the police and a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse. And it is surely no more than speculation to assert either that Lyons himself will again be involved in one of those unfortunate instances, or that he will be arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury.

Second, the Court of Appeals viewed O'Shea and Rizzo as cases in which the plaintiffs sought "massive structural" relief against the local law enforcement systems and therefore that the holdings in those cases were inapposite to cases such as this where the plaintiff, according to the Court of Appeals, seeks to enjoin only an "established," "sanctioned" police practice assertedly violative of constitutional rights. O'Shea and Rizzo, however, cannot be so easily confined to their facts. If Lyons has made no showing that he is realistically threatened by a repetition of his experience of October 1976, then he has not met the requirements for seeking an injunction in a federal court, whether the injunction contemplates intrusive structural relief or the cessation of a discrete practice.

The Court of Appeals also asserted that Lyons "had a live and active claim" against the City "if only for a period of a few seconds" while the stranglehold was being applied to him and that for two reasons the claim had not become moot so as to disentitle Lyons to injunctive relief: First, because under normal rules of equity, a case does not become moot merely because the complained of conduct has ceased; and second, because Lyons' claim is "capable of repetition but evading review" and therefore should be heard. We agree that Lyons had a live controversy with the City. Indeed, he still has a claim for damages against the City that appears to meet all Art. III requirements. Nevertheless, the issue here is not whether that claim has become moot but whether Lyons meets the preconditions for asserting an injunctive claim in a federal forum. The equitable doctrine that cessation of the challenged conduct does not bar an injunction is of little help in this respect, for Lyons' lack of standing does not rest on the termination of the police practice but on the speculative nature of his claim that he will again experience injury as the result of that practice even if continued.

The rule that a claim does not become moot where it is capable of repetition, yet evades review, is likewise inapposite. Lyons' claim that he was illegally strangled remains to be litigated in his suit for damages; in no sense does that claim "evade" review. Furthermore, the capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality. DeFunis v. Odegaard, 416 U.S. 312, 319 (1974). As we have indicated, Lyons has not made this demonstration.

The record and findings made on remand do not improve Lyons' position with respect to standing. The District Court, having been reversed, did not expressly address Lyons' standing to seek injunctive relief, although the City was careful to preserve its position on this question. There was no finding that Lyons faced a real and immediate threat of again being illegally choked. The City's policy was described as authorizing the use of the strangleholds "under circumstances where no one is threatened with death or grievous bodily harm." That policy was not further described, but the record before the court contained the department's existing policy with respect to the employment of chokeholds. Nothing in that policy, contained in a Police Department manual, suggests that the chokeholds, or other kinds of force for that matter, are authorized absent some resistance or other provocation by the arrestee or other suspect. On the contrary, police officers were instructed to use chokeholds only when lesser degrees of force do not suffice and then only "to gain control of a suspect who is violently resisting the officer or trying to escape." App. 230.

Our conclusion is that the Court of Appeals failed to heed O'Shea, Rizzo, and other relevant authority, and that the District Court was quite right in dismissing Count V.

V

Lyons fares no better if it be assumed that his pending damages suit affords him Art. III standing to seek an injunction as a remedy for the claim arising out of the October 1976 events. The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again -- a "likelihood of substantial and immediate irreparable injury." O'Shea v. Littleton, 414 U.S., at 502. The speculative nature of Lyons' claim of future injury requires a finding that this prerequisite of equitable relief has not been fulfilled.

Nor will the injury that Lyons allegedly suffered in 1976 go unrecompensed; for that injury, he has an adequate remedy at law. Contrary to the view of the Court of Appeals, it is not at all "difficult" under our holding "to see how anyone can ever challenge police or similar administrative practices." 615 F.2d, at 1250. The legality of the violence to which Lyons claims he was once subjected is at issue in his suit for damages and can be determined there.

Absent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional.

We decline the invitation to slight the preconditions for equitable relief; for as we have held, recognition of the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the States' criminal laws in the absence of irreparable injury which is both great and immediate.

As we noted in O'Shea, 414 U.S., at 503, withholding injunctive relief does not mean that the "federal law will exercise no deterrent effect in these circumstances." If Lyons has suffered an injury barred by the Federal Constitution, he has a remedy for damages under § 1983. Furthermore, those who deliberately deprive a citizen of his constitutional rights risk conviction under the federal criminal laws. Ibid.

Beyond these considerations the state courts need not impose the same standing or remedial requirements that govern federal-court proceedings. The individual States may permit their courts to use injunctions to oversee the conduct of law enforcement authorities on a continuing basis. But this is not the role of a federal court, absent far more justification than Lyons has proffered in this case.

Respondent Adolph Lyons is a 24-year-old Negro male who resides in Los Angeles. According to the uncontradicted evidence in the record, at about 2 a. m. on October 6, 1976, Lyons was pulled over to the curb by two officers of the Los Angeles Police Department (LAPD) for a traffic infraction because one of his taillights was burned out. The officers greeted him with drawn revolvers as he exited from his car. Lyons was told to face his car and spread his legs. He did so. He was then ordered to clasp his hands and put them on top of his head. He again complied. After one of the officers completed a patdown search, Lyons dropped his hands, but was ordered to place them back above his head, and one of the officers grabbed Lyons' hands and slammed them onto his head. Lyons complained about the pain caused by the ring of keys he was holding in his hand. Within 5 to 10 seconds, the officer began to choke Lyons by applying a forearm against his throat. As Lyons struggled for air, the officer handcuffed him, but continued to apply the chokehold until he blacked out. When Lyons regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt. He had urinated and defecated. He was issued a traffic citation and released.

Since Lyons' claim for damages plainly gives him standing, and since the success of that claim depends upon a demonstration that the city's chokehold policy is unconstitutional, it is beyond dispute that Lyons has properly invoked the District Court's authority to adjudicate the constitutionality of the city's chokehold policy. The dispute concerning the constitutionality of that policy plainly presents a "case or controversy" under Art. III. The Court nevertheless holds that a federal court has no power under Art. III to adjudicate Lyons' request, in the same lawsuit, for injunctive relief with respect to that very policy. This anomalous result is not supported either by precedent or by the fundamental concern underlying the standing requirement. Moreover, by fragmenting a single claim into multiple claims for particular types of relief and requiring a separate showing of standing for each form of relief, the decision today departs from this Court's traditional conception of standing and of the remedial powers of the federal courts.

A

It is simply disingenuous for the Court to assert that its decision requires "[no] extension" of O'Shea v. Littleton, 414 U.S. 488 (1974), and Rizzo v. Goode, 423 U.S. 362 (1976). Ante, at 105. In contrast to this case O'Shea and Rizzo involved disputes focusing solely on the threat of future injury which the plaintiffs in those cases alleged they faced. In O'Shea the plaintiffs did not allege past injury and did not seek compensatory relief. In Rizzo, the plaintiffs sought only declaratory and injunctive relief and alleged past instances of police misconduct only in an attempt to establish the substantiality of the threat of future injury. There was similarly no claim for damages based on past injuries in Ashcroft v. Mattis, 431 U.S. 171 (1977), or Golden v. Zwickler, 394 U.S. 103 (1969), on which the Court also relies.

These decisions do not support the Court's holding today. As the Court recognized in O'Shea, standing under Art. III is established by an allegation of "'threatened or actual injury.'" 414 U.S., at 493, quoting Linda R. S. v. Richard D., 410 U.S. 614, 617 (1973) (emphasis added). See also 414 U.S., at 493, n. 2. Because the plaintiffs in O'Shea, Rizzo, Mattis, and Zwickler did not seek to redress past injury, their standing to sue depended entirely on the risk of future injury they faced. Apart from the desire to eliminate the possibility of future injury, the plaintiffs in those cases had no other personal stake in the outcome of the controversies.

By contrast, Lyons' request for prospective relief is coupled with his claim for damages based on past injury. In addition to the risk that he will be subjected to a chokehold in the future, Lyons has suffered past injury. Because he has a live claim for damages, he need not rely solely on the threat of future injury to establish his personal stake in the outcome of the controversy. In the cases relied on by the majority, the Court simply had no occasion to decide whether a plaintiff who has standing to litigate a dispute must clear a separate standing hurdle with respect to each form of relief sought.¹⁷

B

The Court's decision likewise finds no support in the fundamental policy underlying the Art. III standing requirement -- the concern that a federal court not decide a legal issue if the plaintiff lacks a sufficient "personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions." Baker v. Carr, 369 U.S., at 204. As this Court stated in Flast v. Cohen, 392 U.S. 83, 101 (1968), "the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." See also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982) (standing requirement ensures that "the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action").

Because Lyons has a claim for damages against the city, and because he cannot prevail on that claim unless he demonstrates that the city's chokehold policy violates the Constitution, his personal stake in the outcome of the controversy adequately assures an adversary presentation of his challenge to the constitutionality of the policy. Moreover, the resolution of this challenge will be largely dispositive of his requests for declaratory and injunctive relief. No doubt the requests for injunctive relief may raise additional questions. But these questions involve familiar issues relating to the appropriateness of particular forms of relief, and have never been thought to implicate a litigant's standing to sue. The denial of standing separately to seek injunctive relief therefore cannot be justified by the basic concern underlying the Art. III standing requirement.

C

By fragmenting the standing inquiry and imposing a separate standing hurdle with respect to each form of relief sought, the decision today departs significantly from this Court's traditional conception of the standing requirement and of the remedial powers of the federal courts. We have never required more than that a plaintiff have standing to litigate a claim. Whether he will be entitled to obtain particular forms of relief should he prevail has never been understood to be an issue of standing. In determining whether a plaintiff has standing, we have always focused on his personal stake in the outcome of the controversy, not on the issues sought to be litigated, Flast v. Cohen, supra, at 99, or the "precise nature of the relief sought." Jenkins v. McKeithen, 395 U.S., at 423 (opinion of Marshall, J., joined by Warren, C. J., and Brennan, J.).

The Court's fragmentation of the standing inquiry is also inconsistent with the way the federal courts have treated remedial issues since the merger of law and equity. The federal practice has been to reserve consideration of the appropriate relief until after a determination of the merits, not to foreclose certain forms of relief by a ruling on the pleadings. The prayer for relief is no part of the plaintiff's cause of action. See 2A J. Moore & J. Lucas, Moore's Federal Practice para. 8.18, p. 8-216, and n. 13 (1983) (Moore), and cases cited therein; C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2664 (1983) (Wright, Miller, & Kane). Rather, "[the usual rule is] that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Bell v. Hood, 327 U.S. 678, 684 (1946) (footnote omitted).

IV

Apart from the question of standing, the only remaining question presented in the petition for certiorari is whether the preliminary injunction issued by the District Court must be set aside because it "[constitutes] a substantial interference in the operation of a municipal police department." Pet. for Cert. I. In my view it does not.

The principles of federalism simply do not preclude the limited preliminary injunction issued in this case. Unlike the permanent injunction at issue in Rizzo, the preliminary injunction involved here entails no federal supervision of the LAPD's activities. The preliminary injunction merely forbids the use of chokeholds absent the threat of deadly force, permitting their continued use where such a threat does exist. This limited ban takes the form of a preventive injunction, which has traditionally been regarded as the least intrusive form of equitable relief. Moreover, the city can remove the ban by obtaining approval of a training plan. Although the preliminary injunction also requires the city to provide records of the uses of chokeholds to respondent and to allow the court access to such records, this requirement is hardly onerous, since the LAPD already maintains records concerning the use of chokeholds.

Even if the issue had been properly raised, I could not agree with the Court's disposition of it. With the single exception of Rizzo v. Goode, supra, all of the cases relied on by the Court concerned injunctions against state criminal proceedings. The rule of Younger v. Harris, 401 U.S. 37 (1971), that such injunctions can be issued only in extraordinary circumstances in which the threat of injury is "great and immediate," id., at 46, reflects the venerable rule that equity will not enjoin a criminal prosecution, the fact that constitutional defenses can be raised in such a state prosecution, and an appreciation of the friction that injunctions against state judicial proceedings may produce. See ibid.; Steffel v. Thompson, 415 U.S. 452, 462 (1974); 28 U. S. C. § 2283.

Our prior decisions have repeatedly emphasized that where an injunction is not directed against a state criminal or quasi-criminal proceeding, "the relevant principles of equity, comity, and federalism" that underlie the Younger doctrine "have little force."

If the preliminary injunction granted by the District Court is analyzed under general equitable principles, rather than the more stringent standards of Younger v. Harris, it becomes apparent that there is no rule of law that precludes equitable relief and requires that the preliminary injunction be set aside. "In reviewing such interlocutory relief, this Court may only consider whether issuance of the injunction constituted an abuse of discretion." Brown v. Chote, 411 U.S. 452, 457 (1973).

The District Court concluded, on the basis of the facts before it, that Lyons was choked without provocation pursuant to an unconstitutional city policy. Supra, at 119. Given the necessarily preliminary nature of its inquiry, there was no way for the District Court to know the precise contours of the city's policy or to ascertain the risk that Lyons, who had alleged that the policy was being applied in a discriminatory manner, might again be subjected to a chokehold. But in view of the Court's conclusion that the unprovoked choking of Lyons was pursuant to a city policy, Lyons has satisfied "the usual basis for injunctive relief, 'that there exists some cognizable danger of recurrent violation.'" Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 59 (1975), quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953). The risk of serious injuries and deaths to other citizens also supported the decision to grant a preliminary injunction. Courts of equity have much greater latitude in granting injunctive relief "in furtherance of the public interest than . . . when only private interests are involved." Virginian R. Co. v. Railway Employees, 300 U.S. 515, 552 (1937). See Wright, Miller, & Kane § 2948; 7 Moore para. 65.04[1]. In this case we know that the District Court would have been amply justified in considering the risk to the public, for after the preliminary injunction was stayed, five additional deaths occurred prior to the adoption of a moratorium. See n. 3, supra. Under these circumstances, I do not believe that the District Court abused its discretion.

Indeed, this Court has approved of a decision that directed issuance of a permanent injunction in a similar situation. See Lankford v. Gelston, 364 F.2d 197 (CA4 1966), cited with approval in Allee v. Medrano, 416 U.S. 802, 816, n. 9 (1974). See n. 15, supra. In Lankford, citizens whose houses had been searched solely on the basis of uncorroborated, anonymous tips sought injunctive relief. The Fourth Circuit, sitting en banc, held that the plaintiffs were entitled to an injunction against enforcement of the police department policy authorizing such searches, even though there was no evidence that their homes would be searched in the future. Lyons is no less entitled to seek injunctive relief. To hold otherwise is to vitiate "one of the most valuable features of equity jurisdiction, to anticipate and prevent a threatened injury, where the damages would be insufficient or irreparable." Vicksburg Waterworks Co. v. Vicksburg, 185 U.S. 65, 82 (1902).

Here it is unnecessary to consider the propriety of a permanent injunction. The District Court has simply sought to protect Lyons and other citizens of Los Angeles pending a disposition of the merits. It will be time enough to consider the propriety of a permanent injunction when and if the District Court grants such relief.

VI

The Court's decision removes an entire class of constitutional violations from the equitable powers of a federal court. It immunizes from prospective equitable relief any policy that authorizes persistent deprivations of constitutional rights as long as no individual can establish with substantial certainty that he will be injured, or injured again, in the future. The Chief Justice asked in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 419 (1971) (dissenting opinion), "what would be the judicial response to a police order authorizing 'shoot to kill' with respect to every fugitive"? His answer was that it would be "easy to predict our collective wrath and outrage." Ibid. We now learn that wrath and outrage cannot be translated into an order to cease the unconstitutional practice, but only an award of damages to those who are victimized by the practice and live to sue and to the survivors of those who are not so fortunate. Under the view expressed by the majority today, if the police adopt a policy of "shoot to kill," or a policy of shooting 1 out of 10 suspects, the federal courts will be powerless to enjoin its continuation. Cf. Linda R. S. v. Richard D., 410 U.S., at 621 (White, J., dissenting). The federal judicial power is now limited to levying a toll for such a systematic constitutional violation.

City of Los Angeles v. Lyons

City of Los Angeles v. Lyons

Notes on City of Los Angeles v. Lyons

1. A study of neck compression holds published in the July 1983 FBI Law Enforcement Bulletin yielded the following conclusions:

   Because of the organs involved, neck holds must be considered potentially lethal whenever applied. Officers using this hold should have proper training in its use and effects. Police officers should have continual inservice training and practice in the use of the carotid sleeper. They should not use or be instructed in the use of the choke hold other than to demonstrate its potential lethal effect. Officers should recognize that death can result if the carotid sleeper is incorrectly applied, and there may also be instances where sudden and unexpected deaths occur when the carotid sleeper is properly used.

   Donald T. Reay, M.D. and Richard L. Mathers, Physiological Effects Resulting From Use of Neck Holds, FBI Law Enforcement Bulletin (July 1983) at 15.

2. How did the Court apply the general standards for injunctive relief to Lyons' constitutional claim?

3. Did Lyons satisfy the requisites to an Article III case or controversy set forth in Rizzo v. Goode? Are there any circumstances under which a plaintiff may have standing to enjoin future police misconduct?
   1. In Kolender v. Lawson, 461 U.S. 352 (1983), Edward Lawson brought a civil action seeking a mandatory injunction to restrain enforcement of the California statute that made it a misdemeanor for one "[w]ho loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when request by any police officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification." California Penal Code Ann. § 647(e) (West 1970). Finding the statute unconstitutionally vague on its face, the Supreme Court upheld the lower courts' injunction against enforcement of the act. In a footnote, the Court addressed Lawson's standing to seek an injunction:

      The appellants have apparently never challenged the propriety of declaratory and injunctive relief in this case. Nor have appellants ever challenged Lawson's standing to seek such relief. We note that Lawson has been stopped on approximately 15 occasions pursuant to § 647(e), and that these 15 stops occurred in a period of less than two years. Thus, there is a "credible threat" that Lawson might be detained again under § 647(e).

      Kolender, 461 U.S. at 355 n.3 (citations omitted). See also Wooley v. Maynard, 430 U.S. 705, 712 (1977) (three successive criminal prosecutions in five weeks for covering up the state motto "Live Free or Die" on license plates established credible threat of future prosecutions sufficient to justify equitable relief for invasion of First Amendment right to refrain from speaking).

   2. In Nava v. City of Dublin, 121 F. 3d 453 (9th Cir. 1997), California Highway Patrol (CHP) Officer Williams had stopped Randolph Bennett for illegally walking on the shoulder of a state highway. When Bennett resisted attempts to remove him from the shoulder, CHP Officer Whitty arrived at the scene and applied a carotid hold, causing Bennett to lose consciousness and die. Nava, Bennett's son, sued the CHP, its Commissioner and CHP Officers Williams and Whitty seeking both damages and an injunction.

      The jury found that Officer Whitty, acting pursuant to the policy promulgated by the CHP Commissioner, had deprived Bennett of his constitutional rights by use of excessive force and awarded $470,000 in compensatory and punitive damages. The district court, concluding that the carotid hold is deadly force and that CHP policy authorized use of the hold when deadly force is not justified, issued a permanent injunction banning the CHP from authorizing its officers to apply the carotid hold unless application of the chokehold is necessary to prevent death or serious bodily harm to an officer or third party.

      The court of appeals concluded that Nava did have standing to seek injunctive relief. Although Nava could not establish that he was likely to suffer future injury from the CHP's administration of a chokehold, the Ninth Circuit had created an exception to this requirement where a plaintiff has standing to bring an action for damages and the claim for injunctive relief "involve[s] the same operative facts and legal theory." Smith v. City of Fontana, 818 F. 2d 1411, 1423 (9th Cir. 1987). However, the court further held that because Nava was no more likely to be subjected to deadly force than any other citizen of California, he could not establish the likelihood of substantial and immediate irreparable injury required to procure equitable relief.

   3. In Hodgers-Durgin v. De La Vina, 199 F. 3d 1037, 1040 n.1 (9th Cir. 1999), two innocent motorists who had been stopped by roving agents of the United States Border Patrol sought injunctive relief to restrain such stops as violative of the Fourth Amendment. The Court of Appeals for the Ninth Circuit overruled Nava and other prior cases that had held that standing to seek damages created standing to seek equitable relief, deeming these decisions inconsistent with Lyons. Id. at 1040 n.1. However, the court reasoned that plaintiffs had satisfied the case or controversy requirement of Article III:

      This case is notably different from Lyons in that plaintiffs did nothing illegal to prompt the stops by the border patrol. . . . Unlike in Lyons, in this case it is uncontested that both plaintiffs engaged in entirely innocent conduct, and there is no tenable argument that plaintiffs should avoid driving near the Mexican border in order to avoid another stop by the Border Police. Further, unlike in Lyons, in this case there is no string of contingencies necessary to produce an injury. In Lyons, further injury would have required another stop by the police, followed by post-stop behavior culminating in a chokehold. In this case, another stop of the sort alleged by plaintiffs would itself constitute further injury.

      Hodgers-Durgin, 199 F. 3d at 1041-42. While accepting that plaintiffs had standing under Article III, the court held that because each plaintiff had been stopped only once in ten years, they "have not demonstrated sufficient likelihood of injury to warrant equitable relief." Id. at 1044. The court noted that other persons not named as plaintiffs–one who was stopped by Border Patrol agents at least four times between 1992 and 1995 and another who had been stopped "on more occasions than he could remember"–might be able to establish the probability of harm essential to obtain equitable relief. Id. at 1045. See also Thomas v. County of Los Angeles, 978 F. 2d 504, 508 (9th Cir. 1993) (Article III standing is present where "numerous instances of police misconduct have occurred in a small six by seven block area, some minority residents of the area have been mistreated by deputies more than once, and many victims purportedly did nothing to warrant detention or apprehension prior to the mistreatment.").

      Finally, the court of appeals held that the inability of the named plaintiffs to prove a likelihood of future injury made the claim for declaratory relief unripe:

      Ripeness doctrine protects against premature adjudication of suits in which declaratory relief is sought. [citation omitted] In suits seeking both declaratory and injunctive relief against a defendant's continuing practices, the ripeness doctrine serves the same function in limiting declaratory relief as the imminent-harm requirement serves in limiting injunctive relief. . . . As the Supreme Court recently wrote, translating the language of injunctions and imminency into the language of declaratory judgments and ripeness, "A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Texas v. United States, 523 U.S. 296, 118 S. Ct. 1257, 1259, 140 L. Ed. 2d 406 (1988) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581, 105 S. Ct. 3325, 87 L. Ed. 2d 409 (1985) (internal quotations omitted)). Whether the named plaintiffs are likely to be stopped again by the Border Patrol is simply too speculative to warrant an equitable judicial remedy, including declaratory relief, that would require, or provide a basis for requiring, that the Border Patrol change its practices.

      Hodgers-Durgin, 199 F. 3d at 1044.

   4. In Curtis v. City of New Haven, 726 F. 2d 65 (2d Cir. 1984), the court of appeals held that two citizens, who had obtained damage verdicts against the City arising out of the use of mace, did not have standing to obtain an injunction limiting the use of mace to circumstances approved in the International Association of Chiefs of Police guidelines:

      Tacitly conceding the overwhelming impact of Lyons on the issue of standing, plaintiffs . . . claim that the purpose of injunctive relief here is to protect them not as prospective arrestees but as inhabitants of a community in which a hazardous substance is being randomly applied to innocent and uninvolved civilians. Plaintiffs contend that when mace is sprayed, it affects not only the target but also innocent third parties in the area and the police themselves. . . .

      The argument is ingenious, but we do not believe that the impact of Lyons can so easily be avoided. While a chokehold and mace obviously have different effects, Lyons is not fairly distinguishable from this case. Plaintiffs concede that, under their theory, any resident of New Haven could bring suit to enjoin the police department's use of mace. This would appear to be true whether or not the resident had actually been injured or was likely to be injured in the future. Lyons, however, dispels the notion that any resident can seek an injunction to prohibit police activity. [citation omitted] Even under plaintiff's theory, they would have the burden of showing that they, as distinguished from the general citizenry of New Haven, are likely to suffer injury from mace in the future as opposed to having a "mere interest" in the claim.

      Curtis, 726 F. 2d at 68-69.

   5. In Washington v. Vogel, 156 F.R.D. 676 (M.D. Fla. 1994), the Florida State Conference of the NAACP Branches filed a Section 1983 action to enjoin the policy of targeting African-Americans and Hispanics for pretextual traffic stops on Interstate 95 in Volusia County, Florida, allegedly for the purpose of seizing cash from persons stopped. The trial court recognized that because individual motorists would be unable to prove a threat of future injury, unless the NAACP had standing to seek an injunction on behalf of its members, "this Court is powerless on the present record to enter an injunction against the alleged police practices at issue." Id. at 681. Nonetheless, the court held that the NAACP lacked standing to assert a claim for injunctive relief on behalf of its membership because it was not proven that any particular member faced a real and immediate threat of again being subjected to a pretextual stop.

4. In County of Riverside v. McClaughlin, 500 U.S. 44 (1990), four persons detained in the Riverside County Jail sought injunctive relief requiring the county to provide prompt probable cause hearings to persons arrested without a warrant. The trial court certified a class composed of all present and future prisoners at the jail and all future detainees who have been or may be denied prompt probable cause hearings. The County appealed from the district court's issuance of a preliminary injunction that ordered a judicial determination of probable cause within 36 hours of any warrantless arrest. The County argued that the named plaintiffs lacked standing because it was too late for them to receive a prompt hearing and they could not establish that they would suffer a future violation of the Constitution by being denied a prompt probable cause hearing following a warrantless arrest. The Court rejected the County's contention:

   Plaintiffs alleged in their complaint that they were suffering a direct and current injury as a result of this detention, and would continue to suffer that injury until they received the probable cause determination to which they were entitled. Plainly, plaintiffs' injury was at that moment capable of being redressed through injunctive relief. . . . This case is easily distinguished from Lyons, in which the constitutionally objectionable practice ceased altogether before the plaintiff filed his complaint. It is true, of course, that the claims of the named plaintiffs have been rendered moot; eventually, they either received probable cause hearings or were released. Our cases leave no doubt, however, that by obtaining class certification, plaintiffs preserved the merits of the controversy for our review. In factually similar cases we have held that "the termination of a class representative's claim does not moot the claims of the unnamed members of the class." [citation omitted] That the class was not certified until after the named plaintiff's claims had become moot does not deprive us of jurisdiction. We recognized in Gerstein that "[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires." [citation omitted] In such cases, the "relation back" doctrine is properly invoked to preserve the merits of the case for judicial resolution.

   County of Riverside, 500 U.S. at 51-52. May victims of government misconduct always establish Article III standing by filing their claim as a class action? See Sosna v. Iowa, 419 U.S. 393, 402-03 (1975) ("[T]he judicial power of Art. III courts extends only to ‘cases and controversies' specified in that Article. There must . . . be a named plaintiff who has such a case or controversy at the time the complaint is filed. . . . "); Warth v. Seldin, 422 U.S. 490, 502 (1975) ("Unless these petitioners can thus demonstrate the requisite case or controversy between themselves personally and respondents, ‘none may seek relief on behalf of himself or any other members of the class.'", citing O'Shea v. Littleton, 414 U.S. 488, 494 (1974)); Cf. Lewis v. Casey, 518 U.S. 343, 349 (1996) (Proof of two instances of deprivation of prisoners' constitutional right of access to court insufficient to sustain systemwide injunction in class action on behalf of all adult prisoners incarcerated in State of Arizona Department of Corrections. "It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of political branches, to shape the institutions of government in such a fashion as to comply with the laws and Constitution.").

5. Is equitable relief available whenever the plaintiff proves that the constitutional harm was inflicted pursuant to a governmental policy? Compare Deshawn E. by Charlotte E. v. Safir, 156 F. 3d 340, 344-45 (2nd Cir. 1998) ("[T]his case is distinguishable from Lyons because, in Lyons, there was no proof of a pattern of illegality as the police had discretion to decide if they were going to apply a choke hold and there was no formal policy which sanctioned the application of the choke hold. In contrast, the challenged interrogation methods in this case are officially endorsed policies; there is a likelihood of recurrence because the Squad's activities are authorized by a written memorandum of understanding between the Corporation Counsel and the Police Commissioner.") with Nava v. City of Dublin, 121 F. 3d 453, 459 (9th Cir. 1997) ([T]he district court assigns unwarranted legal significance to the existence of departmental policy. The Supreme Court recognized in Lyons that even if the LAPD maintained a clearly unconstitutional blanket policy of authorizing its officers to apply a chokehold to any citizen with whom they have an encounter, Lyons would also have to allege that he would have another encounter with police in order to establish a real and immediate threat of future injury.") and Robinson v. City of Chicago, 868 F. 2d 959, 966 (7th Cir. 1989) ("Richardson does allege that the City had a written policy authorizing officers to detain persons for investigation . . . . Yet, as with the Lyons plaintiffs . . . Richardson . . can[not] allege that it is reasonably likely that [he] will again encounter the police.").

6. What alternative did the Court suggest for restraining the unconstitutional use of chokeholds?

7. The availability of injunctive relief also may be limited by federal statute.
   1. In the Prison Litigation Reform Act (PLRA), Congress provided that in any civil action relating to prison conditions:

      The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.

      18 U.S.C. § 3626(a)(1)(A). The PLRA similarly constrains the issuance of preliminary injunctive relief, 18 U.S.C. § 3626(a)(2); limits the courts' power to order release of prisoners, 18 U.S.C. § 3626(a)(3); and provides for the termination of prospective relief. 18 U.S.C. § 3626(b). See also Farmer v. Brennan, 511 U.S. 825, 847 (1994) ("When a prison inmate seeks injunctive relief, a court need not ignore the inmate's failure to take advantage of adequate prison procedures, and an inmate who needlessly bypasses such procedures may properly be compelled to pursue them.").

   2. The Tax Anti-Injunction Act, 28 U.S.C. § 1341 provides:

      The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. The Supreme Court has held that principles of comity likewise bar federal courts from rendering declaratory judgments as well as damages in actions challenging the constitutionality of state tax laws where plain, adequate and complete remedies lie under state law. Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 100 (1981); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943).

8. Given that the Chief of Police had issued a blanket prohibition against the use of the bar-arm chokehold, why did the City argue that the claim for injunctive relief was not moot? Why did the Court find that the Chief of Police's order did not moot the claim for injunctive relief?

   In Friends of Earth v. Laidlaw Environmental Servs., 528 U.S. 167, 188-90 (2000), the Court held that a citizen group's action for civil penalties payable to the government under the Clean Water Act was not rendered moot by a wastewater treatment plant owner's post-suit compliance with permit requirements:

   It is well settled that "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." [citation omitted] "[I]f it did, the courts would be compelled to leave ‘[t]he defendant . . . free to return to his old ways.'" [citation omitted] In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant's voluntary conduct is stringent: "A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." [citation omitted] The "heavy burden of persua[ding]" the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. . . . By contrast . . . it is the plaintiff's burden to establish standing by demonstrating that, if unchecked by the litigation, the defendant's allegedly wrongful behavior will likely occur or continue . . . .

C. Introduction to Attorney's Fees

1. In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), the Court held that absent express congressional authorization, the equitable power of courts did not encompass awarding attorney's fees to litigants who successfully represent the public interest. Congress responded by passage of the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, which provides in pertinent part:

   In any action or proceeding to enforce a provision of section . . . 1983 . . . of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. . . .

   A plaintiff who prevails "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." S. Rep. No. 94-1011, p.4 (1986) (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968)). On the other hand, the courts are to award fees to a prevailing defendant only "upon a finding that the plaintiff's action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v Equal Opportunity Employment Commission, 434 U.S. 412, 421 (1978); H. R. Rep. No. 94-1558, p.7 (1976). For an analysis of the limited circumstances under which fees have been denied to plaintiffs or awarded to defendants, see Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation, Section 10:3 (Fourth Edition).

2. While fee awards may not be entered against persons protected by absolute legislative immunity–which bars actions for legal as well as equitable relief--fees may be assessed when prospective equitable relief is entered against state and local officials acting in a prosecutorial capacity. Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719 (1981). In Pulliam v. Allen, 466 U.S. 522 (1984), the Court held that judges who were found liable for declaratory and injunctive relief are not immunized from attorney's fees. However, Congress responded by amending Section 1988 to provide, "in any action brought against a judicial official for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction." 42 U.S.C. § 1988.

   The Eleventh Amendment does not bar an award of fees when prospective relief is ordered against a state governmental entity via an action against a state official in her official capacity. Hutto v. Finney 437 U.S. 678 (1978). On the other hand, the state is not responsible for fees following a successful Section 1983 action against the officer in her personal capacity. Kentucky v. Graham, 473 U.S. 159, 168 (1985) ("Section 1988 does not guarantee that lawyers will recover fees anytime their clients sue a government official in his personal capacity, with the governmental entity as ultimate insurer. Instead, fee liability runs with merits liability; if federal law does not make the government substantively liable on a respondeat superior basis, the government similarly is not liable for fees on that basis under § 1988.").

3. In Texas Teachers Assn. v. Garland School Dist., 489 U.S. 782 (1988), the Court set forth the general standard defining when a party would be deemed to be "prevailing" for purposes of Section 1988. Rejecting the court of appeals' formulation that plaintiff must succeed on the "central issue" in the litigation to be eligible for an award of attorney's fees, the Court prescribed the following test:

   We think the language of Nadeau v. Helgemoe, quoted in our opinion in Hensley, adequately captures the inquiry which should be made in determining whether a civil rights plaintiff is a prevailing party within the meaning of § 1988. If the plaintiff has succeeded on "any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit," the plaintiff has crossed the threshold to a fee award of some kind. . . . The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.

   Texas Teachers Assn., 489 U.S. at 791-92.
   1. A party may recover fees where relief has been obtained through settlement or a consent decree, even absent a formal judicial declaration that a government official violated plaintiff's federally guaranteed rights. Maher v. Gagne, 448 U.S. 122, 129 (1980). On the other hand, the party seeking fees must obtain some relief on the merits of a claim to recover fees. No fees may be awarded where the plaintiff merely secures appellate reversal of directed verdicts entered in favor of the defense and the case is remanded for a new trial. Hanrahan v. Hampton, 446 U.S. 754 (1980) (per curiam). In addition, plaintiff is not a prevailing party where the court finds that a prisoner has suffered a deprivation of constitutional rights but a) exonerates defendants from liability for damages because of qualified immunity, and b) declines to order injunctive and declaratory relief because the plaintiff's release from prison rendered the claim for equitable relief moot. Hewitt v. Helms, 482 U.S. 755 (1987).See also Rhodes v. Stewart, 488 U.S. 1, 3 (1988) (per curiam) (Modification of prison policies effected by declaratory judgment "could not in any way have benefitted either plaintiff, one of whom was dead and the other released.").

   2. In Farrar v. Hobby, 506 U.S. 103 (1992), plaintiff sued under Section 1983 for $17 million dollars in money damages. The jury found that defendant Hobby had deprived Farrar of a constitutional right but that Hobby's conduct was not a proximate cause of any damages. After the district court entered a judgement against Hobby for nominal damages, it awarded him $280,000 in attorney's fees. The court of appeals reversed the fee award, holding that Farrar was not a prevailing party under Section 1988.

      The Supreme Court held that Farrar satisfied the prevailing party" requirement of Section 1988:

      [T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some of the relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought . . . or comparable relief through a consent decree or settlement. . . . Only under these circumstances can civil rights litigation effect "the material alteration of the legal relationship of the parties" and thereby transform the plaintiff into a prevailing party.

      * * * * *

      We ... hold that a plaintiff who wins nominal damages is a prevailing party under § 1988. . . . A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay.

      Farrar, 506 U.S. at 111-13.

      The Court's analysis in Farrar generated a split in the circuits over the viability of the "catalyst test," which granted prevailing party status to plaintiffs "if its "‘ends are accomplished as the result of the litigation even without formal judicial recognition,'" there is a "‘causal connection'" between the plaintiff's lawsuit and the defendant's actions providing relief to the plaintiff, and the defendant's actions were "‘required by law.'" Morris v. City of West Palm Beach, 194 F. 3d 1203 (11th Cir. 1999). Compare S-1 & S-2 v. State Board of Education, 21 F. 3d 49 (4th Cir, 1994) (en banc) (Farrar precludes catalyst theory) with Morris, 21 F. 3d at 1206-07 and cases cited at 1206n.5 (Farrar does not bar the catalyst test).

4. The Supreme Court set forth the general approach to calculation of the fee award in Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983):

   The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where documentation of hours is inadequate, the district court may reduce the award accordingly.

   The district court also should exclude from this initial fee calculation hours that were not "reasonably expended.". . . Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. The reasonable hourly rate is to be determined by prevailing market rates in the community and is not to be reduced when plaintiff was represented by a non-profit legal services organization. Blum v. Stenson, 465 U.S. 886, 892-96 (1984). Nor does a contingent fee agreement cap the fees recoverable under Section 1988.

   Blanchard v. Bergeron, 489 U.S. 87 (1989).

   The Hensley Court also described how the fee award should be assessed where the plaintiff prevails on some but not all of the claims:

   In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants . . . counsel's work on one claim will be unrelated to his work on another claim. . . . The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.

   It may well be that cases involving such unrelated claims are unlikely to arise with great frequency. Many civil rights cases will present only a single claim. In other cases the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.

   Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation . . . . In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. . . .

   If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. . . . [T]he most critical factor is the degree of success obtained.

   There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.

   Hensley, 461 U.S. at 434-36.

5. In City of Riverside v. Rivera, 477 U.S. 561 (1986), plaintiffs recovered $13,300 in damages for constitutional violations after city police officers, acting without a warrant or sufficient cause, broke up a party using tear gas and excessive physical force. The defendants appealed from the lower courts' award of attorney's fees totaling $245,456.25. The Supreme Court affirmed the fee award, rejecting defendants' argument that attorney's fees must be proportionate to the amount of damages recovered:

   As an initial matter, we reject the notion that a civil action for damages constitutes nothing more than a private tort suit benefitting only the individual plaintiffs whose rights were violated. Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms. See Carey v. Piphus, 435 U.S. 247, 266 (1978). . . . Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damage awards.

   * * * * *

   A rule that limits attorney's fees in civil rights cases to a proportion of the damages awarded would seriously undermine Congress' purpose in enacting § 1988. Congress enacted § 1988 specifically because it found that the private market for legal services failed to provide many victims of civil rights violations with effective access to the judicial process. . . . These victims ordinarily cannot afford to purchase legal services at the rate set by the private market. . . . Moreover, the contingent fee arrangements that make legal services available to many victims of personal injuries would often not encourage lawyers to accept civil rights cases, which frequently involve substantial expenditures of time and effort but produce only small monetary recoveries.

   * * * * *

   A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts. This is totally inconsistent with Congress' purpose in enacting § 1988. Congress recognized that private-sector fee arrangements were inadequate to ensure sufficiently vigorous enforcement of civil rights. In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonable expended on a case.

   City of Riverside, 477 U.S. at 574-78.

6. While holding that a plaintiff who recovers nominal damages is a prevailing party under Section 1988, the Court, in a 5-4 opinion in Farrar v. Hobby, 506 U.S. 103 (1992), affirmed the denial of attorney's fees on a separate ground:

   Athough the "technical" nature of a nominal damages award . . . does not affect the prevailing party inquiry, it does bear on the propriety of fees awarded under § 1988. Once the civil rights litigation materially alters the legal relationship between the parties, "the degree of the plaintiff's overall success goes to the reasonableness" of a fee award . . . . "Where recovery of private damages is the purpose of . . . civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought."

   * * * * *

   In some circumstances, even a plaintiff who formally "prevails" under § 1988 should receive no attorney's fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing party. . . . When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief . . . the only reasonable fee is usually no fee at all.

   Farrar, 506 U.S. at 114-15.

   Justice O'Connor, one of the five votes supporting the majority, wrote a concurring opinion in which she endorsed the following approach:

   In the context of this litigation, the technical or de minimis nature of Joseph Farrar's victory is readily apparent: He asked for a bundle and got a pittance. . . . That is not to say that all nominal damage awards are de minimis. Nominal relief does not necessarily a nominal victory make. . . . But . . . a substantial difference between the judgment recovered and the recovery sought suggests that the victory is in fact purely technical.

   * * * * *

   The difference between the amount recovered and the damages sought is not the only consideration. . . . [T]he courts also must look to other factors. One is the significance of the legal issue on which the plaintiff claims to have prevailed. . . . Respondent was just one of six defendants and the only one not found to have engaged in a conspiracy. If recovering one dollar from the least culpable defendant and nothing from the rest legitimately can be labeled a victory–and I doubt that it can–surely it is a hollow one. . . .

   Given that Joseph Farrar got some of what he wanted . . . his success might be considered material if it accomplished some public goal . . . . Section 1988 . . . is a tool that ensures the vindication of important rights, even when large sums of money are not at stake, by making attorney's fees available under a private attorney general theory. Yet one searches these facts in vain for the public purpose this litigation might have served.

   Farrar, 506 U.S. at 120-22 (O'Connor , J. concurring). Does Farrar bar an award of attorney's fees in every Section 1983 case where plaintiff recovers only nominal damages? See Brandau v. State of Kansas, 168 F. 3d 1179, 1181-83 (10th Cir. 1999); LeBlanc-Sternberg v. Fletcher, 143 F. 3d 748, 758-63 (2d Cir. 1998). What strategies may plaintiff's counsel adopt to maximize the chances of recovering attorney's fees if the jury awards nominal damages?

7. In the Prison Litigation Reform Act of 1995, Congress significantly limited the fees that may be awarded to attorneys who file Section 1983 actions on behalf of prisoners. 42 U.S.C. §1997e(d). INSERT POP-UP OF TEXT OF STATUTE. See Collins v. Montgomery Cty. Bd. Of Prison Inspectors, 176 F. 3d 681 (3rd Cir. 1999) (en banc) (equally divided court affirming lower court decision that limitation of fees to 150% of judgment does not violate equal protection).

8. The cost of hiring expert witnesses is not recoverable under Section 1988. West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83 (1991) (disallowing reimbursement for fees paid to experts in excess of $100,000). Instead, as part of the costs taxed pursuant to 28 U.S.C. § 1920, plaintiff may recover only the statutory witness fee authorized by 28 U.S.C. § 1821(b). "A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time occupied in going to and returning from the place of attendance . . . ."

Evans v. Jeff

In explaining its holding, the Court of Appeals emphasized that Rule 23(e) of the Federal Rules of Civil Procedure gives the court the power to approve the terms of all settlements of class actions, and that the strong federal policy embodied in the Fees Act normally requires an award of fees to prevailing plaintiffs in civil rights actions, including those who have prevailed through settlement. The court added that "[when] attorney's fees are negotiated as part of a class action settlement, a conflict frequently exists between the class lawyers' interest in compensation and the class members' interest in relief." 743 F.2d, at 651-652. "To avoid this conflict," the Court of Appeals relied on Circuit precedent which had "disapproved simultaneous negotiation of settlements and attorney's fees" absent a showing of "unusual circumstances." Id., at 652. In this case, the Court of Appeals found no such "unusual circumstances" and therefore held that an agreement on fees "should not have been a part of the settlement of the claims of the class." Ibid.

The defect, if any, in the negotiated fee waiver must be traced not to the rules of ethics but to the Fees Act. Following this tack, respondents argue that the statute must be construed to forbid a fee waiver that is the product of "coercion." They submit that a "coercive waiver" results when the defendant in a civil rights action (1) offers a settlement on the merits of equal or greater value than that which plaintiffs could reasonably expect to achieve at trial but (2) conditions the offer on a waiver of plaintiffs' statutory eligibility for attorney's fees. Such an offer, they claim, exploits the ethical obligation of plaintiffs' counsel to recommend settlement in order to avoid defendant's statutory liability for its opponents' fees and costs.

The question this case presents, then, is whether the Fees Act requires a district court to disapprove a stipulation seeking to settle a civil rights class action under Rule 23 when the offered relief equals or exceeds the probable outcome at trial but is expressly conditioned on waiver of statutory eligibility for attorney's fees. For reasons set out below, we are not persuaded that Congress has commanded that all such settlements must be rejected by the District Court. Moreover, on the facts of record in this case, we are satisfied that the District Court did not abuse its discretion by approving the fee waiver.

III

The text of the Fees Act provides no support for the proposition that Congress intended to ban all fee waivers offered in connection with substantial relief on the merits. On the contrary, the language of the Act, as well as its legislative history, indicates that Congress bestowed on the "prevailing party" (generally plaintiffs) a statutory eligibility for a discretionary award of attorney's fees in specified civil rights actions. It did not prevent the party from waiving this eligibility anymore than it legislated against assignment of this right to an attorney, such as effectively occurred here. Instead, Congress enacted the fee-shifting provision as "an integral part of the remedies necessary to obtain" compliance with civil rights laws, S. Rep. No. 94-1011, p. 5 (1976), to further the same general purpose -- promotion of respect for civil rights -- that led it to provide damages and injunctive relief. The statute and its legislative history nowhere suggest that Congress intended to forbid all waivers of attorney's fees -- even those insisted upon by a civil rights plaintiff in exchange for some other relief to which he is indisputably not entitled -- anymore than it intended to bar a concession on damages to secure broader injunctive relief. Thus, while it is undoubtedly true that Congress expected fee shifting to attract competent counsel to represent citizens deprived of their civil rights, it neither bestowed fee awards upon attorneys nor rendered them nonwaivable or nonnegotiable; instead, it added them to the arsenal of remedies available to combat violations of civil rights, a goal not invariably inconsistent with conditioning settlement on the merits on a waiver of statutory attorney's fees.

In fact, we believe that a general proscription against negotiated waiver of attorney's fees in exchange for a settlement on the merits would itself impede vindication of civil rights, at least in some cases, by reducing the attractiveness of settlement.

The Court of Appeals, respondents, and various amici supporting their position, however, suggest that the court's authority to pass on settlements, typically invoked to ensure fair treatment of class members, must be exercised in accordance with the Fees Act to promote the availability of attorneys in civil rights cases. Specifically, respondents assert that the State of Idaho could not pass a valid statute precluding the payment of attorney's fees in settlements of civil rights cases to which the Fees Act applies. See Brief for Respondents 24, n. 22. From this they reason that the Fees Act must equally preclude the adoption of a uniform state-wide policy that serves the same end, and accordingly contend that a consistent practice of insisting on a fee waiver as a condition of settlement in civil rights litigation is in conflict with the federal statute authorizing fees for prevailing parties, including those who prevail by way of settlement.³¹ Remarkably, there seems little disagreement on these points. Petitioners and the amici who support them never suggest that the district court is obligated to place its stamp of approval on every settlement in which the plaintiffs' attorneys have agreed to a fee waiver. The Solicitor General, for example, has suggested that a fee waiver need not be approved when the defendant had "no realistic defense on the merits," Brief for United States as Amicus Curiae Supporting Reversal 23, n. 9; see id., at 26-27,³² or if the waiver was part of a "vindictive effort . . . to teach counsel that they had better not bring such cases," Tr. of Oral Arg. 22.

We find it unnecessary to evaluate this argument, however, because the record in this case does not indicate that Idaho has adopted such a statute, policy, or practice. Nor does the record support the narrower proposition that petitioners' request to waive fees was a vindictive effort to deter attorneys from representing plaintiffs in civil rights suits against Idaho. It is true that a fee waiver was requested and obtained as a part of the early settlement of the education claims, but we do not understand respondents to be challenging that waiver, see Tr. of Oral Arg. 31-32, and they have not offered to prove that petitioners' tactics in this case merely implemented a routine state policy designed to frustrate the objectives of the Fees Act. Our own examination of the record reveals no such policy.

In light of the record, respondents must -- to sustain the judgment in their favor -- confront the District Court's finding that the extensive structural relief they obtained constituted an adequate quid pro quo for their waiver of attorney's fees.³³ The Court of Appeals did not overturn this finding. Indeed, even that court did not suggest that the option of rejecting the entire settlement and requiring the parties either to try the case or to attempt to negotiate a different settlement would have served the interests of justice. Only by making the unsupported assumption that the respondent class was entitled to retain the favorable portions of the settlement while rejecting the fee waiver could the Court of Appeals conclude that the District Court had acted unwisely.

What the outcome of this settlement illustrates is that the Fees Act has given the victims of civil rights violations a powerful weapon that improves their ability to employ counsel, to obtain access to the courts, and thereafter to vindicate their rights by means of settlement or trial. For aught that appears, it was the "coercive" effect of respondents' statutory right to seek a fee award that motivated petitioners' exceptionally generous offer. Whether this weapon might be even more powerful if fee waivers were prohibited in cases like this is another question,³⁴ but it is in any event a question that Congress is best equipped to answer. Thus far, the Legislature has not commanded that fees be paid whenever a case is settled. Unless it issues such a command, we shall rely primarily on the sound discretion of the district courts to appraise the reasonableness of particular class-action settlements on a case-by-case basis,³⁵ in the light of all the relevant circumstances. In this case, the District Court did not abuse its discretion in upholding a fee waiver which secured broad injunctive relief, relief greater than that which plaintiffs could reasonably have expected to achieve at trial.³⁶

The judgment of the Court of Appeals is reversed.

It is so ordered.

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

Ultimately, enforcement of the laws is what really counts. It was with this in mind that Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. § 1988 (Act or Fees Act). Congress authorized fee shifting to improve enforcement of civil rights legislation by making it easier for victims of civil rights violations to find lawyers willing to take their cases. Because today's decision will make it more difficult for civil rights plaintiffs to obtain legal assistance, a result plainly contrary to Congress' purpose, I dissent.

I

The Court begins its analysis by emphasizing that neither the language nor the legislative history of the Fees Act supports "the proposition that Congress intended to ban all fee waivers offered in connection with substantial relief on the merits." Ante, at 730. I agree. There is no evidence that Congress gave the question of fee waivers any thought at all. However, the Court mistakenly assumes that this omission somehow supports the conclusion that fee waivers are permissible. On the contrary, that Congress did not specifically consider the issue of fee waivers tells us absolutely nothing about whether such waivers ought to be permitted. It is black letter law that "[in] the absence of specific evidence of Congressional intent, it becomes necessary to resort to a broader consideration of the legislative policy behind [the] provision . . . ."

Obviously, the Fees Act is intended to "promote respect for civil rights." Congress would hardly have authorized fee awards in civil rights cases to promote respect for the securities laws. But discourse at such a level of generality is deceptive. The question is how did Congress envision that awarding attorney's fees would promote respect for civil rights? Without a clear understanding of the way in which Congress intended for the Fees Act to operate, we cannot even begin responsibly to go about the task of interpreting it. In theory, Congress might have awarded attorney's fees as simply an additional form of make-whole relief, the threat of which would "promote respect for civil rights" by deterring potential civil rights violators. If this were the case, the Court's equation of attorney's fees with damages would not be wholly inaccurate. However, the legislative history of the Fees Act discloses that this is not the case. Rather, Congress provided fee awards to ensure that there would be lawyers available to plaintiffs who could not otherwise afford counsel, so that these plaintiffs could fulfill their role in the federal enforcement scheme as "private attorneys general," vindicating the public interest.

Before the late 1960's, the concept of fee shifting in public interest litigation was virtually nonexistent. In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) (per curiam), this Court was called upon to interpret the attorney's fee provision of Title II of the then recently enacted Civil Rights Act of 1964, 42 U. S. C. § 2000a-3(b). We held that a prevailing plaintiff should ordinarily recover fees unless special circumstances rendered such an award unjust. Noting that "[when] the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law," we recognized that "[a] Title II suit is thus private in form only." Newman, 390 U.S., at 401. If a plaintiff obtains relief, he "does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority." Id., at 402 (footnote omitted). We recognized further that the right to recover attorney's fees was conferred by Congress to ensure that this private public-enforcement mechanism would operate effectively:

"If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees -- not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II." Ibid. (footnote omitted).

Newman interpreted the fee provision of Title II as intended to bridge the gap between the desire of an individual who has been deprived of a federal right to see that right vindicated and the financial ability of that individual to do so. More importantly, Newman recognized that Congress did not erect this bridge solely, or even primarily, to confer a benefit on such aggrieved individuals. Rather, Congress sought to capitalize on the happy coincidence that encouraging private actions would, in the long run, provide effective public enforcement of Title II. By ensuring that lawyers would be willing to take Title II cases, Congress made the threat of a lawsuit for violating Title II real, thereby deterring potntial violators.

After Newman, lower courts -- invoking their equitable powers to award attorney's fees -- adopted a similar rationale to award fees in cases brought under civil rights statutes that did not contain express provisions for attorney's fees.

In May 1975, this Court in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, ruled that the equitable powers of the federal courts did not authorize fee awards on the ground that a case served the public interest. Although recognizing that "Congress has opted to rely heavily on private enforcement to implement public policy and to allow counsel fees so as to encourage private litigation," the Court held that "congressional utilization of the private-attorney-general concept can in no sense be construed as a grant of authority to the Judiciary . . . to award attorneys' fees whenever the courts deem the public policy furthered by a particular statute important enough to warrant the award." Id., at 263. Instead, the Court ruled, only Congress could authorize awarding fees as a means of encouraging private actions in the name of public policy. Id., at 269-271.

In the wake of Alyeska, Congress acted to correct "anomalous gaps" in the availability of attorney's fees to enforce civil rights laws, S. Rep. No. 94-1011, p. 1 (1976) (hereafter S. Rep.). See H. R. Rep. No. 94-1558, p. 2 (1976) (hereafter H. R. Rep.); 122 Cong. Rec. 31472 (1976) (remarks of Sen. Kennedy). Testimony at hearings on the proposed legislation disclosed that civil rights plaintiffs, "a vast majority of [whom] cannot afford legal counsel," H. R. Rep. 1, were suffering "very severe hardships because of the Alyeska decision," id., at 2. The unavailability of fee shifting made it impossible for legal aid services, "already short of resources," to bring many lawsuits, and, without much possibility of compensation, private attorneys were refusing to take civil rights cases. Id., at 3. See generally Hearings on the Effect of Legal Fees on the Adequacy of Representation before the Subcommittee on Representation of Citizen Interests of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., pts. 1-4 (1973). Congress found that Alyeska had a "devastating" impact on civil rights litigation, and it concluded that the need for corrective legislation was "compelling." H. R. Rep. 3; see also, 122 Cong. Rec., supra, at 31471 (remarks of Sen. Scott), 31472 (remarks of Sen. Kennedy).

Accepting this Court's invitation, see Alyeska, supra, at 269-271, Congress passed the Fees Act in order to reestablish the Newman regime under which attorney's fees were awarded as a means of securing enforcement of civil rights laws by ensuring that lawyers would be willing to take civil rights cases. The legislative history manifests this purpose with monotonous clarity.

III

As this review of the legislative history makes clear, then, by awarding attorney's fees Congress sought to attract competent counsel to represent victims of civil rights violations. Congress' primary purpose was to enable "private attorneys general" to protect the public interest by creating economic incentives for lawyers to represent them. The Court's assertion that the Fees Act was intended to do nothing more than give individual victims of civil rights violations another remedy is thus at odds with the whole thrust of the legislation. Congress determined that the public as a whole has an interest in the vindication of the rights conferred by the civil rights statutes over and above the value of a civil rights remedy to a particular plaintiff.

I have gone to great lengths to show how the Court mischaracterizes the purpose of the Fees Act because the Court's error leads it to ask the wrong question. Having concluded that the Fees Act merely creates another remedy to vindicate the rights of individual plaintiffs, the Court asks whether negotiated waivers of statutory attorney's fees are "invariably inconsistent" with the availability of such fees as a remedy for individual plaintiffs. Ante, at 732. Not surprisingly, the Court has little difficulty knocking down this frail straw man. But the proper question is whether permitting negotiated fee waivers is consistent with Congress' goal of attracting competent counsel. It is therefore necessary to consider the effect on this goal of allowing individual plaintiffs to negotiate fee waivers.

A

Permitting plaintiffs to negotiate fee waivers in exchange for relief on the merits actually raises two related but distinct questions. First, is it permissible under the Fees Act to negotiate a settlement of attorney's fees simultaneously with the merits? Second, can the "reasonable attorney's fee" guaranteed in the Act be waived? As a matter of logic, either of these practices may be permitted without also permitting the other. For instance, one could require bifurcated settlement negotiations of merits and fees but allow plaintiffs to waive their fee claims during that phase of the negotiations. Alternatively, one could permit simultaneous negotiation of fees and merits but prohibit the plaintiff from waiving statutory fees. This latter possibility exists because there is a range of "reasonable attorney's fees" consistent with the Fees Act in any given case. Cf. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433-437 (1983); H. R. Rep. 8-9; S. Rep. 6; see generally Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 716-720 (CA5 1974) (listing relevant factors).

More importantly, since simultaneous negotiation and waiver may have different effects on the congressional policy of encouraging counsel to accept civil rights cases, each practice must be analyzed independently to determine whether or not it is consistent with the Fees Act. Unfortunately, the Court overlooks the logical independence of simultaneous negotiation and waiver and assumes that there cannot be one without the other. See ante, at 734-738, and n. 28. As a result, the Court's discussion conflates the different effects of these practices, and its opinion is of little use in coming to a fair resolution of this case. An independent examination leads me to conclude: (1) that plaintiffs should not be permitted to waive the "reasonable fee" provided by the Fees Act; but (2) that parties may undertake to negotiate their fee claims simultaneously with the merits so long as whatever fee the parties agree to is found by the court to be a "reasonable" one under the Fees Act.

B

1

It seems obvious that allowing defendants in civil rights cases to condition settlement of the merits on a waiver of statutory attorney's fees will diminish lawyers' expectations of receiving fees and decrease the willingness of lawyers to accept civil rights cases. Even the Court acknowledges "the possibility that decisions by individual clients to bargain away fee awards may, in the aggregate and in the long run, diminish lawyers' expectations of statutory fees in civil rights cases." Ante, at 741-742, n. 34. The Court tells us, however, that "[comment] on this issue" is "premature at this juncture" because there is not yet supporting "documentation." Ibid. The Court then goes on anyway to observe that "as a practical matter the likelihood of this circumstance arising is remote." Ibid.

I must say that I find the Court's assertions somewhat difficult to understand. To be sure, the impact of conditional fee waivers on the availability of attorneys will be less severe than was the restriction on fee awards created in Alyeska. However, that experience surely provides an indication of the immediate hardship suffered by civil rights claimants whenever there is a reduction in the availability of attorney's fee awards.⁷ Moreover, numerous courts and commentators have recognized that permitting fee waivers creates disincentives for lawyers to take civil rights cases and thus makes it more difficult for civil rights plaintiffs to obtain legal assistance.

But it does not require a sociological study to see that permitting fee waivers will make it more difficult for civil rights plaintiffs to obtain legal assistance. It requires only common sense. Assume that a civil rights defendant makes a settlement offer that includes a demand for waiver of statutory attorney's fees. The decision whether to accept or reject the offer is the plaintiff's alone, and the lawyer must abide by the plaintiff's decision. See, e. g., ABA, Model Rules of Professional Conduct 1.2(a) (1984); ABA, Model Code of Professional Responsibility EC 7-7 to EC 7-9 (1982). As a formal matter, of course, the statutory fee belongs to the plaintiff, ante, at 730, and n. 19, and thus technically the decision to waive entails a sacrifice only by the plaintiff. As a practical matter, however, waiver affects only the lawyer. Because "a vast majority of the victims of civil rights violations" have no resources to pay attorney's fees, H. R. Rep. 1, lawyers cannot hope to recover fees from the plaintiff and must depend entirely on the Fees Act for compensation.¹⁰ The plaintiff thus has no real stake in the statutory fee and is unaffected by its waiver. See Lipscomb v. Wise, 643 F.2d 319, 320 (CA5 1981) (per curiam). Consequently, plaintiffs will readily agree to waive fees if this will help them to obtain other relief they desire. As summed up by the Legal Ethics Committee of the District of Columbia Bar:

"Defense counsel . . . are in a uniquely favorable position when they condition settlement on the waiver of the statutory fee: They make a demand for a benefit that the plaintiff's lawyer cannot resist as a matter of ethics and one in which the plaintiff has no interest and therefore will not resist." Op. No. 147, reprinted in 113 Daily Washington Reporter, supra n. 8, at 394.

Of course, from the lawyer's standpoint, things could scarcely have turned out worse. He or she invested considerable time and effort in the case, won, and has exactly nothing to show for it. Is the Court really serious in suggesting that it takes a study to prove that this lawyer will be reluctant when, the following week, another civil rights plaintiff enters his office and asks for representation? Does it truly require that somebody conduct a test to see that legal aid services, having invested scarce resources on a case, will feel the pinch when they do not recover a statutory fee?

And, of course, once fee waivers are permitted, defendants will seek them as a matter of course, since this is a logical way to minimize liability. Indeed, defense counsel would be remiss not to demand that the plaintiff waive statutory attorney's fees. A lawyer who proposes to have his client pay more than is necessary to end litigation has failed to fulfill his fundamental duty zealously to represent the best interests of his client. Because waiver of fees does not affect the plaintiff, a settlement offer is not made less attractive to the plaintiff if it includes a demand that statutory fees be waived. Thus, in the future, we must expect settlement offers routinely to contain demands for waivers of statutory fees.¹²

The cumulative effect this practice will have on the civil rights bar is evident. It does not denigrate the high ideals that motivate many civil rights practitioners to recognize that lawyers are in the business of practicing law, and that, like other business people, they are and must be concerned with earning a living. The conclusion that permitting fee waivers will seriously impair the ability of civil rights plaintiffs to obtain legal assistance is embarrassingly obvious.

Because making it more difficult for civil rights plaintiffs to obtain legal assistance is precisely the opposite of what Congress sought to achieve by enacting the Fees Act, fee waivers should be prohibited. We have on numerous prior occasions held that "a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy."

This is simply straightforward application of the well-established principle that an agreement which is contrary to public policy is void and unenforceable.

This all seems so obvious that it is puzzling that the Court reaches a different result. The Court's rationale is that, unless fee waivers are permitted, "parties to a significant number of civil rights cases will refuse to settle . . . ." Ante, at 736. This is a wholly inadequate justification for the Court's result.

First, the effect of prohibiting fee waivers on settlement offers is just not an important concern in the context of the Fees Act. I agree with the Court that encouraging settlements is desirable policy. But it is judicially created policy, applicable to litigation of any kind and having no special force in the context of civil rights cases. The congressional policy underlying the Fees Act is, as I have argued throughout, to create incentives for lawyers to devote time to civil rights cases by making it economically feasible for them to do so. Supra, at 745-753. As explained above, permitting fee waivers significantly undercuts this policy. Thus, even if prohibiting fee waivers does discourage some settlements, a judicial policy favoring settlement cannot possibly take precedence over this express congressional policy. We must implement Congress' agenda, not our own.

In an attempt to justify its decision to elevate settlement concerns, the Court argues that settlement "provides benefits for civil rights plaintiffs as well as defendants and is consistent with the purposes of the Fees Act" because "'[some] plaintiffs will receive compensation in settlement where, on trial, they might not have recovered, or would have recovered less than what was offered.'" Ante, at 732-733 (quoting Marek v. Chesny, 473 U.S. 1, 10 (1985)); see also ante, at 731 (legislative history does not show that Congress intended to bar "even [waivers] insisted upon by a civil rights plaintiff in exchange for some other relief to which he is indisputably not entitled...") (footnote omitted).

As previously noted, by framing the purpose of the Fees Act in very general terms, the Court merely obscures the proper focus of discussion. The Fees Act was designed to help civil rights plaintiffs in a particular way -- by ensuring that there will be lawyers willing to represent them. The fact that fee waivers may produce some settlement offers that are beneficial to a few individual plaintiffs is hardly "consistent with the purposes of the Fees Act," ante, at 733, if permitting fee waivers fundamentally undermines what Congress sought to achieve. Each individual plaintiff who waives his right to statutory fees in order to obtain additional relief for himself makes it that much more difficult for the next victim of a civil rights violation to find a lawyer willing or able to bring his case. As obtaining legal assistance becomes more difficult, the "benefit" the Court so magnanimously preserves for civil rights plaintiffs becomes available to fewer and fewer individuals, exactly the opposite result from that intended by Congress.

Moreover, I find particularly unpersuasive the Court's apparent belief that Congress enacted the Fees Act to help plaintiffs coerce relief to which they are "indisputably not entitled." See ante, at 731, 732. It may be that, in particular cases, some defendants' fears of incurring liability for plaintiff's attorney's fees will give plaintiffs leverage to coerce relief they do not deserve. If so, this is an unfortunate cost of a statute intended to ensure that plaintiffs can obtain the relief to which they are entitled. And it certainly is not a result we must preserve at the expense of the central purpose of the Fees Act.

Second, even assuming that settlement practices are relevant, the Court greatly exaggerates the effect that prohibiting fee waivers will have on defendants' willingness to make settlement offers. This is largely due to the Court's failure to distinguish the fee waiver issue from the issue of simultaneous negotiation of fees and merits claims. Supra, at 754. The Court's discussion mixes concerns over a defendant's reluctance to settle because total liability remains uncertain with reluctance to settle because the cost of settling is too high. See ante, at 734-737. However, it is a prohibition on simultaneous negotiation, not a prohibition on fee waivers, that makes it difficult for the defendant to ascertain his total liability at the time he agrees to settle the merits. Thus, while prohibiting fee waivers may deter settlement offers simply because requiring the defendant to pay a "reasonable attorney's fee" increases the total cost of settlement, this is a separate issue altogether, and the Court's numerous arguments about why defendants will not settle unless they can determine their total liability at the time of settlement, ante, at 734, 735, 736, are simply beside the point. With respect to a prohibition on fee waivers (and again merely assuming that effects on settlement are relevant), the sole question to be asked is whether the increased cost of settlement packages will prevent enough settlement offers to be a dispositive factor in this case.

The Court asserts, without factual support, that requiring defendants to pay statutory fee awards will prevent a "significant number" of settlements. Ante, at 734-735. It is, of course, ironic that the same absence of "documentation" which makes comment on the effects of permitting fee waivers "premature at this juncture," ante, at 742, n. 34, does not similarly affect the Court's willingness to speculate about what to expect if fee waivers are prohibited. Be that as it may, I believe that the Court overstates the extent to which prohibiting fee waivers will deter defendants from making settlement offers. Because the parties can negotiate a fee (or a range of fees) that is not unduly high and condition their settlement on the court's approval of this fee, the magnitude of a defendant's liability for fees in the settlement context need be neither uncertain nor particularly great. Against this, the defendant must weigh the risk of a nonnegotiated fee to be fixed by the court after a trial; as the Court reminds us, fee awards in this context may be very uncertain and, potentially, of very great magnitude. See ante, at 734-735, nn. 23, 24. Thus, powerful incentives remain for defendants to seek settlement. Moreover, the Court's decision last Term in Marek v. Chesny, 473 U.S. 1 (1985), provides an additional incentive for defendants to make settlement offers, namely, the opportunity to limit liability for attorney's fees if the plaintiff refuses the offer and proceeds to trial.

All of which is not to deny that prohibiting fee waivers will deter some settlements; any increase in the costs of settling will have this effect. However, by exaggerating the size and the importance of fee awards, and by ignoring the options available to the parties in settlement negotiations, the Court makes predictions that are inflated. An actual disincentive to settling exists only where three things are true: (1) the defendant feels he is likely to win if he goes to trial, in which case the plaintiff will recover no fees; (2) the plaintiff will agree to relief on the merits that is less costly to the defendant than litigating the case; and (3) adding the cost of a negotiated attorney's fee makes it less costly for the defendant to litigate. I believe that this describes a very small class of cases -- although, like the Court, I cannot "document" the assertion.

C

I would, on the other hand, permit simultaneous negotiation of fees and merits claims, since this would not contravene the purposes of the Fees Act. Congress determined that awarding prevailing parties a "reasonable" fee would create necessary -- and sufficient -- incentives for attorneys to work on civil rights cases. Prohibiting plaintiffs from waiving statutory fees ensures that lawyers will receive this "reasonable" statutory fee. Thus, if fee waivers are prohibited, permitting simultaneous fees and merits negotiations will not interfere with the Act; the lawyer will still be entitled to and will still receive a reasonable attorney's fee. Indeed, permitting simultaneous negotiations in such circumstances may even enhance the effectiveness of the Fees Act by making it easier for a lawyer to dispose of his cases more quickly. This frees up the lawyer's time to take other cases and may enhance his reputation as an effective advocate who quickly obtains relief for clients.

IV

Although today's decision will undoubtedly impair the effectiveness of the private enforcement scheme Congress established for civil rights legislation, I do not believe that it will bring about the total disappearance of "private attorneys general." It is to be hoped that Congress will repair this Court's mistake. In the meantime, other avenues of relief are available. The Court's decision in no way limits the power of state and local bar associations to regulate the ethical conduct of lawyers. Indeed, several Bar Associations have already declared it unethical for defense counsel to seek fee waivers. See Committee on Professional Ethics of the Association of the Bar of the City of New York, Op. No. 82-80 (1985); District of Columbia Legal Ethics Committee, Op. No. 147, supra n. 8, 113 Daily Washington Law Reporter, at 389. Such efforts are to be commended and, it is to be hoped, will be followed by other state and local organizations concerned with respecting the intent of Congress and with protecting civil rights.

In addition, it may be that civil rights attorneys can obtain agreements from their clients not to waive attorney's fees.²⁰ Such agreements simply replicate the private market for legal services (in which attorneys are not ordinarily required to contribute to their client's recovery²¹), and thus will enable civil rights practitioners to make it economically feasible -- as Congress hoped -- to expend time and effort litigating civil rights claims.

During the floor debates over passage of the Fees Act, Senator Hugh Scott reminded the Congress in terms that might well have been addressed to the Court today that "we must bear in mind at all times that rights that cannot be enforced through the legal process are valueless; such a situation breeds cynicism about the basic fairness of our judicial system. [We] must be vigilant to insure that our legal rights are not hollow ones." 122 Cong. Rec. 31471 (1976).

Evans v. Jeff D

Evans v. Jeff D

Notes on Evans v. Jeff