1. On what basis did the Pierson Court find that the legislature conferred qualified immunity when it enacted Section 1983? Does the text of the Constitution prescribe qualified immunity? May state common law afford immunity to an official who violates the Constitution? Is the legislature empowered to exempt government officials from adherence to constitutional mandates? If the answer to the three preceding questions is “no,” is the 1871 Congress’ supposed attempt to supply qualified immunity unconstitutional?
2. What is the test for qualified immunity set forth in Pierson?
   1. The Pierson Court observed that plaintiffs “did not simply argue that they were arrested under a statute later held unconstitutional” but “attempted to prove that the police officers arrested them solely for using the “White Only” waiting room, that no crowd was present, and that no one threatened violence or seemed about to cause a disturbance.” If on remand plaintiffs succeed in proving the arresting officers lacked probable cause on the latter theory of the case, is there any set of facts under which the officers could meet the qualified immunity test?

WOOD v. STRICKLAND, 420 U.S. 308 (1975)

Mr. Justice White delivered the opinion of the Court.

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

I

* * * * *

II

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

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

[4]Petitioners as members of the school board assert here, as they did below, an absolute immunity from liability under § 1983 and at the very least seek to reinstate the judgment of the District Court. If they are correct and the District Court’s dismissal should be sustained, we need go no further in this case. Moreover, the immunity question involves the construction of a federal statute, and our practice is to deal with possibly dispositive statutory issues before reaching questions turning on the construction of the Constitution. Cf. Hagans v. Lavine, 415 U.S. 528, 549 (1974). ^[1] We essentially sustain the position of the Court of Appeals with respect to the immunity issue.

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

[6]This Court has decided three cases dealing with the scope of the immunity protecting various types of governmental officials from liability for damages under § 1983. In Tenney v. Brandhove, 341 U.S. 367 (1951), the question was found to be one essentially of statutory construction ^[2]. Noting that the language of § 1983 is silent with respect to immunities, the Court concluded that there was no basis for believing that Congress intended to eliminate the traditional immunity of legislators from civil liability for acts done within their sphere of legislative action. That immunity, “so well grounded in history and reason …,” 341 U.S. at 376, was absolute and consequently did not depend upon the motivations of the legislators. In Pierson v. Ray, 386 U.S. 547, 554 (1967), finding that “[the] legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities” in enacting § 1983, we concluded that the common-law doctrine of absolute judicial immunity survived. Similarly, § 1983 did not preclude application of the traditional rule that a policeman, making an arrest in good faith and with probable cause, is not liable for damages, although the person arrested proves innocent. Consequently the Court said: “Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.” 386 U.S. at 555 (footnote omitted). Finally, last Term we held that the chief executive officer of a State, the senior and subordinate officers of the State’s National Guard, and the president of a state-controlled university were not absolutely immune from liability under § 1983, but instead were entitled to immunity, under prior precedent and in light of the obvious need to avoid discouraging effective official action by public officers charged with a considerable range of responsibility and discretion, only if they acted in good faith as defined by the Court:

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

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

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

[9]Liability for damages for every action which is found subsequently to have been violative of a student’s constitutional rights and to have caused compensable injury would unfairly impose upon the school decisionmaker the burden of mistakes made in good faith in the course of exercising his discretion within the scope of his official duties. School board members, among other duties, must judge whether there have been violations of school regulations and, if so, the appropriate sanctions for the violations. Denying any measure of immunity in these circumstances “would contribute not to principled and fearless decision-making but to intimidation.” Pierson v. Ray, supra, at 554. The imposition of monetary costs for mistakes which were not unreasonable in the light of all the circumstances would undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school and the students. The most capable candidates for school board positions might be deterred from seeking office if heavy burdens upon their private resources from monetary liability were a likely prospect during their tenure.^[3]

[10]These considerations have undoubtedly played a prime role in the development by state courts of a qualified immunity protecting school officials from liability for damages in lawsuits claiming improper suspensions or expulsions.^[4]

But at the same time, the judgment implicit in this common-law development is that absolute immunity would not be justified since it would not sufficiently increase the ability of school officials to exercise their discretion in a forthright manner to warrant the absence of a remedy for students subjected to intentional or otherwise inexcusable deprivations.

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

“Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity—absolute or qualified—for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.” Scheuer v. Rhodes, 416 U.S., at 241-242 (footnote omitted).

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

III

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

“To justify the suspension, it was necessary for the Board to establish that the students possessed or used an ‘intoxicating’ beverage at a school-sponsored activity. No evidence was presented at either meeting to establish the alcoholic content of the liquid brought to campus. Moreover, the Board made no finding that the liquid was intoxicating. The only evidence as to the nature of the drink was that supplied by the girls, and it is clear that they did not know whether the beverage was intoxicating or not.” 485 F.2d at 190.

* * * * *

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

* * * * *

[15]When the regulation is construed to prohibit the use and possession of beverages containing alcohol, there was no absence of evidence before the school board to prove the charge against respondents. The girls had admitted that they intended to “spike” the punch and that they had mixed malt liquor into the punch that was served. The third girl estimated at the time of their admissions to Waller that the malt liquor had an alcohol content of 20%. After the expulsion decision had been made and this litigation had begun, it was conclusively determined that the malt liquor in fact has an alcohol content not exceeding 3.2% by weight. ^[5] Testimony at trial put the alcohol content of the punch served at 0.9%.^[6]

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

IV

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

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

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

So ordered.

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

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

[21]The holding of the Court on the immunity issue is set forth in the margin. It would impose personal liability on a school official who acted sincerely and in the utmost good faith, but who was found—after the fact—to have acted in “ignorance … of settled, indisputable law.” Ante, at 321. Or, as the Court also puts it, the school official must be held to a standard of conduct based not only on good faith “but also on knowledge of the basic, unquestioned constitutional rights of his charges.” Ante, at 322. Moreover, ignorance of the law is explicitly equated with “actual malice.” Ante, at 321. This harsh standard, requiring knowledge of what is characterized as “settled, indisputable law,” leaves little substance to the doctrine of qualified immunity. The Court’s decision appears to rest on an unwarranted assumption as to what lay school officials know or can know about the law and constitutional rights. These officials will now act at the peril of some judge or jury subsequently finding that a good-faith belief as to the applicable law was mistaken and hence actionable.^[7]

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

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

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

[24]The italicized sentence from Scheuer states, as I view it, the correct standard for qualified immunity of a government official: whether in light of the discretion and responsibilities of his office, and under all of the circumstances as they appeared at the time, the officer acted reasonably and in good faith. This was the standard applied to the Governor of a State charged with maliciously calling out National Guardsmen who killed and wounded Kent State students.^[8] Today’s opinion offers no reason for imposing a more severe standard on school board members charged only with wrongfully expelling three teenage pupils.

* * * * *

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

Wood v. Strickland – Audio and Transcript of Oral Argument

Footnotes

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

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

    

2. “Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here? Did it mean to subject legislators to civil liability for acts done within the sphere of legislative activity? Let us assume, merely for the moment, that Congress has constitutional power to limit the freedom of State legislators acting within their traditional sphere. That would be a big assumption. But we would have to make an even rasher assumption to find that Congress thought it had exercised the power. These are difficulties we cannot hurdle. The limits of §§ 1 and 2 of the 1871 statute … were not spelled out in debate. We cannot believe that Congress—itself a staunch advocate of legislative freedom—would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us.” 341 U.S., at 376. ↵

    

3. The overwhelming majority of school board members are elected to office. See WHITE, LOCAL SCHOOL BOARDS: ORGANIZATION AND PRACTICES 8 (U.S. Office of Education, OE-23023, Bulletin No. 8, 1962); NATIONAL SCHOOL BOARDS ASSOCIATION, SURVEY OF PUBLIC EDUCATION IN THE MEMBER CITIES OF THE COUNCIL OF BIG CITY BOARDS OF EDUCATION 3 (Nov. 1968); Campbell, Cunningham, & McPhee, supra, n.10, at 164-170. Most of the school board members across the country receive little or no monetary compensation for their service. WHITE, supra, at 67-79; NATIONAL SCHOOL BOARDS ASSOCIATION, supra, at 3, 15-21; Campbell, Cunningham, & McPhee, supra, at 172. ↵

    

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

    

5. This percentage content was established through the deposition of an officer of the company that produced “Right Time” malt liquor. App. 93-94. ↵

    

6. Tr. 205 (testimony of Dr. W. F. Turner). ↵

    

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

    

8. The decision of the Court in Scheuer with respect to qualified immunity is consistent with Mr. Chief Justice Warren’s opinion for the Court in Pierson v. Ray, 386 U.S. 547 (1967), where it was said: “If the jury believed the testimony of the officers and disbelieved that of the ministers, and if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact unconstitutional.” Id., at 557. As in Scheuer, the standard prescribed is one of acting in good faith in accordance with reasonable belief that the action was lawful and justified. Not even police officers were held liable for ignorance of “settled, indisputable law.” ↵

Notes on Wood v. Strickland: Qualified Immunity Under Section 1983

1. What are the policies that underlie qualified immunity?
   1. Do these policies in fact justify the immunity? What is the effect of conferring qualified immunity on the allocation of the risk of loss from constitutional violations? In order to ensure that the victim does not bear the loss, should qualified immunity be denied if the entity that employs the official who violated the Constitution is not liable for damages?
   2. May the qualified immunity defense be asserted where the Complaint seeks equitable relief rather than damages? See Wood v. Strickland at n.6.
2. What is the standard that the government actor must satisfy to be shielded from liability by the qualified immunity?
   1. What is the test for the qualified immunity prescribed in Scheuer v. Rhodes, 416 U.S. 232 (1976)?
   2. What is the test for the qualified immunity promulgated in Wood v. Strickland?
      1. Under the subjective prong, is immunity available to an official who intends to cause injury to the plaintiff but does not specifically intend to violate the plaintiff’s constitutional rights?
      2. Is there any limit on the relevant factors to be examined in determining whether the official satisfies the objective tier of the qualified immunity?
3. Under Wood v. Strickland, what is the significance of whether the right violated was “clearly established” at the time of the deprivation? Is the immunity per se unavailable where the right was “clearly established?” Conversely, is either element of the immunity satisfied as a matter of law where the right was not “clearly established?”
4. What test for the qualified immunity is proposed by the dissenters in Wood? Why do they disagree with the standard of the majority opinion?
5. Neither the district court nor the court of appeals addressed whether the test for qualified immunity should be adjusted to render the state of the law a signature element. Because the district court believed immunity is governed by a purely subjective good-faith test, it had no cause to assess whether to single out the state of the law under the objective prong. Strickland & Crain v. Inlow, 348 F. Supp. 244, 250-54 (W.D. Ark. 1972). While holding immunity is to be gauged by a purely objective standard, the court of appeals applied the test the Supreme Court set forth in Scheuer v. Rhodes—the school board members would be immune only if “in light of all the circumstances, [they] act[ed] in good faith.” Strickland v. Inlow, 485 F.2d 186, 191 (8th Cir. 1973). The court of appeals then remanded the case to the district court for a new trial against the school board members under the Scheuer test.  Neither party asked the Supreme Court to alter the immunity test to condition immunity on the clarity of the law. During oral argument, the board members’ counsel conceded that Scheuer v. Rhodes supplied the applicable immunity standard. Transcript of Oral Argument, at 11, Wood v. Strickland, 420 U.S. 308 (1975) (No. 73-1285). At no juncture did defendants’ counsel suggest there was any ambiguity in the law regarding due process that should affect the immunity analysis. Rather, counsel argued that the board members should be immune under Scheuer because the district court had found “School Board members had reasonable grounds to believe that their regulation had been violated.” Id. Likewise, plaintiffs never contended that the state of the law should inform or be determinative of immunity. Instead, plaintiffs relied upon the factual deficiencies in the procedures that gave rise to the Board’s suspension of the students to demonstrate the school board members did not act objectively in good faith. Brief for Respondents at 46, Wood, 420 U.S. 308 (No. 73-1285).  Having held that the school board members did not violate the substantive due process rights of the students, the Court had no occasion to address qualified immunity on that claim. The Court remanded the case for consideration of whether the officials violated the students’ procedural due process rights, an issue not addressed by the district court or court of appeals. The Court did not suggest the law governing procedural due process was unsettled. To the contrary, the Court noted, “Over the past 13 years the Courts of Appeals have without exception held that procedural due process requirements must be satisfied if a student is to be expelled.” Wood, 420 U.S. at 324 n.15.  Why, then, did the Court interject the clarity of the state of the law into the immunity analysis?

PROCUNIER v. NAVARETTE, 434 U.S. 555 (1978)

Mr. Justice White delivered the opinion of the Court.

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

* * * * *

[2]In support of their motion for summary judgment, petitioners argued that on the record before the court they were immune from liability for damages under § 1983 and hence were entitled to judgment as a matter of law. The claim was not that they shared the absolute immunity accorded judges and prosecutors but that they were entitled to the qualified immunity accorded those officials involved in Scheuer v. Rhodes, 416 U.S. 232 (1974), and Wood v. Strickland, 420 U.S. 308 (1975). The Court of Appeals appeared to agree that petitioners were entitled to the claimed degree of immunity but held that they were nevertheless not entitled to summary judgment because in the court’s view there were issues of fact to be resolved and because when the facts were viewed most favorably to respondent, it could not be held that petitioners were entitled to judgment as a matter of law. Without disagreeing that petitioners enjoyed a qualified immunity from damages liability under § 1983, respondent defends the judgment of the Court of Appeals as a proper application of § 1983 and of the Court’s cases construing it.

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

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

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

* * * * *

[6]Whether the state of the law is evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court, there was no “clearly established” First and Fourteenth Amendment right with respect to the correspondence of convicted prisoners in 1971-1972.^[9] As a matter of law, therefore, there was no basis for rejecting the immunity defense on the ground that petitioners knew or should have known that their alleged conduct violated a constitutional right. Because they could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, petitioners did not act with such disregard for the established law that their conduct “cannot reasonably be characterized as being in good faith.” Wood v. Strickland, 420 U.S. at 322. ^[10]

[7]Neither should petitioners’ immunity defense be overruled under the second branch of the Wood v. Strickland standard, which would authorize liability where the official has acted with “malicious intention” to deprive the plaintiff of a constitutional right or to cause him “other injury.” This part of the rule speaks of “intentional injury,” contemplating that the actor intends the consequences of his conduct. See RESTATEMENT (SECOND) OF TORTS § 8A (1965). The third claim for relief with which we are concerned here, however, charges negligent conduct, which normally implies that although the actor has subjected the plaintiff to unreasonable risk, he did not intend the harm or injury that in fact resulted. See id., at § 282 and Comment d. Claims 1 and 2 of the complaint alleged intentional and bad-faith conduct in disregard of Navarette’s constitutional rights; but claim 3, as the court below understood it and as the parties have treated it, was limited to negligence. The prison officers were charged with negligent and inadvertent interference with the mail and the supervisory personnel with negligent failure to provide proper training. To the extent that a malicious intent to harm is a ground for denying immunity, that consideration is clearly not implicated by the negligence claim now before us.^[11]

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

Reversed.

Mr. Chief Justice Burger, dissenting.

* * * * *

Mr. Justice Stevens, dissenting.

[9]Today’s decision, coupled with O’Connor v. Donaldson, 422 U.S. 563, strongly implies that every defendant in a § 1983 action is entitled to assert a qualified immunity from damage liability. As the immunity doctrine developed, the Court was careful to limit its holdings to specific officials,^[12] and to insist that a considered inquiry into the common law was an essential precondition to the recognition of the proper immunity for any official.^[13] These limits have now been abandoned. In Donaldson, without explanation and without reference to the common law, the Court held that the standard for judging the immunity of the superintendent of a mental hospital is the same as the standard for school officials; today the Court purports to apply the same standard to the superintendent of a prison system and to various correction officers.^[14]

* * * * *

Procunier v. Navarette – Audio and Transcript of Oral Argument

Footnotes

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

    

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

     

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

     

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

     

13. In Imbler v. Pachtman, 424 U.S. 409, 421, the Court stated: “As noted above, our earlier decisions on § 1983 immunities were not products of judicial fiat that officials in different branches of government are differently amenable to suit under § 1983. Rather, each was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” ↵

     

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

Notes on Procunier v. Navarette

A. Which Officials are Entitled to Assert Qualified Immunity?

1. 1. The district court in Procunier granted summary judgment to the prison officials without issuing an opinion. The court of appeals reversed. The court held that qualified immunity is not to be extended automatically to all public officials who are denied absolute immunity. Instead, the court of appeals reasoned, prison officials could assert qualified immunity only if there existed a common law tradition of immunity for prison officials and such immunity was supported by public policy. The court of appeals instructed the district court to determine on remand whether, under this standard, prison officials were entitled to invoke the immunity defense. Navarette v. Enomoto, 536 F.2d 277, 280 (9th Cir. 1976). On what basis does the Procunier Court find prison officials may avail themselves of the qualified immunity?
   2. In Tower v. Glover, 467 U.S. 914 (1984), Billy Irl Glover filed a Section 1983 action against the public defenders who unsuccessfully represented him on a robbery charge. Glover alleged that the defense attorneys had conspired with the trial and appellate court judges, as well as the Attorney General of Oregon, to secure his conviction. The Supreme Court had held in Polk County v. Dodson, 454 U.S. 312 (1981) that appointed counsel in a state prosecution does not act under color of state law for purposes of Section 1983. However, the Court in Dennis v. Sparks, 449 U.S. 24 (1980) held that private persons who are alleged to have engaged in a conspiracy with state officials to deprive a person of federal constitutional rights do act under color of state law and are therefore suable under Section 1983. The Court in Tower granted certiorari to determine whether the public defenders were protected by any immunity, and reasoned as follows:
      

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

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

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

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

      * * * * *

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

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

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

   3. In Richardson v. McKnight, 521 U.S. 399 (1997), the Supreme Court, in a 5-4 opinion, held that guards employed by a private prison management firm were not entitled to assert a qualified immunity defense in prisoner Section 1983 actions. The Court first observed that neither the English nor American common law afforded immunity to private jailers. 521 U.S. at 404-07. The Court rejected the entreaty that the defendants were deserving of immunity because they serve the same function as state prison guards. The Court reasoned that its precedents employ a functional approach to decide only which type of immunity—absolute or qualified—applied to governmental officials; it had never held that performance of a governmental function triggers a qualified immunity to shield private actors from Section 1983 liability. “Indeed, a purely functional approach bristles with difficulty, particularly since, in many areas, government and private industry may engage in fundamentally similar activities, ranging from electricity production, to waste disposal, to even mail delivery.” 521 U.S. at 409.  The Court then elaborated why the purposes of qualified immunity do not pertain when the defendant is employed by a private entity:
      

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

      * * * * *

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

      * * * * *

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

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

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

      521 U.S. at 409-12. See also Wyatt v. Cole, 504 U.S. 158 (1992) (finding rationale for qualified immunity does not pertain to private parties sued for filing state replevin action found to have violated due process).

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

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

      521 U.S. at 418-20.

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

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

      521 U.S. at 420-21.

   4. In Filarsky v. Delia, 566 U.S. 377 (2012), the court of appeals held a private lawyer, who had been hired by the City of Rialto to investigate whether a city firefighter was misusing his medical leave to perform construction on his home, could not assert qualified immunity. The Supreme Court reversed, finding that in the mid 1800s, private individuals performed many governmental functions on a part-time or episodic basis. The common law extended the same immunity to individuals working part-time for the government as was available to full-time employees executing the same responsibilities. Therefore, the Court reasoned, “immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis.” Id. at 389. The Court distinguished Richardson v. McKnight, 521 U.S. 399 (1997) as follows:
      

      Richardson was a self-consciously “narrow decision.” … [T]he Court emphasized that the particular circumstances of that case—“a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertak[ing] that task for profit and potentially in competition with other firms”—combined sufficiently to mitigate the concerns underlying recognition of governmental immunity under § 1983. Nothing of the sort is involved here, or in the typical case of an individual hired by the government to assist in carrying out its work.

      Id. at 393.

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

      B. The Qualified Immunity Standard

1. 1. California prison regulations permitted prison officials to bar mailings “that pertain to criminal activity; are lewd, obscene or defamatory; contain prison gossip or discussion of other inmates; or are otherwise inappropriate.” The same regulation prohibited prison officials from interfering with correspondence between the inmate and his attorney. Procunier, 434 U.S. at 558 n.3. Contrary to the regulation, the warden took the position that officials could confiscate any inmate mail, including legal correspondence, “if we don’t feel it is right or necessary.” Id.Navarette submitted affidavits contradicting the officials’ conclusory contention that they had acted with the good faith belief that they were abiding by prison mail regulations. The court of appeals found there was a dispute of material fact as to whether prison officials harbored a reasonable and good faith belief that their conduct was lawful and complied with regulations. The court of appeals’ immunity analysis did not assess whether the constitutional right was clearly established or posit the implications for the defense if the right were or were not settled.

      In addressing whether Congress intended to extend Section 1983 to claims for negligent deprivations of constitutional rights–the lone question on which the Court granted certiorari–the briefs of the parties drew support for their respective positions by analogizing to the Court’s qualified immunity decisions. See Brief for Petitioners at 12-13. Procunier, 434 U.S. 555 (No. 76-446) (arguing that immunity test set forth in Pierson and Wood demonstrates Section 1983 is limited to intentional conduct); Brief for Respondent 20-27 and Brief for the American Civil Liberties Union as Amicus Curiae Supporting Respondents at 10, 14-15, Procunier, 434 U.S. 555 (No. 76-446) (averring that qualified immunity cases support liability for objectively unreasonable deprivations). However, neither party argued a) whether the state of the law should be dispositive of the immunity defense; b) whether public officials should be permitted to offer evidence of the reasonableness of their actions where the right was clearly established, or c) whether plaintiff should be precluded from offering evidence of the unreasonableness of official action when the right was not settled.

      1. Does Procunier purport to overrule or modify Wood v. Strickland? Does the test for the objective tier of the immunity defined by Justice White in Procunier differ from the standard he set forth in Wood? Was the issue of amending the immunity standard properly before the Court? Did the Court have the power to change the test for immunity?
      2. After Procunier, does the official satisfy the objective tier of the immunity standard as a matter of law whenever the right violated was not “clearly established?” Could the prison officials’ belief in the propriety of their refusal to mail Navarette’s legal correspondence have been unreasonable, even if it was not “clearly established” that the First Amendment protected Navarette’s right to send letters to his attorney? Should an official be freed from Section 1983 liability for conduct that is unreasonable under all the circumstances whenever it was not also “clearly established” that her actions would violate the Constitution?
      3. Is the official automatically deprived of immunity where the constitutional right violated was clearly established? May the official successfully assert immunity, even where the right was clearly established, if his conduct was reasonable under all the circumstances? Did the Procunier Court have any reason to address this issue? Can the Court’s test for immunity where the right was clearly established be reconciled with the Court’s treatment of immunity where the right was not clearly established?

      HARLOW v. FITZGERALD, 457 U.S. 800 (1982)

      Justice Powell delivered the opinion of the Court

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

      I

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

      * * * * *

      [3]Together with their codefendant Richard Nixon, petitioners Harlow and Butterfield moved for summary judgment on February 12, 1980. In denying the motion the District Court upheld the legal sufficiency of Fitzgerald’s Bivens (Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)) claim under the First Amendment and his “inferred” statutory causes of action under 5 U.S.C. § 7211 (1976 ed., Supp. IV) and 18 U.S.C. § 1505.^[15] The court found that genuine issues of disputed fact remained for resolution at trial. It also ruled that petitioners were not entitled to absolute immunity. App. to Pet. for Cert. 1a-3a.

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

      * * * * *

      III

      A

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

      * * * * *

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

      * * * * *

      C

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

      * * * * *

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

      IV

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

      A

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

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

      B

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

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

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

      [15]Consistently with the balance at which we aimed in Butz, we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Procunier v. Navarette, 434 U.S. 555, 565 (1978); Wood v. Strickland, 420 U.S., at 322.^[16]

      [16]Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law,^[17] should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.^[18] If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.

      [17]By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken “with independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554 (1967).^[19]

      * * * * *

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

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

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

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

      Justice Rehnquist, concurring.

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

      Chief Justice Burger, dissenting.

      * * * * *

      Harlow v. Fitzgerald – Audio and Transcript of Oral Argument

      Footnotes

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

           

      16. This case involves no issue concerning the elements of the immunity available to state officials sued for constitutional violations under 42 U.S.C. § 1983. We have found previously, however, that it would be “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.” Butz v. Economou, 438 U.S., at 504. Our decision in no way diminishes the absolute immunity currently available to officials whose functions have been held to require a protection of this scope. ↵

           

      17. This case involves no claim that Congress has expressed its intent to impose “no fault” tort liability on high federal officials for violations of particular statutes or the Constitution. ↵

           

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

           

      19. We emphasize that our decision applies only to suits for civil damages arising from actions within the scope of an official’s duties and in “objective” good faith. We express no view as to the conditions in which injunctive or declaratory relief might be available. ↵

      Notes on Harlow v. Fitzgerald: Qualified Immunity Redefined

      1. In what respects did the Court alter the elements of the qualified immunity?

      1. 1. After Harlow, may an official who intended to violate plaintiff’s constitutional rights or intended to injure the plaintiff be held liable if the right invaded was not clearly established?
         2. Is an official who deprived plaintiff of a constitutional right in violation of explicit agency policy or orders immune if the right was not clearly established? May the injured party offer evidence of the policy or orders? Discover such evidence?
      2. In their brief to the Court, defendants did not ask the Court to stay discovery or to abandon the common law requirement that an official must subjectively act in good faith to be immune. Rather, defendants asked the Court to heighten the evidentiary burden plaintiff would have to meet to establish a dispute of material fact as to subjective prong of the immunity defense.  Defendants submitted that after discovery, the plaintiff should be required to present sufficient evidence of bad faith to satisfy either a preponderance of the evidence or clear and convincing evidence standard in order to survive a motion for summary judgment.  Brief for the Petitioners at 79, Harlow, 457 U.S. 800 (1982) (Nos. 79-1738, 80-945).  During oral argument, counsel reiterated that defendants were urging the Court to require plaintiffs to prove malice by a standard that was more demanding than preponderance of the evidence.  Transcript of Oral Argument at 14, Harlow v. Fitzgerald, 457 U.S. 800 (Nos. 79-1738, 80-945), available at 1981 U.S. Trans. LEXIS 17.  Counsel argued that the Court could “significantly reduce the number of cases that would have to go to trial and increase the number in which a motion for summary judgment was granted” if the Court were “to enjoin upon the lower courts close scrutiny of allegations of malice, applying the two standards of Wood against Strickland.” Id. at 20 (emphasis supplied).
      3. Did the Court’s modification of the standards governing the qualified immunity arise out of a concern that the existing test did not adequately shield federal officials from liability for constitutional violations? A 1979 study of all reported Bivens cases revealed that the plaintiffs prevailed in but 5 of the 136 cases in which judgment or dismissal was entered.  Note, “Damages or Nothing”—The Efficacy of the Bivens-Type Remedy, 64 CORNELL L. REV. 667, 694 (1979).  The remaining 131 cases were disposed of on the following grounds:

         No meritorious claim – 40

         No Bivens-type cause of action – 8

         No constitutional violation – 32

         Grounds unrelated to merits – 89

         Proper defendant problems – 18

         Improper personal jurisdiction or service of process – 12

         Insufficient jurisdictional amount – 5

         Statute of limitations bar – 3

         Sovereign immunity bar – 26

         Individual immunity bar – 51

         Other – 32

         Relationship to merits unknown – 21

         General verdict by jury – 3

         Insufficient pleadings – 9

         Other – 9

         Total judgments for defendants – 131

         Id. at 695.

      4. Why did the Court find it necessary to adjust the qualified immunity? What evidence did the Court cite to demonstrate that the existing immunity test impeded pretrial disposition of civil actions to recover damages for constitutional violations?
         1. A review of § 1983 cases filed in 1975 and 1976 in the Central District of California found that of 276 non-prisoner cases filed, depositions were conducted in 56 cases and 17 cases went to trial. Theodore Eisenberg, Section 1983: Doctrinal Foundations and an Empirical Study, 67 CORNELL L. REV. 482, 550-53 (1982).  Of the 212 prisoner § 1983 claims filed in the same period, depositions were conducted in 5 cases and 3 cases proceeded to trial.  Id. at 554.
         2. An empirical study of prisoner § 1983 suits in five federal districts in 1975-1977 concluded:
            

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

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

         3. A third empirical study analyzed prisoner § 1983 cases filed in the Northern District of Illinois in 1971 and 1973. William S. Bailey, The Realities of Prisoners’ Cases Under 42 U.S.C. § 1983:  A Statistical Survey in the Northern District of Illinois, 6 LOY. U. CHI. L.J. 527 (1975).  Of the 218 cases filed in 1971, all but 22 were summarily dismissed.  Depositions were conducted in only nine cases and hearings were held in only seven.  Id. at 551.  Of the 173 cases filed in 1973, all but 36 were summarily dismissed.  Depositions were taken in 7 cases and hearings were held in 22.  Id. at 552.
         4. Another assessment of § 1983 and Bivens litigation focused on cases in the Central District of California in 1980 and 1981. The study concluded that “discovery events occur somewhat more often in nonprisoner constitutional tort cases” and that “[j]udges are somewhat more likely to have a pretrial conference or conduct a trial in a constitutional tort case.” Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 675 (1987).  The authors cautioned, however, that their conclusions were limited to a single district and suggested “that decision makers demand evidence to support assertions about constitutional tort cases, and that they not act in the empirical void that has dominated discussion to date.”  Id. at 695.
         5. The most recent empirical inquiry evaluated claims of constitutional violations filed against federal officials in five district courts between 2001 and 2003. Alex Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 STAN. L. REV. 809 (2010).  The study assumed that plaintiffs won not only in cases resolved by a favorable judgment, but also prevailed in cases disposed of by settlement, voluntary dismissal, and stipulated dismissal. Using this measure, the raw data revealed that plaintiffs succeeded in approximately 16% of the roughly 250 Bivens actions with final dispositions. However, for cases where the claims were not dismissed sua sponte and defendant filed a motion or answer, plaintiffs’ success rate rose to 30%.  Id. at 837-41. The study revealed the following as to the qualified immunity defense:
            

            [T]he data provide important information about the role that the qualified immunity defense plays in the outcome of Bivens cases…. Although defendants made arguments based on qualified immunity in some of the cases examined, the defense was a basis for a dismissal in only five out of the 244 complaints studied.  Dismissal on the merits, for frivolity, and for failure to exhaust administrative remedies were the most common grounds for terminating a case.  Dismissals for lack of subject matter jurisdiction were more common than dismissals on qualified immunity grounds.

            These data suggest that the qualified immunity defense is of minimal importance in regulating Bivens, at least as to filed cases. If the data are replicated elsewhere, it suggests that the doctrine of qualified immunity is of greater symbolic than practical importance.

            Id. at 843-44.  Prof. Reinert acknowledged that there were other possible explanations for the insignificant statistical role that the immunity defense played:

            [I]t is possible that the vast majority of Bivens cases involve disputes over well-established law, such that there are limited opportunities for defendants to raise qualified immunity as a defense.  It is also possible that immunity is operating in the background in those cases which are dismissed for being frivolous.  Relatedly, it may be that judges apply a modified doctrine of constitutional avoidance where there is a way of resolving cases without relying on qualified immunity.  Finally, and most troubling, it may be that the prospect of qualified immunity deters lawyers from accepting the most difficult Bivens cases, thus operating as an unseen thumb on the scale in favor of maintaining the legal status quo.

            Id. at 844.

      5. Was reconfiguration of the immunity standard necessary to meet the Court’s concerns?

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

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

      6. Does the procedure for adjudicating a claim of qualified immunity established by Harlow comport with usual practice under the Federal Rules of Civil Procedure? See 6 Pt. 2 J. MOORE, MOORE’S FEDERAL PRACTICE ¶ 56.15[5] (2d ed. 1976) (“The party opposing summary judgement must be given a reasonable opportunity to gain access to proof, particularly where the facts are largely within the knowledge or control of the moving party.”)
      7. Does the Harlow standard for the qualified immunity apply to actions against state and local officials under Section 1983?
         1. Harlow was a civil damages action for violation of constitutional rights against individual federal government officials. Section 1983 does not apply to federal officials, nor is there a statutory counterpart to Section 1983 which generally affords a civil damage remedy for the constitutional wrongs of federal officials. However, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court implied from the Constitution a cause of action for damages against individual federal officials.In Butz v. Economou, 438 U.S. 478 (1978), the Supreme Court was called upon to determine what immunities apply to the Bivens cause of action. As noted in footnote 30 of the Harlow opinion, the Butz Court held that federal officials sued in Bivens action should have the same immunity as their state counterparts sued under Section 1983.Four days after its Harlow opinion, the Supreme Court vacated and remanded a decision of the United States Court of Appeals for the Sixth Circuit in which two state parole officers had unsuccessfully asserted a qualified immunity defense.  The order of the Supreme Court, in pertinent part, reads as follows:
            

            [T]his cause is remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of Harlow v. Fitzgerald, 457 U.S. 800 [102 S. Ct. 2727, 73 L. Ed.2d 396] (1982).

            See Butz v. Economou, 438 U.S. [478] 504 [98 S. Ct. 2894, 2909, 57 L. Ed.2d 895] (1978) (deeming it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials”).

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

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

         2. Does the rationale of Butz v. Economou, cited in footnote 16 of Harlow, in fact dictate that the immunity as revised in Harlow must extend to individual state and local government officials sued under Section 1983?
            1. On what basis did the Court find that Congress incorporated a qualified immunity defense when it enacted Section 1983? See Pierson v. Ray, supra.  Is Harlow consistent with the origin of the qualified immunity defense?  In Anderson v. Creighton, 483 U.S. 635 (1987), a Bivens action arising out of a warrantless residence search, plaintiffs contended that the FBI officials who conducted the search could not assert a qualified immunity defense because officers conducting such searches were strictly liable at English common law.  Rejecting this argument as “procrustean,” Justice Scalia reasoned:
               

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

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

               As I have observed earlier, our treatment of qualified immunity under 42 U.S.C. § 1983 has not purported to be faithful to the common-law immunities that existed when § 1983 was enacted, and that the statute presumably intended to subsume. That is perhaps just as well.  The § 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier.  I refer, of course, to the holding of Monroe v. Pape, 365 U.S. 167 (1961), which converted an 1871 statute covering constitutional violations committed “under color of any statute, ordinance, regulation, custom or usage of any State,” into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law Monroe changed a statute that had generated only 21 cases in the first 50 years of its existence into one that pours into the federal courts tens of thousands of suits each year, and engages this Court in a losing struggle to prevent the Constitution from degenerating into a general tort law.

               Applying normal common-law rules to the statute that Monroe created would carry us further and further from what any sane Congress could have enacted.

               Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting).

            2. In Malley v. Briggs, 475 U.S. 335, 342 (1986), the Court refused to extend absolute prosecutorial immunity to a state police officer who was sued for allegedly presenting a judge with a complaint and supporting affidavit that failed to establish probable cause:
               

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

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

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

            3. In Ziglar v. Abassi, 528U.S. 120, 157-60 (2017), Justice Thomas wrote a concurring opinion “to note my growing concern with our qualified immunity jurisprudence”;
               

               Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.”  We have done so because “[c]ertain immunities were so well established in 1871 … that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Immunity is thus available under the statute if it was “historically accorded the relevant official” in an analogous situation “at common law,” unless the statute provides some reason to think that Congress did not preserve the defense.

               In some contexts, we have conducted the common-law inquiry that the statute requires.  For example, we have concluded that legislators and judges are absolutely immune from liability under § 1983 for their official acts because that immunity was well established at common law in 1871.  We have similarly looked to the common law in holding that a prosecutor is immune from suits relating to the “judicial phase of the criminal process,” although not from suits relating to the prosecutor’s advice to police officers.

               In developing immunity doctrine for other executive officers, we also started off by applying common-law rules.  In Pierson, we held that police officers are not absolutely immune from a § 1983 claim arising from an arrest made pursuant to an unconstitutional statute because the common law never granted arresting officers that sort of immunity.  Rather, we concluded that police officers could assert “the defense of good faith and probable cause” against the claim for an unconstitutional arrest because that defense was available against the analogous torts of “false arrest and imprisonment” at common law.

               In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute.  In the decisions following Pierson, we have “completely reformulated qualified immunity along principles not at all embodied in the common law.”  Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under § 1983, we instead grant immunity to any officer whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  We apply this “clearly established” standard “across the board” and without regard to “the precise nature of the various officials’ duties or the precise character of the particular rights alleged to have been violated.  We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine.

               Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act.  Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. We have acknowledged, in fact, that the “clearly established” standard is designed to “protec[t] the balance between vindication of constitutional rights and government officials’ effective performance of their duties.  The Constitution assigns this kind of balancing to Congress, not the Courts.

               In today’s decision, we continue down the path our precedents have marked.  We ask “whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted,” rather than whether officers in petitioners’ positions would have been accorded immunity at common law in 1871 from claims analogous to respondents.’  Even if we ultimately reach a conclusion consistent with the common-law rules prevailing in 1871, it is mere fortuity. Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress.  In an appropriate case, we should reconsider our qualified immunity jurisprudence.

         3. On June 4, 2020, 18 members of the House of Representatives introduced H.R. 7085, and on July 1, 2020, Senators Warren, Markey and Sanders introduced S. 4142, the Ending Qualified Immunity Act, both of which provided:
            

            SEC 2.  FINDINGS.

            The congress finds as follows:

            (1) In 1871, Congress passed the Ku Klux Klan Act to combat rampant violations of civil and constitutionally secured rights across the nation, particularly in the post-Civil war South.

            (2) Included in the act was a provision, now codified at section 1983 of title 42, United States Code, which provides a cause of action for individuals to file lawsuits against state and local officials who violate their legal and constitutionally secured rights.

            (3) Section 1983 has never included a defense or immunity for government officials who act in good faith when violating rights, nor has it ever had a defense or immunity based on whether the right was “clearly established” at the time of the violation.

            (4) From the law’s beginning in 1871, through the 1960s, government actors were not afforded qualified immunity for violating rights.

            (5) In 1967, the Supreme Court in Pierson v. Ray, 386 U.S. 547, suddenly found that government actors had a good faith defense for making arrests under unconstitutional statutes based on a common law defense for the tort of false arrest.

            (6) The Court later extended this beyond false arrests, turning it into a general good faith defense for government officials.

            (7) Finally, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the court found the subjective search for good faith in the government actor unnecessary and replaced it with an “objective reasonableness” standard that requires the right to be “clearly established” at the time of the violation for the defendant to be liable.

            (8) This doctrine of qualified immunity has severely limited the ability of many plaintiffs to recover damages under section 1983 when their rights have been violated by State and local officials.  As a result, the intent of Congress in passing the law has been frustrated, and Americans’ rights secured by the Constitution have not been appropriately protected.

            SEC 3.  SENSE OF THE CONGRESS.

            It is the sense of the Congress that we must correct the erroneous interpretation of section 1983 which provides for qualified immunity, and reiterate the standard found on the face of the statute, which does not limit liability on the basis of the defendant’s good faith beliefs or on the basis that the right was not “clearly established” at the time of the violation.

            SEC. 4.  REMOVAL OF QUALIFIED IMMUNITY.

            Section 1979 of the Revised Statutes (42 U.S.C. 1983) is amended by adding at the end the following:  “It shall not be a defense or immunity to any action brought under this section that the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when it was committed.  Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the Constitution or laws were not clearly established at the time of their deprivation by defendant, or that the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.”

      8. Does Harlow preclude any inquiry into the government official’s subjective intent when plaintiff must prove that intent to establish a constitutional violation?
         1. In Crawford-El v. Britton, 523 U.S. 574 (1998), an inmate filed a Section 1983 action alleging that prison officials had deliberately misdirected the transfer of his personal belongings and legal materials to punish the prisoner for exercising his First Amendment rights. The court of appeals adopted a special procedural rule for cases where the constitutionality of the defendant’s action turns on motive, designed to fulfill Harlow’s goal of protecting government officials from the burdens of litigation.  In order to facilitate pretrial disposition of such cases, defendant would be entitled to judgment unless plaintiff established the unconstitutional motive by clear and convincing evidence, rather than by a preponderance of the evidence.The Supreme Court reversed. The Court first explained that the court of appeals’ approach was not justified by either the holding or reasoning in Harlow:
            

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

            * * * * *

            There are several reasons why we believe that here, unlike Harlow, the proper balance [between vindicating constitutional guarantees and shielding officials from the social costs of litigation] does not justify a judicial revision of the law to bar claims that depend on proof of an official’s motive. . . . Under Wood, the mere allegation of intent to cause any “other injury,” not just a deprivation of constitutional rights, would have permitted an open-ended inquiry into subjective motivation.  When intent is an element of a constitutional violation, however, the primary focus is not an any possible animus directed at the plaintiff; rather, it is more specific, such as an intent to disadvantage all members of a class that includes the plaintiff, or to deter public comment on a specific issue of public importance. . . . [E]xisting law already prevents this more narrow element of unconstitutional motive from automatically carrying a plaintiff to trial.

            . . . First, there may be doubt as to the illegality of the defendant’s particular conduct, for instance whether a plaintiff’s speech was a matter of public concern. . . . Second, at least with certain types of claims, proof of an improper motive is not sufficient to establish a constitutional violation—there must also be evidence of causation. . . .  The reasoning in Harlow, like its specific holding, does not justify a rule that places a thumb on the defendant’s side of the scales when the merits of a claim that the defendant knowingly violated the law are being resolved.

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

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

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

         2. While the Supreme Court refused to heighten the burden of proof in unconstitutional motive Section 1983 cases, the Court did catalog the procedural mechanisms that could assist trial courts to dispose of baseless claims:
            

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

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

            Britton, 523 U.S. at 599-600.