Damages

CAREY v. PIPHUS, 435 U.S. 247 (1978).

Mr. Justice Powell delivered the opinion of the Court.

[1]In this case, brought under 42 U.S.C. § 1983, we consider the elements and prerequisites for recovery of damages by students who were suspended from public elementary and secondary schools without procedural due process. The Court of Appeals for the Seventh Circuit held that the students are entitled to recover substantial nonpunitive damages even if their suspensions were justified, and even if they do not prove that any other actual injury was caused by the denial of procedural due process. We disagree, and hold that in the absence of proof of actual injury, the students are entitled to recover only nominal damages.

I

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[2]We granted certiorari to consider whether, in an action under § 1983 for the deprivation of procedural due process, a plaintiff must prove that he actually was injured by the deprivation before he may recover substantial “nonpunitive” damages. 430 U.S. 964 (1977).

II

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

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

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

A

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

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

[8]The Members of the Congress that enacted § 1983 did not address directly the question of damages, but the principle that damages are designed to compensate persons for injuries caused by the deprivation of rights hardly could have been foreign to the many lawyers in Congress in 1871.^[1] Two other sections of the Civil Rights Act of 1871 appear to incorporate this principle, and no reason suggests itself for reading § 1983 differently.^[2] To the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages. See Imbler v. Pachtman, 424 U.S. at 442 (White, J., concurring in judgment).^[3]
B
[9]It is less difficult to conclude that damages awards under § 1983 should be governed by the principle of compensation than it is to apply this principle to concrete cases. But over the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well.^[4]
[10]It is not clear, however, that common-law tort rules of damages will provide a complete solution to the damages issue in every § 1983 case. In some cases, the interests protected by a particular branch of the common law of torts may parallel closely the interests protected by a particular constitutional right. In such cases, it may be appropriate to apply the tort rules of damages directly to the § 1983 action. In other cases, the interests protected by a particular constitutional right may not also be protected by an analogous branch of the common law of torts. In those cases, the task will be the more difficult one of adapting common-law rules of damages to provide fair compensation for injuries caused by the deprivation of a constitutional right.

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

C

[12]The Due Process Clause of the Fourteenth Amendment provides:

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

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

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

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

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

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

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

[19]Moreover, where a deprivation is justified but procedures are deficient, whatever distress a person feels may be attributable to the justified deprivation rather than to deficiencies in procedure. But as the Court of Appeals held, the injury caused by a justified deprivation, including distress, is not properly compensable under § 1983.^[5] This ambiguity in causation, which is absent in the case of defamation per se, provides additional need for requiring the plaintiff to convince the trier of fact that he actually suffered distress because of the denial of procedural due process itself.

[20]Finally, we foresee no particular difficulty in producing evidence that mental and emotional distress actually was caused by the denial of procedural due process itself. Distress is a personal injury familiar to the law, customarily proved by showing the nature and circumstances of the wrong and its effect on the plaintiff.^[6] In sum, then, although mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983, we hold that neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused.

D

[21]The Court of Appeals believed, and respondents urge, that cases dealing with awards of damages for racial discrimination, the denial of voting rights, and the denial of Fourth Amendment rights support a presumption of damages where procedural due process is denied. Many of the cases relied upon do not help respondents because they held or implied that some actual, if intangible, injury must be proved before compensatory damages may be recovered. Others simply did not address the issue.^[7] More importantly, the elements and prerequisites for recovery of damages appropriate to compensate injuries caused by the deprivation of one constitutional right are not necessarily appropriate to compensate injuries caused by the deprivation of another. As we have said, supra at 258-259, these issues must be considered with reference to the nature of the interests protected by the particular constitutional right in question. For this reason, and without intimating an opinion as to their merits, we do not deem the cases relied upon to be controlling.

III

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

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

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

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

It is so ordered.

Mr. Justice Marshall concurs in the result.

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

Carey v. Piphus – Audio and Transcript of Oral Argument

Footnotes

1. See 1 F. HILLIARD, LAW OF TORTS, ch. 3, § 5 (3d ed. 1866); T. SEDGWICK, MEASURE OF DAMAGES 25-35 (5th ed. 1869). Thus, one proponent of § 1 of the Civil Rights Act of 1871 asked during debate: “[W]hat legislation could be more appropriate than to give a person injured by another under color of … State laws a remedy by civil action?” Cong. Globe, 42d Cong., 1st Sess., 482 (1871) (remarks of Rep. Wilson). And one opponent of § 1 complained: “The deprivation may be of the slightest conceivable character, the damages in the estimation of any sensible man may not be five dollars or even five cents; they may be what lawyers call merely nominal damages; and yet by this section jurisdiction of that civil action is given to the Federal courts instead of its being prosecuted as now in the courts of the States.” Id. at App. 216 (remarks of Sen. Thurman). See also Nahmod, Section 1983 and the “Background” of Tort Liability, 50 IND. L.J. 5, 10 (1974). ↵

    

2. Section 2 of the Act, 17 Stat. 13-14, now codified at 42 U.S.C. § 1985(3), made it unlawful to conspire, inter alia, “for the purpose of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws.” It further provided (emphasis supplied):

   “[I]f any one or more persons engaged in any such conspiracy shall do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby any person shall be injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the person so injured or deprived of such rights and privileges may have and maintain an action for the recovery of damages occasioned by such injury or deprivation of rights and privileges against any one or more of the persons engaged in such conspiracy”

   Section 6 of the Act, 17 Stat. 15, now codified at 42 U.S.C. § 1986, provided (emphasis supplied): “[A]ny person or persons, having knowledge that any of the wrongs conspired to be done and mentioned in the second section of this act are about to be committed, and having power to prevent or aid in preventing the same, shall neglect or refuse to do so, and such wrongful act shall be committed, such person or persons shall be liable to the person injured, or his legal representatives, for all damages caused by any such wrongful act.” ↵

    

3. This is not to say that exemplary or punitive damages might not be awarded in a proper case under § 1983 with the specific purpose of deterring or punishing violations of constitutional rights. See, e.g., Silver v. Cormier, 529 F.2d 161, 163-164 (CA10 1976); Stengel v. Belcher, 522 F.2d 438, 444 n.4 (CA6 1975), cert. dismissed, 429 U.S. 118 (1976); Spence v. Staras, 507 F.2d 554, 558 (CA7 1974); Caperci v. Huntoon, 397 F.2d 799, 801 (CA1), cert. denied, 393 U.S. 940 (1968); Mansell v. Saunders, 372 F.2d 573, 576 (CA5 1967); Basista v. Weir, 340 F.2d 74, 84-88 (CA3 1965). Although we imply no approval or disapproval of any of these cases, we note that there is no basis for such an award in this case. The District Court specifically found that petitioners did not act with a malicious intention to deprive respondents of their rights or to do them other injury, see n.6, supra, and the Court of Appeals approved only the award of “non-punitive” damages, 545 F.2d 30, 31 (1976).

   We also note that the potential liability of § 1983 defendants for attorney’s fees, see Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. 94-559, 90 Stat. 2641, amending 42 U.S.C. § 1988, provides additional and by no means inconsequential assurance that agents of the State will not deliberately ignore due process rights. See also 18 U.S.C. § 242, the criminal counterpart of § 1983. ↵

    

4. The Court has looked to the common law of torts in similar fashion in constructing immunities under § 1983. See Imbler v. Pachtman, 424 U.S. 409, 417-419 (1976), and cases there discussed. Title 42 U.S.C. § 1988 authorizes courts to look to the common law of the States where this is “necessary to furnish suitable remedies” under § 1983. ↵

    

5. In this case, for example, respondents denied the allegations against them. They may well have been distressed that their denials were not believed. They might have been equally distressed if they had been disbelieved only after a full-dress hearing, but in that instance they would have no cause of action against petitioners. ↵

    

6. We use the term “distress” to include mental suffering or emotional anguish. Although essentially subjective, genuine injury in this respect may be evidenced by one’s conduct and observed by others. Juries must be guided by appropriate instructions, and an award of damages must be supported by competent evidence concerning the injury. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974). ↵

    

7. In Jeanty v. McKey & Poague, Inc., 496 F.2d 1119 (CA7 1974) and Seaton v. Sky Realty Co., 491 F.2d 634 (CA7 1974), cited in Hostrop, supra, at 579, the court held that damages may be awarded for humiliation and distress caused by discriminatory refusals to lease housing to plaintiffs. The court’s comment in Seaton that “[h]umiliation can be inferred from the circumstances as well as established by the testimony,” 491 F.2d, at 636, suggests that the court considered the question of actual injury to be one of fact. See generally Annot., Recovery of Damages for Emotional Distress Resulting from Racial, Ethnic, or Religious Abuse or Discrimination, 40 A.L.R.3d 1290 (1971).

   In Basista v. Weir, 340 F.2d 74 (CA3 1965); Sexton v. Gibbs, 327 F. Supp. 134 (N.D. Tex. 1970), aff’d, 446 F.2d 904 (CA5 1971), cert. denied, 404 U.S. 1062 (1972); and Rhoads v. Horvat, 270 F. Supp. 307 (Colo. 1967), cited in Hostrop, supra at 579, the courts indicated that damages may be awarded for humiliation and distress caused by unlawful arrests, searches, and seizures. In Basista v. Weir, the court held that nominal damages could be awarded for an illegal arrest even if compensatory damages were waived; and that such nominal damages would, in an appropriate case, support an award of punitive damages. 340 F.2d, at 87-88. Because it was unclear whether the plaintiff had waived his claim for compensatory damages, that issue was left open upon remand. Id., at 88. In Sexton v. Gibbs, where the court found “that Plaintiff suffered humiliation, embarrassment and discomfort,” substantial compensatory damages were awarded. 327 F. Supp. at 143. In Rhoads v. Horvat, the court allowed a jury award of $5,000 in compensatory damages for an illegal arrest to stand, stating that it did “not doubt that the plaintiff was outraged by the arrest.” 270 F. Supp. at 311.

   Wayne v. Venable, 260 F. 64 (CA8 1919), cited in Hostrop, supra, at 579, and Ashby v. White, 1 Bro. P.C. 62, 1 Eng. Rep. 417 (H.L. 1703), rev’g 2 Ld. Raym. 938, 92 Eng. Rep. 126 (K.B. 1703), do appear to support the award of substantial damages simply upon a showing that a plaintiff was wrongfully deprived of the right to vote. Citing Ashby v. White, this Court has held that actions for damages may be maintained for wrongful deprivations of the right to vote, but it has not considered the prerequisites for recovery. Nixon v. Herndon, 273 U.S. 536, 540 (1927); see also Smith v. Allwright, 321 U.S. 649 (1944); Coleman v. Miller, 307 U.S. 433, 469 (1939) (opinion of Frankfurter, J.); Nixon v. Condon, 286 U.S. 73 (1932); Myers v. Anderson, 238 U.S. 368 (1915); Giles v. Harris, 189 U.S. 475 (1903); Swafford v. Templeton, 185 U.S. 487 (1902); Wiley v. Sinkler, 179 U.S. 58 (1900). The commonlaw rule of damages for wrongful deprivations of voting rights embodied in Ashby v. White would, of course, be quite relevant to the analogous question under § 1983. ↵

Notes on Carey v. Piphus

1. Can the Carey approach to the measure of damages be reconciled with Justice Harlan’s view in Monroe v. Pape that Section 1983 “becomes more than a jurisdictional provision only if one attributes to the enacting legislature the view that a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy?”
2. In Robertson v. Wegmann, 346 U.S. 584 (1991), Clay Shaw lodged a Section 1983 damage action alleging that the government prosecuted him in bad faith for allegedly having participated in a conspiracy to assassinate President John F. Kennedy. When Shaw died before trial, defendants moved to dismiss the action on the ground that the cause of action abated under the applicable Louisiana statute. According to the Louisiana survivorship statute, Shaw’s action would survive only in favor of a spouse, children, parents or sibling. No person having such a relationship with Shaw was alive at the time of his death.The Supreme Court granted certiorari to consider whether the Louisiana statute abating the Section 1983 claim controlled or whether the trial court was at liberty to create a federal common rule permitting the action to survive. The Court found the resolution of the issue to turn on 42 U.S.C. § 1988, which provides in pertinent part:
   

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

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

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

   * * * * *

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

   * * * * *

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

   * * * * *

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

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

3. Under Carey and Robertson, do state statutes that limit the amount of damages recoverable in death cases apply to Section 1983 actions?
   1. In City of Tarrant v. Jefferson, 682 So.2d 29 (Ala. 1996), Melvin Jefferson sued under Section 1983 claiming that city firefighters, in furtherance of a policy of denying fire protection to minorities, purposefully refused to attempt to rescue and revive his mother, Alberta. The city moved for judgment on the pleadings, arguing that a) under the Alabama Wrongful Death Act, punitive but not compensatory damages are recoverable, and b) punitive damages, the only remedy available under the Alabama statute, may not be awarded against local governmental entities under Section 1983.
      The Alabama Supreme Court rejected plaintiff’s assertion that application of the state Wrongful Death Act to Section 1983 actions against municipalities is inconsistent with the Constitution and laws of the United States and must be disregarded in favor of a federal common law rule permitting a claim for compensatory damages. The Court reasoned that rather than unduly restrict the federal claim, the Alabama statute supplies a remedy—punitive damages—which exceeds the relief available against a local governmental entity under federal law. Even though the Supreme Court of the United States holds that punitive damages are not recoverable under Section 1983, the Alabama Supreme Court concluded that “‘the application of state law … does not, in substance, abrogate plaintiff’s remedy against the city for violations of § 1983, but rather expands the recovery.’” City of Tarrant, 682 So.2d at 30.The United States Supreme Court accepted the case for review but then dismissed its grant of certiorari for want of jurisdiction. Jefferson v. City of Tarrant, 522 U.S. 75 (1997)
   2. In Berry v. City of Muskogee, 900 F.2d 1489 (10^th Cir. 1990), the court of appeals held that Oklahoma survival and wrongful death acts did not govern a Section 1983 damages claim arising out of the murder of Mark Berry by fellow prisoners at the Muskogee City-Federal Jail.
      

      Applying the principles set out in § 1988 for borrowing law from another source, we are satisfied that the Oklahoma survival action alone does not meet the stated criteria. As applied to the instant case, it would provide extraordinarily limited recovery, possibly only damages for property loss, of which there were none, and loss of decedent’s earnings between the time of injury and death, of which there also were none. Thus, the Oklahoma survival action is clearly deficient in both its remedy and deterrent effect.

      The more difficult question is whether the Oklahoma law on survival actions, as supplemented by Oklahoma’s wrongful death statute [which provided damages for pain and suffering, lost earnings, funeral and burial expenses and punitive damages], sufficiently meets the §1988 criteria to satisfy the test for borrowing state law.

      * * * * *

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

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

      * * * * *

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

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

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

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

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

         * * * * *

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

         * * * * *

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

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

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

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

         * * * * *

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

         * * * * *

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

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

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

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

         * * * * *

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

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

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

MEMPHIS COMMUNITY SCHOOL DISTRICT v. STACHURA, 477 U.S. 299 (1986).

Justice Powell delivered the opinion of the Court.

[1]This case requires us to decide whether 42 U.S.C. § 1983 authorizes an award of compensatory damages based on the factfinder’s assessment of the value or importance of a substantive constitutional right.

I

[2]Respondent Edward Stachura is a tenured teacher in the Memphis, Michigan, public schools. When the events that led to this case occurred, respondent taught seventh-grade life science, using a textbook that had been approved by the School Board. The textbook included a chapter on human reproduction. During the 1978-1979 school year, respondent spent six weeks on this chapter. As part of their instruction, students were shown pictures of respondent’s wife during her pregnancy. Respondent also showed the students two films concerning human growth and sexuality. These films were provided by the County Health Department, and the Principal of respondent’s school had approved their use. Both films had been shown in past school years without incident.

[3]After the showing of the pictures and the films, a number of parents complained to school officials about respondent’s teaching methods. These complaints, which appear to have been based largely on inaccurate rumors about the allegedly sexually explicit nature of the pictures and films, were discussed at an open School Board meeting held on April 23, 1979. Following the advice of the School Superintendent, respondent did not attend the meeting, during which a number of parents expressed the view that respondent should not be allowed to teach in the Memphis school system. The day after the meeting, respondent was suspended with pay. The School Board later confirmed the suspension, and notified respondent that an “administration evaluation” of his teaching methods was underway. No such evaluation was ever made. Respondent was reinstated the next fall, after filing this lawsuit.

[4]Respondent sued the School District, the Board of Education, various Board members and school administrators, and two parents who had participated in the April 23 School Board meeting. The complaint alleged that respondent’s suspension deprived him of both liberty and property without due process of law and violated his First Amendment right to academic freedom. Respondent sought compensatory and punitive damages under 42 U.S.C. § 1983 for these constitutional violations.

At the close of trial on these claims, the District Court instructed the jury as to the law governing the asserted bases for liability. Turning to damages, the court instructed the jury that on finding liability it should award a sufficient amount to compensate respondent for the injury caused by petitioners’ unlawful actions:

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

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

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

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

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

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

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

II

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

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

III

A

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

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

* * * * *

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

[14]Respondent nevertheless argues that Carey does not control here, because in this case a substantive constitutional right—respondent’s First Amendment right to academic freedom—was infringed. The argument misperceives our analysis in Carey. That case does not establish a two-tiered system of constitutional rights, with substantive rights afforded greater protection than “mere” procedural safeguards. We did acknowledge in Carey that “the elements and prerequisites for recovery of damages” might vary depending on the interests protected by the constitutional right at issue. Id. at 264-265. But we emphasized that, whatever the constitutional basis for § 1983 liability, such damages must always be designed “to compensate injuries caused by the [constitutional] deprivation.” Id. at 265 (emphasis added).^[8] See also Hobson v. Wilson, 237 U.S. App. D.C. 219, 277-279, 737 F.2d 1, 59-61 (1984), cert. denied, 470 U.S. 1084 (1985); cf. Smith v. Wade, 461 U.S. 30 (1983). That conclusion simply leaves no room for noncompensatory damages measured by the jury’s perception of the abstract “importance” of a constitutional right.

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

B

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

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

* * * * *

Justice Brennan and Justice Stevens join the opinion of the Court and also join Justice Marshall’s opinion concurring in the judgment.

Justice Marshall, with whom Justice Brennan, Justice Blackmun, and Justice Stevens join, concurring in the judgment.

[18]I agree with the Court that this case must be remanded for a new trial on damages. Certain portions of the Court’s opinion, however, can be read to suggest that damages in § 1983 cases are necessarily limited to “out-of-pocket loss,” “other monetary harms,” and “such injuries as ‘impairment of reputation …, personal humiliation, and mental anguish and suffering.'” See ante, at 307. I do not understand the Court so to hold, and I write separately to emphasize that the violation of a constitutional right, in proper cases, may itself constitute a compensable injury.

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

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

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

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

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

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

Memphis Community School District v. Stachura – Audio and Transcript of Oral Argument

Footnotes

8. Carey recognized that “the task … of adapting common-law rules of damages to provide fair compensation for injuries caused by the deprivation of a constitutional right” is one “of some delicacy.” Id. at 258. We also noted that “the elements and prerequisites for recovery of damages appropriate to compensate injuries caused by the deprivation of one constitutional right are not necessarily appropriate to compensate injuries caused by the deprivation of another.” Id. at 264-265. See also Hobson v. Wilson, 237 U.S. App. D.C. at 279-281, 737 F.2d at 61-63. This “delicate” task need not be undertaken here. None of the parties challenges the portion of the jury instructions that permitted recovery for actual harm to respondent, and the instructions that are challenged simply do not authorize compensation for injury. We therefore hold only that damages based on the “value” or “importance” of constitutional rights are not authorized by § 1983, because they are not truly compensatory. ↵

Notes on Memphis Community School District v. Stachura

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

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

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

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

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

   * * * * *

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

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

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

3. Does Stachura bar courts in Section 1983 actions from ever permitting the jury to presume damages from the constitutional violation? See Walje v. City of Winchester, 827 F.2d 10, 13 (6^th Cir. 1987) (“[G]eneral damages may be appropriate [for violation of plaintiff’s First Amendment rights] because injury was likely to have occurred, but the specific elements of the damage were difficult to pinpoint because of the nature of the injury…. [T]his form of general damage award is commonly granted in actions for common law speech torts. The Stachura Court admonished us that … it is proper to look to common law tort principles in granting presumed damages in cases where specific damages are difficult to establish.”); 18 U.S.C. § 2520 (damages for interception or disclosure of wire, oral or electronic communication in violation of federal statute are the greater of a) actual damages suffered by the plaintiff and any profits made by violator, or b) statutory damages of whichever is the greater of $100 a day for each day of the violation, or $10,000).
4. Is the jury in a Section 1983 action always entitled to award only nominal damages to the plaintiff if the jury finds a violation of the Constitution? In Westcott v. Crinklaw, 133 F.3d 658 (8^th Cir. 1998), Vivian Westcott filed a Section 1983 action seeking damages after an Omaha police officer shot her husband to death during an attempted burglary. The trial judge instructed the jury, “If you find for the plaintiff, but find that the loss resulting from Arden Westcott’s death has no monetary value, then you must return a verdict for the plaintiff in the nominal amount of $1.00.” Id. at 661 n.4. The jury returned a verdict for Westcott but awarded only one dollar in damages.The court of appeals reversed, finding that the trial judge erred when it gave the nominal damages instruction:
   

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

   * * * * *

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

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

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

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

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

      Harris, 190 F. 3d at 1286.  Having found that because of the absence of physical injury Wade could not recover damages in a Section 1983 action for the mental or emotional injuries caused by the violation of his constitutional rights, the court next addressed whether the PLRA was constitutional:

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

      * * * * *

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

      * * * * *

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

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

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

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

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

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

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

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

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

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

SMITH v. WADE, 461 U.S. 30 (1983).

Justice Brennan delivered the opinion of the Court.

[1]We granted certiorari in this case, 456 U.S. 924 (1982), to decide whether the District Court for the Western District of Missouri applied the correct legal standard in instructing the jury that it might award punitive damages under 42 U.S.C. § 1983 (1976 ed., Supp. V). The Court of Appeals for the Eighth Circuit sustained the award of punitive damages. Wade v. Haynes, 663 F.2d 778 (1981). We affirm.

I

[2]The petitioner, William H. Smith, is a guard at Algoa Reformatory, a unit of the Missouri Division of Corrections for youthful first offenders. The respondent, Daniel R. Wade, was assigned to Algoa as an inmate in 1976. In the summer of 1976 Wade voluntarily checked into Algoa’s protective custody unit. Because of disciplinary violations during his stay in protective custody, Wade was given a short term in punitive segregation and then transferred to administrative segregation. On the evening of Wade’s first day in administrative segregation, he was placed in a cell with another inmate. Later, when Smith came on duty in Wade’s dormitory, he placed a third inmate in Wade’s cell. According to Wade’s testimony, his cellmates harassed, beat, and sexually assaulted him.

[3]Wade brought suit under 42 U.S.C. § 1983 against Smith and four other guards and correctional officials, alleging that his Eighth Amendment rights had been violated. At trial his evidence showed that he had placed himself in protective custody because of prior incidents of violence against him by other inmates. The third prisoner whom Smith added to the cell had been placed in administrative segregation for fighting. Smith had made no effort to find out whether another cell was available; in fact there was another cell in the same dormitory with only one occupant. Further, only a few weeks earlier, another inmate had been beaten to death in the same dormitory during the same shift, while Smith had been on duty. Wade asserted that Smith and the other defendants knew or should have known that an assault against him was likely under the circumstances.

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

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

* * * * *

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

* * * * *

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

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

II

[8]Section 1983 is derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13. It was intended to create “a species of tort liability” in favor of persons deprived of federally secured rights. Carey v. Piphus, 435 U.S. 247, 253 (1978); Imbler v. Pachtman, 424 U.S. 409, 417 (1976). We noted in Carey that there was little in the section’s legislative history concerning the damages recoverable for this tort liability, 435 U.S. at 255. In the absence of more specific guidance, we looked first to the common law of torts (both modern and as of 1871), with such modification or adaptation as might be necessary to carry out the purpose and policy of the statute. Id. at 253-264. We have done the same in other contexts arising under § 1983, especially the recurring problem of common-law immunities.^[9]

[9]Smith correctly concedes that “punitive damages are available in a ‘proper’ § 1983 action….” Carlson v. Green, 446 U.S. 14, 22 (1980); Brief for Petitioner 8. Although there was debate about the theoretical correctness of the punitive damages doctrine in the latter part of the last century, the doctrine was accepted as settled law by nearly all state and federal courts, including this Court. It was likewise generally established that individual public officers were liable for punitive damages for their misconduct on the same basis as other individual defendants. See also Scott v. Donald, 165 U.S. 58, 77-89 (1897) (punitive damages for constitutional tort). Further, although the precise issue of the availability of punitive damages under § 1983 has never come squarely before us, we have had occasion more than once to make clear our view that they are available; indeed, we have rested decisions on related questions on the premise of such availability.^[10]

[10]Smith argues, nonetheless, that this was not a “proper”case in which to award punitive damages. More particularly, he attacks the instruction that punitive damages could be awarded on a finding of reckless or callous disregard of or indifference to Wade’s rights or safety. Instead, he contends that the proper test is one of actual malicious intent—”ill will, spite, or intent to injure.”^[11] Brief for Petitioner 9. He offers two arguments for this position: first, that actual intent is the proper standard for punitive damages in all cases under § 1983; and second, that even if intent is not always required, it should be required here because the threshold for punitive damages should always be higher than that for liability in the first instance. We address these in turn.

III

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

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

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

* * * * *

254, 280 (1964).

We note in passing that it appears quite uncertain whether even Justice Rehnquist’s dissent ultimately agrees with Smith’s view that “ill will, spite, or intent to injure” should be required to allow punitive damages awards. Justice Rehnquist consistently confuses, and attempts to blend together, the quite distinct concepts of intent to cause injury, on one hand, and subjective consciousness of risk of injury (or of unlawfulness) on the other. For instance, his dissent purports to base its analysis on the “fundamental distinction” between “wrongful motive, actual intention to inflict harm or intentional doing of an act known to be unlawful,” versus “very careless or negligent conduct,” post at 60-61 (emphasis added). Yet in the same paragraph, the dissent inaccurately recharacterizes the first element of this distinction as “acts that are intentionally harmful,” requiring “inquiry into the actor’s subjective motive and purpose.” Post at 63-64. Consciousness of consequences or of wrongdoing, of course, does not require injurious intent or motive; it is equally consistent with indifference toward or disregard for consequences. This confusion of standards continues throughout the opinion. Justice Rehnquist’s dissent frequently uses such phrases as “intent to injure” or “evil motive”; yet at several points it refers more broadly to “subjective mental state” or like phrases, and expressly includes consciousness (as opposed to intent) in its reasoning. Post at 63, n.3, 71-72, n.7, 72-73. More telling, perhaps, is its citation of cases and treatises, which frequently and consistently includes authority supporting (at most) a consciousness requirement rather than the “actual intent” standard for which the opinion purports to argue elsewhere. See, e. g., post at 76-77, n.10, 78-84, n.12.

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

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

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

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

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

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

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

IV

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

* * * * *

[22]This argument incorrectly assumes that, simply because the instructions specified the same threshold of liability for punitive and compensatory damages, the two forms of damages were equally available to the plaintiff. The argument overlooks a key feature of punitive damages—that they are never awarded as of right, no matter how egregious the defendant’s conduct. “If the plaintiff proves sufficiently serious misconduct on the defendant’s part, the question whether to award punitive damages is left to the jury, which may or may not make such an award.” D. DOBBS, LAW OF REMEDIES 204 (1973) (footnote omitted). Compensatory damages, by contrast, are mandatory; once liability is found, the jury is required to award compensatory damages in an amount appropriate to compensate the plaintiff for his loss. Hence, it is not entirely accurate to say that punitive and compensatory damages were awarded in this case on the same standard. To make its punitive award, the jury was required to find not only that Smith’s conduct met the recklessness threshold (a question of ultimate fact), but also that his conduct merited a punitive award of $5,000 in addition to the compensatory award (a discretionary moral judgment).

[23]Moreover, the rules of ordinary tort law are once more against Smith’s argument. There has never been any general common-law rule that the threshold for punitive damages must always be higher than that for compensatory liability.

* * * * *

[24]This common-law rule makes sense in terms of the purposes of punitive damages. Punitive damages are awarded in the jury’s discretion “to punish [the defendant] for his outrageous conduct and to deter him and others like him from similar conduct in the future.” Restatement (Second) of Torts § 908(1) (1979). The focus is on the character of the tortfeasor’s conduct—whether it is of the sort that calls for deterrence and punishment over and above that provided by compensatory awards. If it is of such a character, then it is appropriate to allow a jury to assess punitive damages; and that assessment does not become less appropriate simply because the plaintiff in the case faces a more demanding standard of actionability. To put it differently, society has an interest in deterring and punishing all intentional or reckless invasions of the rights of others, even though it sometimes chooses not to impose any liability for lesser degrees of fault.^[13]

[25]As with his first argument, Smith gives us no good reason to depart from the common-law rule in the context of § 1983. He argues that too low a standard of exposure to punitive damages in cases such as this threatens to undermine the policies of his qualified immunity as a prison guard. The same reasoning would apply with at least as much force to, for example, the First Amendment and common-law immunities involved in the defamation cases described above. In any case, Smith overstates the extent of his immunity. Smith is protected from liability for mere negligence because of the need to protect his use of discretion in his day-to-day decisions in the running of a correctional facility. See generally Procunier v. Navarette, 434 U.S. 555 (1978); Wood v. Strickland, 420 U.S. 308 (1975). But the immunity on which Smith relies is coextensive with the interest it protects.^[14] The very fact that the privilege is qualified reflects a recognition that there is no societal interest in protecting those uses of a prison guard’s discretion that amount to reckless or callous indifference to the rights and safety of the prisoners in his charge. Once the protected sphere of privilege is exceeded, we see no reason why state officers should not be liable for their reckless misconduct on the same basis as private tortfeasors.^[15]

* * * * *

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

* * * * *

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

* * * * *

II

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

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

* * * * *

III

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

* * * * *

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

* * * * *

IV

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

* * * * *

[32]Plainly, the statutory language itself provides absolutely no support for the cause of action for punitive damages that the Court reads into the provision. Indeed, it merely creates “[liability] to the party injured … for redress.” “Redress” means “[reparation] of, satisfaction or compensation for, a wrong sustained or the loss resulting from this.” 8 OXFORD ENGLISH DICTIONARY 310 (1933). And, as the Court concedes, punitive damages are not “reparation” or “compensation”; their very purpose is to punish, not to compensate. If Congress meant to create a right to recover punitive damages, then it chose singularly inappropriate words: both the reference to injured parties and to redress suggests compensation, and not punishment.

[33]Other statutes roughly contemporaneous with § 1983 illustrate that if Congress wanted to subject persons to a punitive damages remedy, it did so explicitly.

* * * * *

[34]In the light of the foregoing indications, it is accurate to say that the foundation upon which the right to punitive damages under § 1983 rests is precarious, at the best. Given the extraordinary diffidence and obliqueness with which the right was granted—if it was—it seems more than a little unusual to read that grant as incorporating the most expansive of the available views as to the standard for punitive damages. Given the legislative ambiguity, the sensible approach to the problem would be an honest recognition that, if we are to infer a right to punitive damages, it should be a restrained one, reflecting the Legislature’s approach in creating the right. And surely, the right ought to be limited by the view of punitive damages that the Members of the 42d Congress would have had—not by what some state courts have done a century later.

* * * * *

V

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

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

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

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

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

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

I dissent.

Justice O’Connor, dissenting.

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

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

Smith v. Wade – Audio and Transcript of Oral Argument

Footnotes

9. Justice Rehnquist’s dissent faults us for referring to modern tort decisions in construing § 1983. Its argument rests on the unstated and unsupported premise that Congress necessarily intended to freeze into permanent law whatever principles were current in 1871, rather than to incorporate applicable general legal principles as they evolve. Post, at 65-68; see also post, at 92-93 (O’Connor, J., dissenting). The dissents are correct, of course, that when the language of the section and its legislative history provide no clear answer, we have found useful guidance in the law prevailing at the time when § 1983 was enacted; but it does not follow that that law is absolutely controlling, or that current law is irrelevant. On the contrary, if the prevailing view on some point of general tort law had changed substantially in the intervening century (which is not the case here), we might be highly reluctant to assume that Congress intended to perpetuate a now-obsolete doctrine. See Carey v. Piphus, 435 U.S. 247, 257-258 (1978) (“[Over] the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well”) (footnote omitted); Adickes v. S. H. Kress & Co., 398 U.S. 144, 231-232 (1970) (Brennan, J., concurring and dissenting); Pierson, supra, at 555 (citing modern authority for “the prevailing view in this country”); Wood, supra, at 318-319, and n.9; Tenney, supra, at 375, and n.5. Indeed, in Imbler we recognized a common-law immunity that first came into existence 25 years after § 1983 was enacted, 424 U.S. at 421-422. Under the dissents’ view, Imbler was wrongly decided. ↵

    

10. Newport v. Fact Concerts, Inc., supra, for example, we held that a municipality (as opposed to an individual defendant) is immune from liability for punitive damages under § 1983. A significant part of our reasoning was that deterrence of constitutional violations would be adequately accomplished by allowing punitive damages awards directly against the responsible individuals:

    * * * * *

    Similarly, in Carlson v. Green, 446 U.S. 14 (1980), we stated that punitive damages would be available in an action against federal officials directly under the Eighth Amendment, partly on the reasoning that since such damages are available under § 1983, it would be anomalous to allow punitive awards against state officers but not federal ones. Id. at 22, and n.9. See also Adickes v. S.H. Kress & Co., supra, at 233 (Brennan, J., concurring and dissenting); Carey v. Piphus, supra, at 257, n.11; Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460 (1975) (punitive damages available under 42 U.S.C. § 1981). ↵

     

11. Smith uses the term “actual malice” to refer to the standard he would apply. While the term may be an appropriate one, we prefer not to use it, simply to avoid the confusion and ambiguity that surrounds the word “malice.” See n.8, infra. Indeed, as Smith recognizes, this Court has used the very term “actual malice” in the defamation context to refer to a recklessness standard. Brief for Petitioner 8-9; see Cantrell v. Forest City Publishing Co., 419 U.S. 245, 251-252 (1974); New York Times Co. v. Sullivan, 376 U.S. ↵

     

12. Justice Rehnquist’s assertion that a “solid majority of jurisdictions” required actual malicious intent, post at 84, is simply untrue. In fact, there were fairly few jurisdictions that imposed such a requirement, and fewer yet that adhered to it consistently. Justice Rehnquist’s attempt to establish this proposition with case citations, post at 78-84, n.12, does not offer him substantial support. Because the point is not of controlling significance, see n.2, supra, we will not tarry here to analyze his citations case-by-case or State-by-State, but will only summarize the main themes. ↵

     

13. “Moreover, after Carey punitive damages may be the only significant remedy available in some § 1983 actions where constitutional rights are maliciously violated but the victim cannot prove compensable injury.” Carlson, 446 U.S. at 22, n.9. ↵

     

14. As we noted supra, at 33-34, Smith does not challenge the instruction on qualified immunity. We therefore assume for purposes of this case that the instruction was correct. See generally, e.g., Procunier v. Navarette, 434 U.S. 555 (1978). ↵

     

15. We reject Justice Rehnquist’s argument, post, at 92, that it somehow makes a difference that this suit was brought in federal court—as though it were inappropriate or unseemly that federal courts dare to enforce federal rights vigorously. Indeed, one wonders whether Justice Rehnquist would complain as loudly if this § 1983 suit had been brought in state court, as it could have been. Although Justice Rehnquist casts his argument as an attack on meddling by federal courts, the true thrust of his complaint seems to be against federal law—i.e., the Civil Rights Act of 1871. We have explained at length why we think that the policies of that statute call for our holding today. ↵

Notes on Smith v. Wade

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

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

   * * * * *

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

   * * * * *

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

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

   Kolstad, 527 U.S. at 535-37.

2. Where the standard of culpability necessary to prove a violation of the Constitution is intent or recklessness, does proof of the deprivation of a constitutional right likewise discharge the burden of proof necessary to an award of punitive damages? See Iacobucci v. Boulter, 193 F.3d 14, 26 (1^st Cir. 1999) (“We realize that the district court instructed the jury to determine whether Boulter had acted intentionally or recklessly in arresting Iacobucci, and that the jury … found that Boulter’s conduct fit that proscribed category. This mens rea finding, however, does not clear the way for punitive damages. The state of mind required to make out a cognizable section 1983 claim (at least one grounded in false arrest) differs importantly from that required to justify punitive damages. The former requirement relates only to the conduct, not to the consequences; that is, it entails an intent to do the act, not to effect a civil rights violation.”); Hernandez-Tirado v. Artau, 874 F.2d 866, 870 (1^st Cir. 1989) (“Although Artou’s dismissal of Hernandez was an “intentional” tort, the dismissal was negligent in respect to the existence of a federally protected right. This ‘negligence’ is sufficient for purposes of liability for damages…. Artau should have known that his conduct was wrongful; but in the context of conduct that is not, on its face, obviously wrongful, that is insufficient to justify the punitive damages award.”).
3. Will a finding that defendant does not have qualified immunity satisfy the reckless indifference precondition to punitive damages? See Iacobucci v. Boulter, 193 F.3d 14, 26 n.8 (1^st Cir. 1999) (“In assaying qualified immunity, we inquired into whether Boulter’s presumed belief that probable cause existed was objectively reasonable. The focus of punitive damages, however, is subjective.”); Soderbeck v. Burnett County, Wis., 752 F.2d 285, 290-92 (7^th Cir. 1985) (Punitive damages are not recoverable, even where reasonable official should have known that conduct violated Constitution and thus is not immune from compensatory damages, unless defendant actually knew actions were forbidden. However, it is not necessary that defendant knew that his conduct violated federal Constitution so long as he knew it violated some law). Under the trial court’s charge in Smith, if the jury found Smith violated the Eighth Amendment and was not immune, could the jury have found that plaintiff did not prove reckless indifference necessary to qualify for punitive damages?
4. May punitive damages be awarded if the jury does not give the plaintiff compensatory damages? See Davis v. Locke, 936 F.2d 1208, 1214 (11^th Cir. 1991)(“In this circuit, ‘punitive damages may be awarded in a § 1983 action even without actual loss.’”); Erwin v. County of Manitowoc, 872 F.2d 1292, 1299 (7^th Cir. 1989) (“Although state law may not allow punitive damages without a compensatory award, under federal law, when a jury finds a constitutional violation under a § 1983 claim, it may award punitive damages even when it does not award compensatory damages.”). If the jury awards nominal damages, must any punitive damage recovery be proportional in amount to the nominal damages? See Edwards v. Jewish Hospital of St; Louis, 855 F.2d 1345, 1352 (8^th Cir. 1988) (“While we do not disagree [that the amount of a punitive damages award must bear a reasonable relationship to the amount of compensatory damages awarded], such a general statement has no application to an award of nominal damages. To apply the proportionality rule to a nominal damages award would invalidate most punitive damages awards because only very low punitive damage awards could be said to bear a reasonable relationship to the amount of a nominal damages award. Consequently, in those cases where the trial court has awarded nominal damages and punitive damages, we rely and give great deference to the trial court’s discretion as to the amount of punitive damages award it has permitted to stand. We will only reverse where it has been demonstrated that the trial court has abused its discretion.”).
5. In City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), the United States Supreme Court held that punitive damages may not be recovered against municipalities under Section 1983. The Court reasoned that at the time that Congress enacted Section 1983, it was well understood that municipal corporations were immune from punitive damages. The Court also resuscitated the failed Sherman Amendment; it found the absence of any provision for punitive damages in the Amendment, as well as the arguments that the Amendment would place undue financial burdens on local governments and unfairly punish taxpayers, as evidence that Congress did not intend to displace the common law immunity from damages when it enacted Section 1983. Finally, the Court concluded that considerations of public policy do not countenance rejection of the common law immunity of municipalities from punitive damages:
   

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

   * * * * *

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

   * * * * *

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

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

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

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

   * * * *

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

   City of Newport, 453 U.S. at 267-70.

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

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

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

      Cornwell, 896 F. 2d at 400.

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