OCTOBER TERM, 1997
Syllabus
CRAWFORD-EL
v. BRITTON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 96-827. Argued December 1, 1997-Decided May 4,1998
Petitioner is a litigious and outspoken prisoner in the District
of Columbia's correctional system. Because of overcrowding at the
District's prison, he was transferred, first to Washington State,
then to facilities in several other locations, and ultimately to
Florida. His belongings were transferred separately. When the
District's Department of Corrections received his belongings from
Washington State, respondent, a District correctional officer, had
petitioner's brother-in-law pick them up, rather than shipping them
directly to petitioner's next destination. Petitioner did not
recover the belongings until several months after he reached
Florida. He filed suit under 42 U. S. C. § 1983, alleging,
inter
alia, that respondent's diversion of his property was motivated
by an intent to retaliate against him for exercising his First
Amendment rights. The District Court dismissed the complaint. In
remanding, the en banc Court of Appeals concluded, among other
things, that in an unconstitutional-motive case, a plaintiff must
establish motive by clear and convincing evidence, and that the
reasoning in
Harlow v.
Fitzgerald, 457 U. S. 800, requires
special procedures to protect defendants from the costs of
litigation.
Held: The Court of Appeals erred in fashioning a
heightened burden of proof for unconstitutional-motive cases
against public officials. Pp. 584-60l.
(a) That court adopted a clear and convincing evidence
requirement to deal with a potentially serious problem: because an
official's state of mind is easy to allege and hard to disprove,
insubstantial claims turning on improper intent may be less
amenable to summary disposition than other types of claims against
government officials. The standard was intended to protect public
servants from the burdens of trial and discovery that may impair
the performance of their official duties. Pp. 584-586.
(b)
Harlow's holding does not support the imposition of a
heightened proof standard for a plaintiff's affirmative case. In
Harlow, the Court found that the President's senior aides
and advisers were protected by a qualified immunity standard that
would permit the defeat of insubstantial claims without resort to
trial. The Court announced a single objective standard for judging
that defense, shielding officials from "lia-
575
bility for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known," 457 U. S., at 818, and
eliminated the subjective standard, put forth in
Wood v.
Strickland, 420 U. S. 308, that "bare
allegations of malice" could rebut the defense, 457 U. S., at
817-818. However, evidence concerning the defendant's subjective
intent, although irrelevant to the qualified immunity defense, may
be an essential component of the plaintiff's affirmative case.
Since
Harlow's holding related only to the scope of the
affirmative defense, it provides no support for making any change
in the nature of the plaintiff's burden of proving a constitutional
violation. pp. 586-589.
(c) One reason implicit in
Harlow's holding-fairness to
the public official-provides no justification for special burdens
on plaintiffs who allege unlawful motive. Two other reasons
underlying
Harlow's holding-that the strong public interest
in protecting officials from the costs of damages actions is best
served by a defense permitting insubstantial lawsuits to be quickly
terminated, and that allegations of subjective motivation might
have been used to shield baseless suits from summary judgment-would
provide support for the type of procedural rule adopted by the
Court of Appeals here. However, countervailing concerns indicate
that the balance struck in the context of defining an affirmative
defense is not appropriate when evaluating the elements of the
plaintiff's cause of action. Initially, there is an important
distinction between the bare allegations of malice that would have
provided the basis for rebutting a qualified immunity defense in
Wood and the more specific allegations of intent that are
essential elements of certain constitutional claims. In the latter
instance, for example, the primary emphasis is on an intent to
disadvantage all members of a class that includes the plaintiff or
to deter public comment on a specific issue of public importance,
not on any possible animus directed at the plaintiff. Moreover,
existing law already prevents this more narrow element of
unconstitutional motive from automatically carrying a plaintiff to
trial. Summary judgment may be available ifthere is doubt as to the
illegality of the defendant's particular conduct; and, at least
with certain claims, there must be evidence of causation as well as
proof of an improper motive. Unlike the subjective component of the
immunity defense eliminated by
Harlow, the improper intent
element of various causes of action should not ordinarily preclude
summary disposition of insubstantial claims. Pp. 590-594.
(d) Without precedential grounding, changing the burden of proof
for an entire category of claims would stray far from the
traditional limits on judicial authority. Neither the text of §
1983 or any other federal statute nor the Federal Rules of Civil
Procedure provide any support
576
Syllabus
for imposing a clear and convincing burden of proof. The Court
of Appeals' unprecedented change lacks any common-law pedigree and
alters the cause of action in a way that undermines § 1983's very
purpose-to provide a remedy for the violation of federal rights.
This Court has consistently declined similar invitations to revise
established rules that are separate from the qualified immunity
defense. See,
e. g.,
Gomez v.
Toledo, 446 U. S. 635, 639-640.
To the extent that the Court of Appeals was concerned with
preventing discovery, such questions are most frequently and
effectively resolved by the rulemaking or legislative process.
Moreover, the court's indirect effort to regulate discovery employs
a blunt instrument with a high cost that also imposes a heightened
standard of proof at trial upon plaintiffs with bona fide
constitutional claims. Congress has already fashioned special rules
to discourage inmates' insubstantial suits in the Prison Litigation
Reform Act, which draws no distinction between constitutional
claims that require proof of an improper motive and those that do
not. If there is a compelling need to frame new rules based on such
a distinction, presumably Congress would have done so or will
respond to it in future legislation. pp.594-597.
(e) Existing procedures are available to federal trial judges
for use in handling claims that involve examination of an
official's state of mind. pp. 597-601.
93 F.3d
813, vacated and remanded.
STEVENS, J., delivered the opinion of the Court, in which
KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J.,
filed a concurring opinion,
post, p. 601. REHNQUIST, C. J.,
filed a dissenting opinion, in which O'CONNOR, J., joined,
post, p. 601. SCALIA, J., filed a dissenting opinion, in
which THOMAS, J., joined,
post, p. 611.
Daniel M. Schember argued the cause and filed briefs for
petitioner.
Walter A. Smith, Jr., Special Deputy Corporation Counsel
of the District of Columbia, argued the cause for respondent. With
him on the brief were
John M. Ferren, Corporation Counsel,
and
Charles L. Reischel, Deputy Corporation Counsel.
Jeffrey P. Minear argued the cause for the United States as
amicus curiae urging affirmance. On the brief were Acting Solicitor
General Waxman, Assistant Attorney General
577
Hunger, Deputy Solicitor General Kneedler, Deputy Assistant
Attorney General Preston, Irving L. Gornstein, Barbara L. Herwig,
and Robert Loeb. *
JUSTICE STEVENS delivered the opinion of the Court. Petitioner,
a long-time prison inmate, seeks damages from a corrections officer
based on a constitutional claim that requires proof of improper
motive. The broad question presented is whether the courts of
appeals may craft special procedural rules for such cases to
protect public servants from the burdens of trial and discovery
that may impair the performance of their official duties. The more
specific question is whether, at least in cases brought by
prisoners, the
*Briefs of
amici curiae urging affirmance were filed for
the State of Missouri et al. by
Jeremiah W (Jay) Nixon,
Attorney General of Missouri,
John R. Munich, Deputy
Attorney General, and
Alana M. Barragan-Scott and
Gretchen E. Rowan, Assistant Attorneys General,
Charles
H. Troutman, Acting Attorney General of Guam, and by the
Attorneys General for their respective jurisdictions as follows:
Bill Pryor of Alabama,
Bruce M. Botelho of Alaska,
Grant Woods of Arizona,
Winston Bryant of Arkansas,
Daniel E. Lungren of California,
Gale A. Norton of
Colorado,
M. Jane Brady of Delaware,
Robert A.
Butterworth of Florida,
Margery S.
Bronster of
Hawaii,
Chris Gorman of Kentucky,
Richard P. Ieyoub
of Louisiana, J.
Joseph Curran, Jr., of Maryland,
Scott
Harshbarger of Massachusetts,
Frank J.
Kelley of
Michigan,
Hubert H. Humphrey III of Minnesota,
Mike
Moore of Mississippi,
Joseph P. Mazurek of Montana,
Don Stenberg of Nebraska,
Frankie Sue Del Papa of
Nevada,
Dennis C.
Vacco of New York,
Heidi
Heitkamp of North Dakota,
Betty D. Montgomery of Ohio,
W A. Drew Edmondson of Oklahoma,
Hardy Myers of
Oregon,
D. Michael Fisher of Pennsylvania,
Jeffrey B.
Pine of Rhode Island,
Mark W Barnett of South Dakota,
Dan Morales of Texas,
Jan Graham of Utah,
William
H. Sorrell of Vermont,
Richard Cullen of Virginia,
Julio A. Brady of the Virgin Islands,
Darrell V. McGraw,
Jr., of West Virginia, and
James E. Doyle of Wisconsin;
for the American Civil Liberties Union et al. by
Arthur B.
Spitzer and
Steven R. Shapiro; and for J. Michael
Quinlan et al. by
Michael L. Martinez.
Daniel H. Bromberg and Paul Michael Pohl filed a brief for
William G.
Moore, Jr., as amicus curiae.
578
plaintiff must adduce clear and convincing evidence of improper
motive in order to defeat a motion for summary judgment.
I
Petitioner is serving a life sentence in the District of
Columbia's correctional system. During his confinement he has filed
several lawsuits and has assisted other prisoners with their cases.
He has also provided interviews to reporters who have written news
stories about prison conditions. He is a litigious and outspoken
prisoner.
The events that gave rise to this case occurred in 1988 and
1989. Because of overcrowding in the District of Columbia prison in
Lorton, Virginia, petitioner and other inmates were transferred to
the county jail in Spokane, Washington. Thereafter, he was moved,
first to a Washington State prison, later to a facility in Cameron,
Missouri, next back to Lorton, then to Petersburg, Virginia, and
ultimately to the federal prison in Marianna, Florida. Three boxes
containing his personal belongings, including legal materials, were
transferred separately. When the District of Columbia Department of
Corrections received the boxes from the Washington State facility,
respondent, a District correctional officer, asked petitioner's
brother-in-law to pick them up rather than sending them directly to
petitioner's next destination. The boxes were ultimately shipped to
Marianna by petitioner's mother, at petitioner's expense, but he
was initially denied permission to receive them because they had
been sent outside official prison channels. He finally recovered
the property several months after his arrival in Florida.
Petitioner contends that respondent deliberately misdirected the
boxes to punish him for exercising his First Amendment rights and
to deter similar conduct in the future. Beyond generalized
allegations of respondent's hostility, he alleges specific
incidents in which his protected speech had
579
provoked her.1 His claimed injury caused by the delay in
receiving his boxes includes the costs of having the boxes shipped
and purchasing new clothes and other items in the interim, as well
as mental and emotional distress. Respondent denies any retaliatory
motive and asserts that she entrusted the property to petitioner's
brother-in-law, who was also a District of Columbia corrections
employee, in order to ensure its prompt and safe delivery.
Although the factual dispute is relatively simple, it engendered
litigation that has been both protracted and complex. We shall
briefly describe the proceedings that led to the en banc Court of
Appeals decision that we are reviewing, and then summarize that
decision.
The Early Proceedings
Petitioner filed suit against respondent and the District of
Columbia seeking damages under Rev. Stat. § 1979, 42 U. S. C. §
1983.2 The principal theory advanced in his origi-
1 In 1986, petitioner had invited a Washington Post reporter to
visit the Lorton prison and obtained a visitor application for the
reporter, which resulted in a front-page article on the prison's
overcrowding "crisis." Respondent had approved the visitor
application, which did not disclose the visitor's affiliation with
the newspaper; she allegedly accused petitioner of tricking her and
threatened to make life "as hard for him as possible." App. to Pet.
for Cert. 178a. Petitioner also alleges that when he had complained
in 1988 about invasions of privacy, respondent told him, "You're a
prisoner, you don't have any rights."
Id., at 179a. Later in
1988, after another front-page Washington Post article quoted
petitioner as saying that litigious prisoners had been "handpicked"
for transfer to Spokane "so our lawsuits will be dismissed on
procedural grounds," respondent allegedly referred to him as a
"legal troublemaker."
Id., at 180a-181a.
2 Title 42 U. S. C. § 1983 provides:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,
580
nal complaint was that respondent had diverted the boxes
containing his legal materials in order to interfere with his
constitutional right of access to the courts.
Prior to discovery, respondent, relying in part on a qualified
immunity defense, moved for dismissal of the complaint or summary
judgment. The motion was denied and respondent appealed, arguing,
first, that the complaint did not allege a violation of any
constitutional right that was clearly established at the time of
her acts; and, second, that the complaint "failed to satisfy the
'heightened pleading standard' that this circuit applies to damage
actions against government officials."
951 F.2d
1314, 1316 (CADC 1991).
The Court of Appeals agreed with petitioner that his
constitutional right of access to the courts was well established
in 1989, and that his allegations of wrongful intent were
sufficiently detailed and specific to withstand a motion to dismiss
even under the Circuit's "heightened pleading standard."
Id., at 1318, 1321. The court concluded, however, that the
allegations of actual injury to his ability to litigate were
insufficient under that standard; accordingly, the complaint should
have been dismissed.
Id., at 1321-1322. Because the contours
of the pleading standard had been clarified in a decision announced
while the case was on appeal, see
Hunter v.
District of
Columbia, 943 F.2d
69 (CADC 1991), the court concluded that petitioner should be
allowed to replead.
On remand, petitioner filed an amended complaint adding more
detail to support his access claim and also adding two new claims:
a due process claim and the claim that respondent's alleged
diversion of his property was motivated by an
shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress .... "
Only the claim against respondent is before us. The Court of
Appeals did not consider whether petitioner's amended complaint
stated a cause of action against the District.
581
intent to retaliate against him for exercising his First
Amendment rights. The District Court dismissed the amended
complaint because the court access claim and the due process claim
were legally insufficient, and because the First Amendment
retaliation claim did not allege "direct evidence of
unconstitutional motive." 844 F. Supp. 795, 802 (DC 1994). The
dismissal was, in effect, mandated by prior decisions of the Court
of Appeals holding that allegations of circumstantial evidence of
such a motivation were insufficient to withstand a motion to
dismiss. See
Martin v.
D. C.
Metropolitan Police
Department, 812 F.2d
1425, 1435 (1987);
Siegert v.
Gilley, 895 F.2d
797, 800-802 (1990), aff'd on other grounds,
500 U. S. 226 (1991).
The En Banc Proceeding
A panel of the Court of Appeals affirmed the dismissal of the
first two claims but suggested that the entire court should review
the dismissal of the First Amendment retaliation claim.
Accordingly, the en banc court ordered the parties to file briefs
addressing five specific questions, two of which concerned the
power of the Circuit to supplement the Federal Rules of Civil
Procedure with special pleading requirements for plaintiffs
bringing civil rights claims against government officials,3 and two
of which concerned possible special grounds for granting defense
motions for summary judgment in cases "where the unlawfulness
depends on the
3 The first two questions asked:
"1. In cases where plaintiffs bring civil rights claims against
Government officials who assert qualified immunity, may this
circuit supplement the Federal Rules of Civil Procedure by
requiring plaintiffs to satisfy a heightened pleading requirement
in their complaint or face dismissal prior to discovery? If so,
should it be done?
"2. May this circuit require that plaintiffs who allege that
Government officials acted with unconstitutional intent plead
direct, as opposed to circumstantial evidence of that intent? If
so, should it be done?" App. to Pet. for Cert. 108a.
582
actor's unconstitutional motive."4 The fifth was a catchall
question that asked the parties whether there are "any alternative
devices which protect defendants with qualified immunity, in cases
of constitutional tort depending on the defendant's motive or
intent, from the costs of litigation?" App. to Pet. for Cert.
109a.
The en bane court responded to these questions in five separate
opinions. A majority of the judges appear to have agreed on these
four propositions: (1) the case should be remanded to the District
Court for further proceedings; (2) the plaintiff does not have to
satisfy any heightened pleading requirement, and may rely on
circumstantial as well as direct evidence; 5 (3) in order to
prevail in an unconstitutionalmotive case, the plaintiff must
establish that motive by clear and convincing evidence; and (4)
special procedures to protect defendants from the costs of
litigation in
4 The questions regarding summary judgment asked:
"3. In claims of constitutional tort where the unlawfulness
depends on the actor's unconstitutional motive and the defendant
enjoys qualified immunity, should the court grant a defense motion
for summary judgment, made before plaintiff has conducted
discovery, if the plaintiff has failed to adduce evidence from
which the fact finder could reasonably infer the illicit motive?
See Harlow v.
Fitzgerald, 457 U. S. 800, 815-18
(1982);
Elliott v.
Thomas, 937
F.2d 338, 345-46 (7th Cir. 1991)?
"4. In claims of constitutional tort where the unlawfulness
depends on the actor's unconstitutional motive and the defendant
enjoys qualified immunity, are there any circumstances, apart from
national security issues of the sort at stake in
Halperin v.
Kissinger, 807 F.2d
180, 184-85 (D. C. Cir. 1986), where the court should grant a
defense motion for summary judgment on a showing by the defendant
such that a reasonable jury would necessarily conclude that the
defendant's stated motivation 'would have been reasonable'?
Id. at 188;
see also id. at 189 (summary judgment
warranted where no reasonable jury could find that 'it was
objectively unreasonable for the defendants' to be acting for
stated, innocent motives)."
Id., at 108a-109a.
5 On this point, the court disavowed its prior direct-evidence
rule of
Martin V.
D. C.
Metropolitan Police
Department, 812 F.2d
1425, 1435 (CADC 1987), and
Siegert V.
Gilley,
895 F.2d
797, 800-802 (CADC 1990), aff'd on other grounds,
500 U. S. 226 (1991).
583
unconstitutional-motive cases are required by the reasoning in
this Court's opinion in
Harlow v.
Fitzgerald,
457 U. S. 800
(1982).
The primary opinion, written by Judge Williams, announced two
principal conclusions: "First, we think
Harlow allows an
official to get summary judgment resolution of the qualified
immunity issue, including the question of the official's state of
mind,
before the plaintiff has engaged in discovery on that
issue. Second, we believe that unless the plaintiff offers clear
and convincing evidence on the state-of-mind issue at summary
judgment and trial, judgment or directed verdict (as appropriate)
should be granted for the individual defendant."
93 F.3d
813, 815 (CADC 1996).
Judge Silberman criticized Judge Williams' approach as
confusing,
id., at 833, and suggested that
Harlow's
reasoning pointed to a "more straightforward solution," 93 F. 3d,
at 834. In his opinion, whenever a defendant asserts a legitimate
motive for his or her action, only an objective inquiry into
pretextuality should be allowed. "If the facts establish that the
purported motivation would have been reasonable, the defendant is
entitled to qualified immunity."
Ibid.
Judge Ginsburg agreed with the decision to impose a clear and
convincing standard of proof on the unconstitutional motive issue,
but he could not accept Judge Williams' new requirement that the
District Court must "grant summary judgment prior to discovery
unless the plaintiff already has in hand" sufficient evidence to
satisfy that standard.
Id., at 839. He described that
innovation as "a rather bold intrusion into the district court's
management of the fact-finding process" that would result in the
defeat of meritorious claims and "invite an increase in the number
of constitutional torts that are committed."
Ibid. He would
allow limited discovery on a proper showing before ruling on a
summary judgment motion, but noted that in cases involving
qualified immunity it would be an abuse of discretion for the trial
judge to fail to consider, not only the interests of the parties,
"but
584
also the social costs associated with discovery had against a
government official."
Id., at 840. With reference to the
case at hand, he expressed the view that if petitioner could not
show that discovery might reveal more than already appeared in the
record, summary judgment would be appropriate without any
discovery.
Id., at 841-844.
Judge Henderson "fully" endorsed the plurality's new clear and
convincing evidence standard, but thought that it was a mistake for
her colleagues to hear this case en bane because the record already
made it abundantly clear that petitioner's claim had no merit.
Id., at 844-845.
Chief Judge Edwards, joined by four other judges, criticized the
majority for" 'crossing the line between adjudication and
legislation.'''
Id., at 847 (quoting Frankfurter, Some
Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 535
(1947)). He expressed the view that the new evidentiary standards
were unauthorized by statute or precedent and "would make it all
but certain that an entire category of constitutional tort claims
against government officials-whether or not meritorious-would
never be able to survive a defendant's assertion of
qualified immunity." 93
The different views expressed in those five opinions attest to
the importance of both the underlying issue and a correct
understanding of the relationship between our holding in
Harlow v.
Fitzgerald, 457 U. S. 800 (1982), and
the plaintiff's burden when his or her entitlement to relief
depends on proof of an improper motive. Despite the relative
unimportance of the facts of this particular case, we therefore
decided to grant certiorari. 520 U. S. 1273 (1997).
II
The Court of Appeals' requirement of clear and convincing
evidence of improper motive is that court's latest effort to
address a potentially serious problem: Because an official's
585
state of mind is "easy to allege and hard to disprove,"
insubstantial claims that turn on improper intent may be less
amenable to summary disposition than other types of claims against
government officials. 93 F. 3d, at 816, 821. This category of
claims therefore implicates obvious concerns with the social costs
of subjecting public officials to discovery and trial, as well as
liability for damages. The other Courts of Appeals have also
grappled with this problem, but none has adopted a heightened
burden of proof. See id., at 851852, n. 7 (Edwards, C. J.,
concurring in judgment) (citing cases).
The new rule established in this case is not limited to suits by
prisoners against local officials, but applies to all classes of
plaintiffs bringing damages actions against any government
official, whether federal, state, or local. See
Butz v.
Economou,
438
U. S. 478, 500-504 (1978). The heightened burden of proof
applies, moreover, to the wide array of different federallaw claims
for which an official's motive is a necessary element, such as
claims of race and gender discrimination in violation of the Equal
Protection Clause,6 cruel and unusual punishment in violation of
the Eighth Amendment,7 and termination of employment based on
political affiliation in violation of the First Amendment,S as well
as retaliation for the exercise of free speech or other
constitutional rights.9 A bare majority of the Court of Appeals
regarded this sweeping rule as a necessary corollary to our opinion
in
Harlow.
There is, of course, an important difference between the holding
in a case and the reasoning that supports that holding. We shall,
therefore, begin by explaining why our hold-
6
Washington v.
Davis, 426 U. S. 229, 239-248
(1976) (race);
Personnel
Administrator of Mass. v.
Feeney, 442 U. S. 256,274 (1979)
(gender). 7
Farmer v.
Brennan, 511 U. S. 825, 835-840
(1994).
8
Branti v.
Finkel, 445 U. S. 507, 513-517
(1980).
9 E. g., Pickering v. Board of Ed. of Township High School Dist.
205, Will Cty.,
391
U. S. 563, 574 (1968).
586
ing in
Harlow does not resolve the issue presented in
this case-indeed, it does not even address any question concerning
the plaintiff's affirmative case. We shall then consider whether
the reasoning in that opinion nevertheless supports the conclusion
reached by the Court of Appeals.
Harlow's Specific Holding
In 1968, A. Ernest Fitzgerald testified before a congressional
subcommittee about technical difficulties and excessive costs
incurred in the development of a new transport plane. His testimony
was widely reported and evidently embarrassed his superiors in the
Department of Defense. In 1970, his job as a management analyst
with the Department of the Air Force was eliminated in a
"departmental reorganization and reduction in force."
Nixon
v.
Fitzgerald, 457 U. S. 731, 733
(1982). After the conclusion of extended proceedings before the
Civil Service Commission in 1973, Fitzgerald filed suit against the
President of the United States and some of his aides alleging that
they had eliminated his job in retaliation for his testimony. He
sought damages on both statutory grounds and "in a direct action
under the Constitution."
Id., at 748. When his charges were
reviewed in this Court, we considered the defendants' claims to
immunity in two separate opinions. In
Nixon v.
Fitzgerald, we held that a former President is entitled to
absolute immunity from damages liability predicated on conduct
within the scope of his official duties.
Id., at 749. In
Harlow v.
Fitzgerald, 457 U. S. 800 (1982), we
held that the senior aides and advisers of the President were not
entitled to absolute immunity, id., at 808-813, but instead were
protected by a "qualified immunity standard that would permit the
defeat of insubstantial claims without resort to trial."
Id., at 813.
Our definition of that qualified immunity standard was informed
by three propositions that had been established by earlier cases.
First, in
Gomez v.
Toledo, 446 U. S. 635, 639-
587
641 (1980), we held that qualified immunity is an affirmative
defense and that "the burden of pleading it rests with the
defendant." Second, in
Butz v.
Economou, 438 U. S.,
at 503504, we determined that the scope of that defense was the
same in actions against state officials under 42 U. S. C. § 1983
and in actions against federal officials under the Federal
Constitution, and that in both types of actions the courts are
"competent to determine the appropriate level of immunity." Third,
in
Scheuer v.
Rhodes, 416 U. S. 232 (1974), we
presumed that the defense protects all officers in the executive
branch of government performing discretionary functions, id., at
245-248, but held that the presumption was rebuttable, id., at
249-250.
The actual scope of the defense had been the subject of debate
within the Court in
Wood v.
Strickland, 420 U. S. 308 (1975), a
case involving a constitutional claim against the members of a
school board. A bare majority in that case concluded that the
plaintiff could overcome the defense of qualified immunity in two
different ways, either if (1) the defendant "knew or reasonably
should have known that the action he took within his sphere of
official responsibility would violate the constitutional rights of
the student affected," or (2) "he took the action with the
malicious intention to cause a deprivation of constitutional rights
or other injury to the student."
Id., at 322. In dissent,
Justice Powell argued that the majority's standard was too
demanding of public officials, but his proposed standard, like the
majority's, included both an objective and a subjective component.
In his view, our opinion in
Scheuer had established this
standard: "whether in light of the discretion and responsibilities
of his office, and under all of the circumstances as they appeared
at the time, the officer acted
reasonably and in good
faith." 420 U. S., at 330 (emphasis added).
In
Harlow, the Court reached a consensus on the proper
formulation of the standard for judging the defense of quali-
588
fied immunity. Speaking for the Court, Justice Powell announced
a single objective standard:
"Consistently with the balance at which we aimed in Butz,
we conclude today that bare allegations of malice should not
suffice to subject government officials either to the costs of
trial or to the burdens of broad-reaching discovery. We therefore
hold that government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." 457 U. S., at 817-818.
Under that standard, a defense of qualified immunity may not be
rebutted by evidence that the defendant's conduct was malicious or
otherwise improperly motivated. Evidence concerning the defendant's
subjective intent is simply irrelevant to that defense.
Our holding that "bare allegations of malice" cannot overcome
the qualified immunity defense did not implicate the elements of
the plaintiff's initial burden of proving a constitutional
violation. It is obvious, of course, that bare allegations of
malice would not suffice to establish a constitutional claim. It is
equally clear that an essential element of some constitutional
claims is a charge that the defendant's conduct was improperly
motivated. For example, A. Ernest Fitzgerald's constitutional
claims against President Nixon and his aides were based on the
theory that they had retaliated against him for speaking out on a
matter of public concern.10 Our consideration of the immunity
issues in both the
Nixon
10 The reason why such retaliation offends the Constitution is
that it threatens to inhibit exercise of the protected right.
Pickering, 391 U. S., at 574. Retaliation is thus akin to an
"unconstitutional condition" demanded for the receipt of a
government-provided benefit. See
Perry v.
Sindermann,
408 U. S. 593,
597 (1972).
589
case and in
Harlow itself assumed that Fitzgerald would
be entitled to prevail but for the immunity defenses.ll Thus,
although evidence of improper motive is irrelevant on the issue of
qualified immunity, it may be an essential component of the
plaintiff's affirmative case. Our holding in
Harlow, which
related only to the scope of an affirmative defense, provides no
support for making any change in the nature of the plaintiff's
burden of proving a constitutional violation.
Nevertheless, the en banc court's ruling makes just such a
change in the plaintiff's cause of action. The court's clear and
convincing evidence requirement applies to the plaintiff's showing
of improper intent (a pure issue of fact), not to the separate
qualified immunity question whether the official's alleged conduct
violated clearly established law, which is an "essentially legal
question."
Mitchell v.
Forsyth, 472 U. S. 511, 526-529
(1985); see
Gomez, 446 U. S., at 640 ("[T]his Court has
never indicated that qualified immunity is relevant to the
existence of the plaintiff's cause of action"). Indeed, the court's
heightened proof standard logically should govern even if the
official never asserts an immunity defense. See 93 F. 3d, at 815,
838. Such a rule is not required by the holding in
Harlow.
11 See
Siegert v.
Gilley, 500 U. S. 226, 232 (1991)
(observing that "the determination of whether the plaintiff has
asserted a violation of a constitutional right at all" is a
"necessary concomitant" to the threshold immunity question).
Indeed, when JUSTICE GINSBURG was a judge on the District of
Columbia Circuit, she commented:
"Had the Court [in
Harlow] intended its formulation of
the qualified immunity defense to foreclose
all inquiry into
the defendants' state of mind, the Court might have instructed the
entry of judgment for defendants Harlow and Butterfield on the
constitutional claim without further ado. In fact, the Court
returned the case to the district court in an open-ended remand, a
disposition hardly consistent with a firm intent to delete the
state of mind inquiry from every constitutional tort calculus."
Martin, 812 F. 2d, at 1432.
This correct understanding explains why
Harlow does not
support the change in the law advocated by THE CHIEF JUSTICE,
post, at 602.
590
The Reasoning in Harlow
Two reasons that are explicit in our opinion in
Harlow,
together with a third that is implicit in the holding, amply
justified
Harlow's reformulation of the qualified immunity
defense. First, there is a strong public interest in protecting
public officials from the costs associated with the defense of
damages actions.12 That interest is best served by a defense that
permits insubstantial lawsuits to be quickly terminated. Second,
allegations of subjective motivation might have been used to shield
baseless lawsuits from summary judgment. 457 U. S., at 817-818. The
objective standard, in contrast, raises questions concerning the
state of the law at the time of the challenged conduct-questions
that normally can be resolved on summary judgment. Third, focusing
on "the objective legal reasonableness of an official's acts," id.,
at 819, avoids the unfairness of imposing liability on a defendant
who "could not reasonably be expected to anticipate subsequent
legal developments, nor ... fairly be said to 'know' that the law
forbade conduct not previously identified as unlawful," id., at
818.13 That unfairness may
12 "These social costs include the expenses of litigation, the
diversion of official energy from pressing public issues, and the
deterrence of able citizens from acceptance of public office.
Finally, there is the danger that fear of being sued will 'dampen
the ardor of all but the most resolute, or the most irresponsible
[public officials], in the unflinching discharge of their duties.'
Gregoire v.
Biddle, 177 F.2d 579, 581
(CA2
1949), cert. denied, 339 U. S. 949 (1950)."
Harlow, 457 U.
S., at 814.
13 Our opinion in
Scheuer v.
Rhodes, 416 U. S. 232 (1974),
explicitly identified fairness as an important concern: "This
official immunity apparently rested, in its genesis, on two
mutually dependent rationales: (1) the injustice, particularly in
the absence of bad faith, of subjecting to liability an officer who
is required, by the legal obligations of his position, to exercise
discretion; (2) the danger that the threat of such liability would
deter his willingness to execute his office with the decisiveness
and the judgment required by the public good."
Id., at
239-240 (footnote omitted). Fairness alone is not, however, a
sufficient reason for the immunity defense, and thus does not
justify its extension to private parties.
Wyatt v.
Cole, 504 U.
S. 158, 168 (1992).
591
be present even when the official conduct is motivated, in part,
by hostility to the plaintiff.
This last rationale of fairness does not provide any
justification for the imposition of special burdens on plaintiffs
who allege misconduct that was plainly unlawful when it occurred.
While there is obvious unfairness in imposing liability-indeed,
even in compelling the defendant to bear the burdens of discovery
and trial-for engaging in conduct that was objectively reasonable
when it occurred, no such unfairness can be attributed to holding
one accountable for actions that he or she knew, or should have
known, violated the constitutional rights of the plaintiff.
Harlow itself said as much: "If the law was clearly
established, the immunity defense ordinarily should fail, since a
reasonably competent public official should know the law governing
his conduct."
Id., at 818-819; see also
Butz, 438 U.
S., at 506 ("[I]t is not unfair to hold liable the official who
knows or should know he is acting outside the law ... ").
The first two reasons underlying our holding in
Harlow,
however, would provide support for a procedural rule that makes it
harder for any plaintiff, especially one whose constitutional claim
requires proof of an improper motive, to survive a motion for
summary judgment. But there are countervailing concerns that must
be considered before concluding that the balance struck in the
context of defining an affirmative defense is also appropriate when
evaluating the elements of the plaintiff's cause of action. In
Harlow, we expressly noted the need for such a balance
"between the evils inevitable in any available alternative." 457 U.
S., at 813-814. We further emphasized: "In situations of abuse of
office, an action for damages may offer the only realistic avenue
for vindication of constitutional guarantees."
Id., at 814.
Social costs that adequately justified the elimination of the
subjective component of an affirmative defense do not necessarily
justify serious limitations upon "the only realistic" remedy for
the violation of constitutional guarantees.
592
There are several reasons why we believe that here, unlike
Harlow, the proper balance does not justify a judicial
revision of the law to bar claims that depend on proof of an
official's motive. Initially, there is an important distinction
between the "bare allegations of malice" that would have provided
the basis for rebutting a qualified immunity defense under
Wood v.
Strickland and the allegations of intent that
are essential elements of certain constitutional claims. Under
Wood, the mere allegation of intent to cause any "other
injury," not just a deprivation of constitutional rights, would
have permitted an open-ended inquiry into subjective motivation.
420 U. S., at 322. When intent is an element of a constitutional
violation, however, the primary focus is not on any possible animus
directed at the plaintiff; rather, it is more specific, such as an
intent to disadvantage all members of a class that includes the
plaintiff, see,
e. g., Washington v.
Davis, 426 U. S. 229, 239-248
(1976), or to deter public comment on a specific issue of public
importance. Thus, in
Harlow, hostility to the content of
Fitzgerald's testimony, rather than an intent to cause him harm,
was the relevant component of the constitutional claim. In this
case, proof that respondent diverted the plaintiff's boxes because
she hated him would not necessarily demonstrate that she was
responding to his public comments about prison conditions, although
under
Wood such evidence might have rebutted the qualified
immunity defense.
Moreover, existing law already prevents this more narrow element
of unconstitutional motive from automatically carrying a plaintiff
to trial. The immunity standard in
Harlow itself eliminates
all motive-based claims in which the official's conduct did not
violate clearly established law. Even when the general rule has
long been clearly established (for instance, the First Amendment
bars retaliation for protected speech), the substantive legal
doctrine on which the plaintiff relies may facilitate summary
judgment in two different
593
ways. First, there may be doubt as to the illegality of the
defendant's particular conduct (for instance, whether a plaintiff's
speech was on a matter of public concern). See generally
Anderson v.
Creighton, 483 U. S. 635, 640-641
(1987). Second, at least with certain types of claims, proof of an
improper motive is not sufficient to establish a constitutional
violation-there must also be evidence of causation. Accordingly,
when a public employee shows that protected speech was a
"motivating factor" in an adverse employment decision, the employer
still prevails by showing that it would have reached the same
decision in the absence of the protected conduct.
Mt. Healthy
City Bd. of Ed. v.
Doyle, 429 U. S. 274, 287
(1977). Furthermore, various procedural mechanisms already enable
trial judges to weed out baseless claims that feature a subjective
element, as we explain in more detail in Part IV;
infra.14
Thus, unlike the subjective component of the immunity defense
eliminated by
Harlow, the improper intent element of various
causes of action should not ordinarily preclude summary disposition
of insubstantial claims. The reasoning in
Harlow, like its
specific holding, does not justify a rule that places a thumb on
the defendant's side of the scales when the merits of a claim that
the defendant knowingly violated the law are being resolved. And,
a fortiori, the policy con-
14 These various protections may not entirely foreclose
discovery on the issue of motive, and the Court of Appeals adopted
its heightened proof standard in large part to facilitate the
resolution of summary judgment motions before any discovery at all.
Discovery involving public officials is indeed one of the evils
that
Harlow aimed to address, but neither that opinion nor
subsequent decisions create an immunity from
all discovery.
Harlow sought to protect officials from the costs of
"broad-reaching" discovery, 457 U. S., at 818, and we have since
recognized that limited discovery may sometimes be necessary before
the district court can resolve a motion for summary judgment based
on qualified immunity.
Anderson v.
Creighton,
483 U. S. 635,
646, n. 6 (1987); see also
Mitchell v.
Forsyth,
472 U. S. 511,
526 (1985).
594
cerns underlying
Harlow do not support JUSTICE SCALIA'S
unprecedented proposal to immunize all officials whose conduct is
"objectively valid," regardless of improper intent, see
post, at 612 (dissenting opinion).
III
In fashioning a special rule for constitutional claims that
require proof of improper intent, the judges of the Court of
Appeals relied almost entirely on our opinion in
Harlow, and
on the specific policy concerns that we identified in that opinion.
As we have explained, neither that case nor those concerns warrant
the wholesale change in the law that they have espoused. Without
such precedential grounding, for the courts of appeals or this
Court to change the burden of proof for an entire category of
claims would stray far from the traditional limits on judicial
authority.
Neither the text of § 1983 or any other federal statute, nor the
Federal Rules of Civil Procedure, provide any support for imposing
the clear and convincing burden of proof on plaintiffs either at
the summary judgment stage or in the trial itself. The same might
be said of the qualified immunity defense; but in
Harlow, as
in the series of earlier cases concerning both the absolute and the
qualified immunity defenses, we were engaged in a process of
adjudication that we had consistently and repeatedly viewed as
appropriate for judicial decision-a process "predicated upon a
considered inquiry into the immunity historically accorded the
relevant official at common law and the interests behind it."
Imbler v.
Pachtman, 424 U. S. 409, 421
(1976); see also
Butz, 438 U. S., at 503-504;
Wyatt
v.
Cole, 504
U. S. 158, 170-172 (1992) (KENNEDY, J., concurring).15 The
unprecedented change
15 Though our opinion in
Harlow was forthright in
revising the immunity defense for policy reasons, see
Anderson, 483 U. S., at 645, that decision nonetheless
followed recent Court precedent and simply eliminated one aspect of
the established doctrine; it did not create a new immunity standard
out of whole cloth.
595
made by the Court of Appeals in this case, however, lacks any
common-law pedigree and alters the cause of action itself in a way
that undermines the very purpose of § 1983-to provide a remedy for
the violation of federal rights.16
In the past, we have consistently declined similar invitations
to revise established rules that are separate from the qualified
immunity defense. We refused to change the Federal Rules governing
pleading by requiring the plaintiff to anticipate the immunity
defense,
Gomez, 446 U. S., at 639640, or requiring pleadings
of heightened specificity in cases alleging municipal liability,
Leatherman v.
Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U. S. 163, 164-169
(1993). We also declined to craft an exception to settled rules of
interlocutory appellate jurisdiction and rejected the argument that
the policies behind the immunity defense justify interlocutory
appeals on questions of evidentiary sufficiency.
Johnson v.
Jones, 515 U.
S. 304, 317-318 (1995). Our reasons for those unanimous rulings
apply with equal force to the imposition of a clear and convincing
burden of proof in cases alleging unconstitutional motive.
As we have noted, the Court of Appeals adopted a heightened
proof standard in large part to reduce the availability of
discovery in actions that require proof of motive. To the extent
that the court was concerned with this procedural issue, our cases
demonstrate that questions regarding pleading, discovery, and
summary judgment are most frequently and most effectively resolved
either by the rulemaking process or the legislative process. See,
e. g., Leatherman, 507 U. S., at 168-169. Moreover, the
Court of Appeals' indirect effort to regulate discovery employs a
blunt instrument that carries a high cost, for its rule also
imposes a heightened standard of proof at trial upon plaintiffs
with bona fide con-
16 Ironically, the heightened standard of proof directly limits
the availability of the remedy in cases involving the specific evil
at which the Civil Rights Act of 1871 (the predecessor of § 1983)
was originally aimed-race discrimination. See
Monroe v.
Pape, 365 U.
S. 167, 174-175 (1961).
596
stitutional claims. See
Anderson v.
Liberty Lobby,
Inc., 477 U. S.
242, 252-255 (1986).
One particular recent action by Congress highlights our concern
with judicial rulemaking to protect officials from damages actions.
Both Judge Silberman's opinion below and a brief filed in this
Court by 34 States, Guam, and the Virgin Islands suggest that new
substantive or procedural rules are warranted because of the very
large number of civil rights actions filed by prison inmates. See
93 F. 3d, at 830, 838; Brief for State of Missouri et al. as
Amici Curiae 12. Arguably, such cases deserve special
attention because many of them are plainly frivolous and some may
be motivated more by a desire to obtain a "holiday in court," 17
than by a realistic expectation of tangible relief.
Even assuming that a perceived problem with suits by inmates
could justify the creation of new rules by federal judges, Congress
has already fashioned special rules to cover these cases. The
Prison Litigation Reform Act, Pub. L. 104-134, 110 Stat. 1321,
enacted in April 1996, contains provisions that should discourage
prisoners from filing claims that are unlikely to succeed. Among
the many new changes relating to civil suits, the statute requires
all inmates to pay filing fees; denies
in forma pauperis
status to prisoners with three or more prior "strikes" (dismissals
because a filing is frivolous, malicious, or fails to state a claim
upon which relief may be granted) unless the prisoner is "under
imminent danger of serious physical injury," § 804(d); bars suits
for mental or emotional injury unless there is a prior showing of
physical injury; limits attorney's fees; directs district courts to
screen prisoners' complaints before docketing and authorizes the
court on its own motion to dismiss "frivolous," "malicious," or
meritless actions; permits the revocation of good
17 In his dissent in
Harris v.
Pate, 440 F.2d
315 (CA7 1971), Judge Hastings wrote in reference to the
"ever increasing volume of frivolous civil actions filed by state
custodial prisoners" that "[o]f course, most prisoners would enjoy
a holiday in court."
Id., at 320.
597
time credits for federal prisoners who file malicious or false
claims; and encourages hearings by telecommunication or in prison
facilities to make it unnecessary for inmate plaintiffs to leave
prison for pretrial proceedings. See 28 U. S. C. §§ 1346(b)(2),
1915, 1915A, 1932 (1994 ed., Supp. II); 42 U. S. C. § 1997e (1994
ed., Supp. II). Recent statistics suggest that the Act is already
having its intended effect.18
Most significantly, the statute draws no distinction between
constitutional claims that require proof of an improper motive and
those that do not. If there is a compelling need to frame new rules
of law based on such a distinction, presumably Congress either
would have dealt with the problem in the Reform Act, or will
respond to it in future legislation.
IV
In
Harlow, we noted that a "'firm application of the
Federal Rules of Civil Procedure' is fully warranted" and may lead
to the prompt disposition of insubstantial claims. 457 U. S., at
819-820, n. 35 (quoting
Butz, 438 U. S., at 508). Though we
have rejected the Court of Appeals' solution, we are aware of the
potential problem that troubled the court. It is therefore
appropriate to add a few words on some of the existing procedures
available to federal trial judges in handling claims that involve
examination of an official's state of mind.
When a plaintiff files a complaint against a public official
alleging a claim that requires proof of wrongful motive, the trial
court must exercise its discretion in a way that protects the
substance of the qualified immunity defense. It must
18 Despite the continuing rise in the state and federal prison
populations, the number of prisoner civil rights suits filed in
federal court dropped from 41,215 in fiscal year 1996 (Oct. 1,
1995-Sept. 30, 1996) to 28,635 in fiscal year 1997 (Oct. 1,
1996-Sept. 30, 1997), a decline of 31 percent. Administrative
Office of the United States Courts, L. Mecham, Judicial Business of
the United States Courts: 1997 Report of the Director 131-132
(Table C-2A).
598
exercise its discretion so that officials are not subjected to
unnecessary and burdensome discovery or trial proceedings. The
district judge has two primary options prior to permitting any
discovery at all. First, the court may order a reply to the
defendant's or a third party's answer under Federal Rule of Civil
Procedure 7(a), or grant the defendant's motion for a more definite
statement under Rule 12(e). Thus, the court may insist that the
plaintiff "put forward specific, nonconclusory factual allegations"
that establish improper motive causing cognizable injury in order
to survive a prediscovery motion for dismissal or summary judgment.
Siegert v.
Gilley, 500 U. S. 226, 236 (1991)
(KENNEDY, J., concurring in judgment). This option exists even if
the official chooses not to plead the affirmative defense of
qualified immunity. Second, if the defendant does plead the
immunity defense, the district court should resolve that threshold
question before permitting discovery.
Harlow, 457 U. S., at
818. To do so, the court must determine whether, assuming the truth
of the plaintiff's allegations, the official's conduct violated
clearly established law.19 Because the former option of demanding
more specific allegations of intent places no burden on the
defendant-official, the district judge may choose that alternative
before resolving the immunity question, which sometimes requires
complicated analysis of legal issues.
If the plaintiff's action survives these initial hurdles and is
otherwise viable, the plaintiff ordinarily will be entitled to some
discovery. Rule 26 vests the trial judge with broad discretion to
tailor discovery narrowly and to dictate the sequence of discovery.
On its own motion, the trial court
"may alter the limits in [the Federal Rules] on the number of
depositions and interrogatories and may also limit the length of
depositions under Rule 30 and the number
19 If the district court enters an order denying the defendant's
motion for dismissal or summary judgment, the official is entitled
to bring an immediate interlocutory appeal of that legal ruling on
the immunity question.
Johnson v.
Jones, 515 U. S. 304, 313,
319-320 (1995).
599
of requests under Rule 36. The frequency or extent of use of the
discovery methods otherwise permitted under these rules ... shall
be limited by the court if it deter mines that ... (iii) the burden
or expense of the proposed discovery outweighs its likely benefit,
taking into account the needs of the case, the amount in
controversy, the parties' resources, the importance of the issues
at stake in the litigation, and the importance of the proposed
discovery in resolving the issues." Rule 26(b)(2).
Additionally, upon motion the court may limit the time, place,
and manner of discovery, or even bar discovery altogether on
certain subjects, as required "to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense."
Rule 26(c). And the court may also set the timing and sequence of
discovery. Rule 26(d).
These provisions create many options for the district judge. For
instance, the court may at first permit the plaintiff to take only
a focused deposition of the defendant before allowing any
additional discovery. See, e. g., Martin, 812 F. 2d, at 1437
(opinion of R. B. Ginsburg, J.). Alternatively, the court may
postpone all inquiry regarding the official's subjective motive
until discovery has been had on objective factual questions such as
whether the plaintiff suffered any injury or whether the plaintiff
actually engaged in protected conduct that could be the object of
unlawful retaliation. The trial judge can therefore manage the
discovery process to facilitate prompt and efficient resolution of
the lawsuit; as the evidence is gathered, the defendant-official
may move for partial summary judgment on objective issues that are
potentially dispositive and are more amenable to summary
disposition than disputes about the official's intent, which
frequently turn on credibility assessments.20 Of course, the
20 The judge does, however, have discretion to postpone ruling
on a defendant's summary judgment motion if the plaintiff needs
additional discovery to explore "facts essential to justify the
party's opposition." Rule 56(f).
600
judge should give priority to discovery concerning issues that
bear upon the qualified immunity defense, such as the actions that
the official actually took, since that defense should be resolved
as early as possible. See
Anderson, 483 U. S., at 646, n.
6.21
Beyond these procedures and others that we have not mentioned,
summary judgment serves as the ultimate screen to weed out truly
insubstantial lawsuits prior to trial. At that stage, if the
defendant-official has made a properly supported motion,22 the
plaintiff may not respond simply with general attacks upon the
defendant's credibility, but rather must identify affirmative
evidence from which a jury could find that the plaintiff has
carried his or her burden of proving the pertinent motive.
Liberty Lobby, 477 U. S., at 256-257. Finally, federal trial
judges are undoubtedly familiar with two additional tools that are
available in extreme cases to protect public officials from undue
harassment: Rule 11, which authorizes sanctions for the filing of
papers that are frivolous, lacking in factual support, or
"presented for any improper purpose, such as to harass"; and 28 U.
S. c. § 1915(e)(2) (1994 ed., Supp. II), which authorizes dismissal
"at any time" of
in forma pauperis suits that are "frivolous
or malicious."
It is the district judges rather than appellate judges like
ourselves who have had the most experience in managing cases in
which an official's intent is an element. Given the
21 If the official seeks summary judgment on immunity grounds
and the court denies the motion, the official can take an immediate
interlocutory appeal, even if she has already so appealed a prior
order.
Behrens v.
Pelletier, 516 U. S. 299, 311
(1996).
22 "Of course, a party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of 'the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,' which it believes
demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v.
Catrett, 477 U. S. 317, 323 (1986)
(quoting Fed. Rule Civ. Proc. 56(c)).
601
wide variety of civil rights and "constitutional tort" claims
that trial judges confront, broad discretion in the management of
the factfinding process may be more useful and equitable to all the
parties than the categorical rule imposed by the Court of
Appeals.
The judgment of the Court of Appeals is vacated, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY, concurring.
Prisoner suits under 42 U. s. C. § 1983 can illustrate our legal
order at its best and its worst. The best is that even as to
prisoners the government must obey always the Constitution. The
worst is that many of these suits invoke our basic charter in
support of claims which fall somewhere between the frivolous and
the farcical and so foster disrespect for our laws.
We must guard against disdain for the judicial system.
As Madison reminds us, if the Constitution is to endure, it must
from age to age retain "th[e] veneration which time bestows." James
Madison, The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The
analysis by THE CHIEF JUSTICE addresses these serious concerns. I
am in full agreement with the Court, however, that the authority to
propose those far-reaching solutions lies with the Legislative
Branch, not with us.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR joins,
dissenting.
The petition on which we granted certiorari in this case
presents two questions. The first asks:
"In a case against a government official claiming she retaliated
against the plaintiff for his exercise of First Amendment rights,
does the qualified immunity doctrine require the plaintiff to prove
the official's unconstitu-
602
tional intent by 'clear and convincing' evidence?" Pet. for
Cert. i.
The Court's opinion gives this question an extensive treatment,
concluding that our cases applying the affirmative defense of
qualified immunity provide no basis for placing "a thumb on the
defendant's side of the scales when the merits of a claim that the
defendant knowingly violated the law are being resolved."
Ante, at 593.
The second question presented asks:
"In a First Amendment retaliation case against a government
official, is the official entitled to qualified immunity if she
asserts a legitimate justification for her allegedly retaliatory
act and that justification would have been a reasonable basis for
the act, even if evidenceno matter how strong-shows the official's
actual reason for the act was unconstitutional?" Pet. for Cert.
i.
The Court does not explicitly discuss this question at all. Its
failure to do so is both puzzling and unfortunate. Puzzling,
because immunity is a "threshold" question that must be addressed
prior to consideration of the merits of a plaintiff's claim.
Harlow v.
Fitzgerald, 457 U. S. 800, 818
(1982). Unfortunate, because in assuming that the answer to the
question is "no," the Court establishes a precedent that is in
considerable tension with, and significantly undermines,
Harlow.
I would address the question directly, and conclude, along the
lines suggested by Judge Silberman below, that a government
official who is a defendant in a motive-based tort suit is entitled
to immunity from suit so long as he can offer a legitimate reason
for the action that is being challenged, and the plaintiff is
unable to establish, by reliance on objective evidence, that the
offered reason is actually a pretext. This is the only result that
is consistent with
Harlow and the purposes of the qualified
immunity doctrine.
603
In
Harlow, respondent A. Ernest Fitzgerald brought a suit
claiming that White House aides Bryce Harlow and Alexander
Butterfield, acting in concert with President Richard Nixon and
others, had conspired to deprive him of his job, deny him
reemployment, and besmirch his reputation.
Nixon v.
Fitzgerald, 457 U. S. 731, 738-739,
n. 18 (1982). Harlow and Butterfield claimed that they were immune
from this suit, and we granted certiorari to determine "the
immunity available to the senior aides and advisers of the
President."
Harlow, 457 U. S., at 806. We first concluded
that unlike the President, senior White House aides were not
necessarily entitled to absolute immunity. We next concluded,
however, that petitioners were entitled to "application of the
qualified immunity standard that would permit the defeat of
insubstantial claims without resort to trial."
Id., at
813.
In applying that standard in
Harlow we did not write on a
blank slate. The notion that government officials are sometimes
immune from suit has been present in our jurisprudence since at
least
Osborn v.
Bank of United States, 9 Wheat. 738,
865-866 (1824). By the time we took up the question in
Harlow, we had come to understand qualified immunity as an
affirmative defense that had both an "objective" and a "subjective"
aspect. See,
e. g., Wood v.
Strickland, 420 U. S. 308, 322
(1975).
In
Harlow, however, we noted that application of the
subjective element of the test had often produced results at odds
with the doctrine's purpose. First, some courts had considered an
official's subjective good faith to be a question of fact
"inherently requiring resolution by a jury," making it impossible
to accomplish the goal that "insubstantial claims" not proceed to
trial. 457 U. S., at 816. Second, we noted that there were "special
costs" to inquiries into a government official's subjective good
faith. Such inquiries were "broad-ranging," intrusive, and
personal, and were thought to be "peculiarly disruptive of
effective government."
Id., at 817.
604
Recognizing these problems, we "purged" qualified immunity
doctrine of its subjective component and remolded it so that it
turned entirely on "objective legal reasonableness," measured by
the state of the law at the time of the challenged act.
Mitchell v.
Forsyth, 472 U. S. 511, 517
(1985);
Harlow, supra, at 819. This new rule eliminated the
need for the disruptive inquiry into subjective intent, ensured
that insubstantial suits would still be subject to dismissal prior
to trial, and had the additional benefit of allowing officials to
predict when and under what circumstances they would be required to
stand trial for actions undertaken in the course of their work.
See,
e. g., Davis v.
Scherer, 468 U. S. 183, 195 (1984)
("The qualified immunity doctrine recognizes that officials can act
without fear of harassing litigation only if they reasonably can
anticipate when their conduct may give rise to liability for
damages and only if unjustified lawsuits are quickly terminated").
Since then we have held that qualified immunity was to apply
"across the board" without regard to the "precise nature of various
officials' duties or the precise character of the particular rights
alleged to have been violated."
Anderson v.
Creighton, 483
U. S. 635, 642643 (1987).
Applying these principles to the type of motive-based tort suit
at issue here, it is obvious that some form of qualified immunity
is necessary, and that whether it applies in a given case must turn
entirely on objective factors. It is not enough to say that because
(1) the law in this area is "clearly established," and (2) this
type of claim always turns on a defendant official's subjective
intent, that (3) qualified immunity is therefore never available.
Such logic apparently approves the "protracted and complex,"
ante, at 579, course of litigation in this case, runs afoul
of
Harlow's concern that insubstantial claims be prevented
from going to trial, and ensures that officials will be subject to
the "peculiarly disruptive" inquiry into their subjective intent
that the
Harlow
605
rule was designed to prevent.1 Such a rule would also allow
plaintiffs to strip defendants of
Harlow's protections by a
simple act of pleading-any minimally competent attorney (or
pro
se litigant) can convert any adverse decision into a
motive-based tort, and thereby subject government officials to some
measure of intrusion into their subjective worlds.
Such a result is quite inconsistent with the logic and
underlying principles of
Harlow.2 In order to preserve the
protections that
Harlow conferred, it is necessary to
construct a qualified immunity test in this context that is also
based exclusively on objective factors, and prevents plaintiffs
from engaging in "peculiarly disruptive" subjective investigations
until after the immunity inquiry has been resolved in their favor.
The test I propose accomplishes this goal. Under this test, when a
plaintiff alleges that an official's action was taken with an
unconstitutional or otherwise unlawful motive, the defendant will
be entitled to immunity and immediate dismissal of the suit if he
can offer a lawful reason for his action and the plaintiff cannot
establish, through objective evidence, that the offered reason is
actually a pretext.
1 The Court suggests that the
Wood v.
Strickland
subjective inquiry that we stripped from the qualified immunity
analysis in
Harlow is somehow different from the inquiry
into subjective intent involved in resolution of a motive-based
tort claim.
Ante, at 592. While the inquiries may differ
somewhat in terms of what precisely is being asked, this difference
is without relevance for the purposes of qualified immunity
doctrine. Both inquiries allow a plaintiff to probe the official's
state of mind, and therefore both types of inquiry have the
potential to be "peculiarly disruptive" to effective
government.
2 This result also threatens to "Balkanize" the rule of
qualified immunity.
Anderson v.
Creighton, 483 U. S. 635, 646, 643
(1987) ("[W]e have been unwilling to complicate qualified immunity
analysis by making the scope or extent of immunity turn on the
precise nature of various officials' duties or the precise
character of the particular rights alleged to have been violated.
An immunity that has as many variants as there are modes of
official action and types of rights would not give conscientious
officials that assurance of protection that it is the object of the
doctrine to provide").
606
The Court's interpretation of
Harlow does not differ from
mine. See
ante, at 588 ("Under [the
Harlow] standard,
a defense of qualified immunity may not be rebutted by evidence
that the defendant's conduct was malicious or otherwise improperly
motivated. Evidence concerning the defendant's subjective intent is
simply irrelevant to that defense"). The Court does not, however,
carry the
Harlow principles to their logical extension. Its
failure to discuss the issue explicitly makes it difficult to
understand exactly why it rejects my position, but there appear to
be two possibilities.
First, the Court appears concerned that an extension of
Harlow qualified immunity to motive-based torts will mean
that some meritorious claims will go unredressed.
Ante, at
591 ("Social costs that adequately justified the elimination of the
subjective component of an affirmative defense do not necessarily
justify serious limitations upon 'the only realistic' remedy for
the violation of constitutional guarantees"). This is perhaps true,
but it is not a sufficient reason to refuse to apply the doctrine.
Every time a privilege is created or an immunity extended, it is
understood that some meritorious claims will be dismissed that
otherwise would have been heard. Courts and legislatures craft
these immunities because it is thought that the societal benefit
they confer outweighs whatever cost they create in terms of
unremedied meritorious claims. In crafting our qualified immunity
doctrine, we have always considered the public policy implications
of our decisions. See,
e. g.,
Wyatt v.
Cole,
504 U. S. 158,
167 (1992).
In considering those implications here, it is desirable to
reflect on the subspecies of First Amendment claims which we
address in this case. Respondent Britton is a District of Columbia
corrections officer; petitioner Crawford- EI is a District of
Columbia prisoner who was transferred from Spokane, Washington, to
Marianna, Florida, with intermediate stops along the way. The
action of Britton's that gave rise to this lawsuit was asking
Crawford-El's brother-in-law to
607
pick up boxes of the former's belongings for delivery to him,
rather than shipping them directly to him in Florida. This act,
considered by itself, would seem to be about as far from a
violation of the First Amendment as can be conceived. But
Crawford-EI has alleged that Britton's decision to deliver his
belongings to a relative was motivated by a desire to punish him
for previous interviews with reporters that he had given, and
lawsuits that he had filed. This claim of illicit motive,
Crawford-EI asserts, transforms a routine act in the course of
prison administration into a constitutional tort.
The Court cites
Pickering v.
Board of Ed. of Township
High School Dist. 205, Will Cty., 391 U. S. 563 (1968), as
an example of this sort of tort.
Ante, at 585, n. 9. But
Pickering is but a distant cousin to the present case; there
the school board plainly stated that its reason for discharging the
plaintiff teacher was his writing of a letter to a newspaper
criticizing the board. It was not motivation that was disputed, but
whether the First Amendment protected the writing of the letter.
Closer in point is
Branti v.
Finkel, 445 U. S. 507 (1980),
also cited by the Court, but there the act complained of was the
dismissal of Republican assistants by the newly appointed
Democratic public defender. Objective evidence-the discharging of
members of one party by the newly appointed supervisor of another
party, and their replacement by members of the supervisor's
party-would likely have served to defeat a claim of qualified
immunity had the defendant official attempted to offer a legitimate
reason for firing the Republican assistants. Thus, the defendants
in neither
Pickering nor
Branti would have been
entitled to qualified immunity under the approach that I
propose.
Still more distantly related to the facts of the present case
are what I would call primary First Amendment cases, where the
constitutional claim does not depend on motive at all. Examples of
these are
Reno v.
American Civil Liberties Union,
521 U. S. 844
(1997) (finding portions of the Communications Decency Act
unconstitutional under the First
608
Amendment);
Barnes v.
Glen Theatre, Inc., 501 U. S. 560 (1991)
(concluding that Indiana statute regulating nude dancing did not
violate First Amendment);
Brown v.
Hartlage, 456 U. S. 45 (1982)
(invalidating Kentucky statute that limited the speech of
candidates for office);
Nebraska Press Assn. v.
Stuart, 427 U.
S. 539 (1976) (invalidating judge's order prohibiting reporting
or commentary on murder trial);
Southeastern Promotions,
Ltd. v.
Conrad, 420 U. S. 546 (1975)
(finding denial of permission to use municipal theater for showing
of Hair to be unconstitutional prior restraint);
New York Times
Co. v.
United States, 403 U. S. 713 (1971)
(per curiam) (refusing to enjoin publication of contents of
classified study).
The great body of our cases involving freedom of speech would,
therefore, be unaffected by this approach to qualified immunity. It
would apply prototypically to a case such as the present one: A
public official is charged with doing a routine act in the normal
course of her duties-an act that by itself has absolutely no
connection with freedom of speech-but she is charged with having
performed that act out of a desire to retaliate against the
plaintiff because of his previous exercise of his right to speak
freely. In this case, there was surely a legitimate reason for
respondent's action, and there is no evidence in the record before
us that shows it to be pretextual. Under the Court's view, only a
factfinder's ultimate determination of the motive with which she
acted will resolve this case. I think the modest extension of
Harlow which I propose should result in a judgment of
qualified immunity for respondent.
Also relevant to a consideration of the costs my proposed rule
would incur is that this suit is a request for damages brought
under § 1983. If the purpose of § 1983 is to "deter state actors
from using the badge of their authority to deprive individuals of
their federally guaranteed rights and to provide relief to victims
if such deterrence fails," it is hard to see how that purpose is
substantially advanced if petition-
609
er's suit is allowed to proceed.
Wyatt v.
Cole,
504 U. S., at 161. Petitioner has already fully exercised his
"federally guaranteed rights." Providing compensation to him, even
if his claim is meritorious, will foster increased constitutional
freedoms only for the hypothetical subsequent individual who, given
the imposition of liability in this case, will not be deterred from
exercising his First Amendment rights out of fear that respondent
would retaliate by misdirecting his belongings.
The costs of the extension of
Harlow that I propose would
therefore be minor. The benefits would be significant, and we have
recognized them before. As noted above, inquiries into the
subjective state of mind of government officials are "peculiarly
disruptive of effective government" and the threat of such
inquiries will in some instances cause conscientious officials to
shrink from making difficult choices.3
The policy arguments thus point strongly in favor of extending
immunity in the manner I suggest. The Court's opinion, however,
suggests a second reason why this rule might be unnecessary. The
Court assumes that district court judges alert to the dangers of
allowing these claims
3 This point has perhaps been made most elegantly by Judge
Learned Hand, who, in an oft-cited passage, wrote:
"It does indeed go without saying that an official, who is in
fact guilty of using his powers to vent his spleen upon others ...
should not escape liability for the injuries he may so cause; and,
if it were possible in practice to confine such complaints to the
guilty, it would be monstrous to deny recovery. The justification
for doing so is that it is impossible to know whether the claim is
well founded until the case has been tried, and that to submit all
officials, the innocent as well as the guilty, to the burden of a
trial and to the inevitable danger of its outcome, would dampen the
ardor of all but the most resolute, or the most irresponsible, in
the unflinching discharge of their duties .... As is so often the
case, the answer must be found in a balance between the evils
inevitable in either alternative. In this instance it has been
thought in the end better to leave unredressed the wrongs done by
dishonest officers than to subject those who try to do their duty
to the constant dread of retaliation."
Gregoire v.
Biddle, 177 F.2d 579, 581 (CA2 1949), cert. denied, 339 U.
S. 949 (1950).
610
to proceed can protect defendants by judicious and skillful
manipulation of the Federal Rules of Civil Procedure.
Ante,
at 597-601. I have no doubt that, as a general matter, district
court judges are entirely capable in this regard. But whether a
defendant is entitled to protection against the "peculiarly
disruptive" inquiry into subjective intent should not depend on the
willingness or ability of a particular district court judge to
limit inquiry through creative application of the Federal Rules.
The scope of protection should not vary depending on the district
in which the plaintiff brings his suit. Cf.
Anderson v.
Creighton, 483 U. S., at 643 ("An immunity that has as many
variants as there are modes of official action and types of rights
would not give conscientious officials that assurance of protection
that it is the object of the doctrine to provide"). Indeed, the
inconsistency with which some District Courts had applied the
Wood v.
Strickland subjective good-faith inquiry was
one of the reasons why the
Harlow Court stripped qualified
immunity of its subjective component.
Harlow, 457 U. S., at
816 ("And an official's subjective good faith has been considered
to be a question of fact that some courts have regarded as
inherently requiring resolution by a jury").
My proposed rule would supply officials with the consistency and
predictability that
Harlow and its progeny have identified
as an underlying purpose of qualified immunity doctrine, without
eliminating motive-based torts altogether. The Court's solution,
which is dependent on the varying approaches of 700-odd district
court judges, simply will not; at the end of the day, many cases
will still depend on a factfinder's decision as to motivation. No
future defendant in respondent's position can know with any
certainty that the simple act of delivering a prisoner's belongings
in one way rather than another will not result in an extensive
investigation of her state of mind at the time she did so. This
result is simply not faithful to
Harlow's underlying
concerns.
611
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
As I have observed earlier, our treatment of qualified immunity
under 42 U. S. C. § 1983 has not purported to be faithful to the
common-law immunities that existed when § 1983 was enacted, and
that the statute presumably intended to subsume. See
Burns
v.
Reed, 500
U. S. 478, 498, n. 1 (1991) (SCALIA, J., concurring in judgment
in part and dissenting in part). That is perhaps just as well. The
§ 1983 that the Court created in 1961 bears scant resemblance to
what Congress enacted almost a century earlier. I refer, of course,
to the holding of
Monroe v.
Pape, 365 U. S. 167 (1961),
which converted an 1871 statute covering constitutional violations
committed
"under color of any statute, ordinance,
regulation, custom, or usage of any State," Rev. Stat. § 1979, 42
U. S. C. § 1983 (emphasis added), into a statute covering
constitutional violations committed
without the authority of
any statute, ordinance, regulation, custom, or usage of any State,
and indeed even constitutional violations committed in stark
violation of state civil or criminal law. See
Monroe, 365 U.
S., at 183; id., at 224-225 (Frankfurter, J., dissenting). As
described in detail by the concurring opinion of Judge Silberman in
this case, see
93 F.3d
813, 829 (CADC 1996),
Monroe changed a statute that had
generated only 21 cases in the first 50 years of its existence into
one that pours into the federal courts tens of thousands of suits
each year, and engages this Court in a losing struggle to prevent
the Constitution from degenerating into a general tort law. (The
present suit, involving the constitutional violation of
misdirecting a package, is a good enough example.) Applying normal
common-law rules to the statute that
Monroe created would
carry us further and further from what any sane Congress could have
enacted.
We find ourselves engaged, therefore, in the essentially
legislative activity of crafting a sensible scheme of qualified
612
immunities for the statute we have invented-rather than applying
the common law embodied in the statute that Congress wrote. My
preference is, in undiluted form, the approach suggested by Judge
Silberman's concurring opinion in the Court of Appeals: extending
the "objective reasonableness" test of
Harlow v.
Fitzgerald, 457 U. S. 800 (1982), to
qualified immunity insofar as it relates to intent-based
constitutional torts.
THE CHIEF JUSTICE'S opinion sets forth a test that is "along the
lines suggested by Judge Silberman,"
ante, at 602, but that
differs in a significant respect: It would allow the introduction
of "objective evidence" that the constitutionally valid reason
offered for the complained-of action "is actually a pretext."
Ibid. This would consist, presumably, of objective evidence
regarding the state official's subjective intent-for example,
remarks showing that he had a partisanpolitical animus against the
plaintiff. The admission of such evidence produces a less
subjective-free immunity than the one established by
Harlow.
Under that case, once the trial court finds that the constitutional
right was not well established, it will not admit any "objective
evidence" that the defendant
knew he was violating the
Constitution. The test I favor would apply a similar rule here:
once the trial court finds that the asserted grounds for the
official action were objectively valid (e. g., the person fired for
alleged incompetence was indeed incompetent), it would not admit
any proof that something other than those reasonable grounds was
the genuine motive (e. g., the incompetent person fired was a
Republican). This is of course a more severe restriction upon
"intent-based" constitutional torts; I am less put off by that
consequence than some may be, since I believe that
no
"intent-based" constitutional tort would have been actionable under
the § 1983 that Congress enacted.
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